Programming note

As many have surely noticed, while we have covered the major issues that have arisen, the pace of posts here at Filewrapper has slowed down of late. This is a reflection of the recent demands of the actual practice of law. The good news is the blogging pace should pick up soon, and look for the rate of posts to be back at its normal level in the coming weeks.

Patry copyright blog is no more

It's a sad day in the blogosphere, as Bill Patry, author of Patry on Copyright and the Patry Copyright Blog, has announced he is shutting down his blog.  We've linked to Professor Patry's commentary on copyright law on many occasions, and his additional insight into copyright issues will be missed.

Other blogs noting his departure:

He provides two reasons for his departure, the second of which is "profoundly depressing," as it is due to the current state of copyright law:

I regard myself as a centrist. I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries. I accept that the level of proper doses will vary from person to person and that my recommended dose may be lower (or higher) than others. But in my view, and that of my cherished brother Sir Hugh Laddie, we are well past the healthy dose stage and into the serious illness stage. Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent.

His voice will be missed in the blogosphere.

Update:  Based on the response online, Mr. Patry has decided to put the blog's archives back online.

The clear target of the new continuation and claim limit rules: Thomas Edison

This was received over email today.  While we have not verified the information, it shows that the new rules arguably do not "Promote the Progress of Science and Useful Arts."


Before the new rules, one New Jersey inventor amassed 394 patents with more than 5 independent claims, 21 of which had more than 25 total claims.  This, of course is now prohibited by 37 C.F.R. § 1.75(b)(1).  Furthermore, this same inventor slid by without filing any of the 7,326 separate statements about co-pending applications that are now required by 37 C.F.R. § 1.78(f)(1)(i), or any of the 243 terminal disclaimers under 37 C.F.R. § 1.78(f)(2)(ii)(A) or explanations under 37 C.F.R. § 1.78(f)(2)(ii)(B) for the applications filed on the same day with the exact same title.  While this inventor did not file any continuation application, 67 times he obtained more than three patents with identical titles, once obtaining 37 different patents with the exact same title, with a total of 188 claims.  286 times he obtained patents with the same titles with more than 15 total independent claims, and 53 times he obtained patents with the same titles with more than 75 total claims, which would now be nearly impossible under 37 C.F.R. § 1.75(b)(1).   THANK GOODNESS that Commissioner Dudas has put a stop to the likes of Thomas Alva Edison, what would become of us if we had more like him?

I just completed an analysis of all 1093 of Thomas Edison’s patents.  These statistics don’t even include applications Edison filed that did not issue, or the rejected claims in the patents that did issue.  Even with a lot more work, Edison probably could not have obtained equivalent protection.  Because he violated the 5/25 rule on at least 394 occasions, he would have had to file and prosecute at least that many more applications.  He also would have had to file 7326 statements under § 1.78(f)(1), as many as 72 on a single day, and 243 terminal disclaimers under 37 C.F.R. § 1.78(f)(2)(ii)(A) or explanations under 37 C.F.R. § 1.78(f)(2)(ii)(B).  He doubtless would have lost at least some of his protection in the 67 instances where he had four or more patents with the same title, and in the 286 patents in patent families where the total number of independent claims exceeded 15, and in the 53 patents in patent families where the total number of claims exceeded 75.  Destroying the incentive to invent such trifles as the electric lamp, the stock ticker, the phonograph, and movies is a small price to pay for the convenience of Patent Office management.

PS:  Don't forget that -- because nobody in their right mind would ever choose the torturous option of filing an ESD -- the rules amount to two fundamental changes:
(1) The 5/25 rule of 5 independent claims and 25 claims total per invention; and
(2) The 2+1 rule of 2 continuations and 1 RCE as of right per patent family (stemming from a common parent/priority document).
All the other new rules are implemented to help enforce those two fundamentals.

Update (10/18):  This was apparently taken from research done by LegalMetric.  The data can be obtained here.

The Federal Circuit turns 25

Today marks the 25th anniversary of the existence of the United States Court of Appeals for the Federal Circuit.  On April 2, 1982, President Reagan signed the Federal Courts Improvement Act, Pub. L. No. 97-164, 96 Stat. 25, which created the Federal Circuit.  The Act took effect on October 1, 1982, which marked the date when the Federal Circuit came into existence.  The court represents the combination of the Court of Customs and Patent Appeals and the United States Court of Claims.  The court officially celebrated its anniversary on April 2, the anniversary of the signing of the Act.  Interestingly, the conversion to the court's new domain name takes place on its anniversary today.

The first case heard and decided by the Federal Circuit after its creation was South Corp. v. United States, 609 F.2d 1368 (Fed. Cir. 1982), an appeal affirming the imposition of foreign repair duties.  It is notable in that the court sat en banc, and officially adopted as binding precedent the previous decisions of its predecessor courts, the Court of Customs and Patent Appeals and the United States Court of Claims.

While most readers of this blog likely think of the Federal Circuit as the source for patent cases, the court's docket is actually only 31% intellectual property cases.  The majority (55%) are administrative appeals comprising personnel claims from, for example, the Merit Systems Protection Board, and veterans claims from the United States Court of Appeals for Veterans Claims.  The remaining cases include appeals involving claims for money damages against the government (11%), most often from the Court of Federal Claims, and less common cases, such as appeals from the International Trade Commission and the Office of Compliance of the United States Congress.

Relevant links:

Since Filewrapper's first post on November 14, 2006, we've blogged about every precedential IP case decided by the Federal Circuit, as well as a few nonprecedential cases, for a total of 115 entries regarding the court's cases.

Federal Circuit changing its domain name effective October 1

According to an announcement on the Federal Circuit's webpage, the court will be changing its domain name effective October 1, 2007.  The change from to will bring the Federal Circuit in line with the other courts of appeal, whose domain names are (where # is the circuit number or "dc" for the DC Circuit).

The new site is not yet up and running, and the old site will be kept active until the end of the year to redirect users.

Happy Valentine's Day!

BlogCFC was created by Raymond Camden. This blog is running version 5.8.001.