Filewrapper®

Category: Legislation


40 Years on, Bayh-Dole is Stronger than Ever
July 29, 2019
Post by Oliver P. Couture, Ph.D.
The Bayh-Dole Act was passed in 1980 and is arguably one of the most successful pieces of bipartisan legislation ever passed. The first line of the Act says, “It is the policy and objective of the Congress to use the patent system to promote the utilization of inventions arising from federally supported research or development….” Since its passage in 1980, the number of granted patents receiving gover.......
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Is Congress Finally Doing their Constitutional Duty?
June 10, 2019
Post by Oliver P. Couture, Ph.D.
On June 4, 5, and 11, 2019 the Senate Intellectual Property Sub-Committee held hearings regarding the new proposed changes to patent statutes, including to Sections 100, 101, and 112. The Sub-Committee will be hearing from a total of 45 witness on both sides of the debate. Most of the attention during the June 4th and 5th hearings were focused on the reform to Section 101, as will likely the June 11th me.......
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Judicial and Executive Branches split over Subject Matter, New Legislation may be Coming
April 10, 2019
Post by Oliver P. Couture, Ph.D.
Earlier this month the U.S. Court of Appeals for the Federal Circuit (CAFC) heard another appeal in the Cleveland Clinic v. True Health cases. In their appeal, one of Cleveland Clinic’s arguments that their claims were valid was because Skidmore deference should apply to the Examiner’s decision to allow the application to issue in light of the Julitis example (Example 29) of the subject matter guidelines.......
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2018 Farm Act has important IP Implications
December 14, 2018
Post by Heidi S. Nebel
At long last, the 2018 Farm bill has been approved by Congress and forwarded to the President for signature. As I blogged earlier, the bill has important Intellectual Property Implications. The first is that it adds PVP protection for asexually reproduced plants. The  addition will allow asexually reproduced plants, which are now protectable under the US Plant Patent statute 35 U.S.C. Section 161, (.......
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Music Modernization Act Signed Into Law
October 11, 2018
Post by Brandon W. Clark
Earlier today, the Music Modernization Act (MMA) was signed into law. The MMA is a sweeping reform to music licensing and copyright related royalty payments and marks the first significant copyright legislation passed in decades. The House unanimously approved the bill in April followed by the Senate unanimously approving the legislation in September. The MMA then returned to the House for approval of th.......
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Bills in Congress would Revoke the PTAB and Restore Patentability of Several Products
August 16, 2018
Post by Patricia A. Sweeney - Of Counsel
Several bills have been introduced in Congress in the last two months that would have a big impact on patent law if passed. The first, introduced at the end of June is HR6264, referred to as The Restoring American Leadership in Innovation Act. Among the provisions of this bill would be elimination of the Patent Trial and Appeal Board (PTAB), the entity created by the March 2013 America Invents Act (AIA)........
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Inter Partes Review Proceedings (IPRs) Do Not Violate Article III of the Constitution per U.S. Supreme Court
April 24, 2018
Post by Jonathan L. Kennedy
The U.S. Supreme held in a 7-2 decision (Justice Gorsuch and Chief Justice Roberts dissenting), Oil States Energy Servs. V. Greene’s Energy Group, LLC, that the Inter Partes Review proceedings, commonly referred to as IPRs, do not violate Article III or the Seventh Amendment. The Court was deciding two primary constitutional challenges: (1) whether IPRs violate Article III of the constitution by assigni.......
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Copyright Small Claims Bill Introduced
December 14, 2017
Post by Brandon W. Clark
Copyright owners are one step closer to being able to pursue copyright infringement actions through a copyright small claims system. A new bipartisan House bill has introduced the Copyright Alternative in Small-Claims Enforcement Act of 2017 (“CASE Act”). The CASE Act, H.R. 3945, was recently introduced by Congressional representatives to create a small claims court within the US Copyright Office, allowi.......
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STRONGER PATENTS ACT
July 07, 2017
Post by Blog Staff
On June 21, 2017, U.S. Senators Chris Coons (D-DE), Tom Cotton (R-AR), Dick Durbin (D-IL), and Mazie Hirono (D-HI) introduced the STRONGER Patents Act of 2017 with the goal of strengthening the U.S. patent system by making it easier and cheaper for patent holders to enforce their patents. STRONGER (Support Technology and Research for Our Nations Growth and Economic Resilience) is based on the STRONG Pate.......
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Software patents in the Federal Circuit‚¬¦ One step forward, two steps back.
October 12, 2016
Post by Blog Staff
Following the United States Supreme Court's ruling in the Alice Corp. v. CLS Bank Int'l, (S. Ct. 2014) case (which held that abstract ideas are not patentable), the software and computer industry has been fighting and clawing to peel back the layers of the decision in hopes of finding some clarity as to what is and is not patentable subject matter. In Alice, the Supreme Court held th.......
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Supreme Court Revisits Standard for Awarding Attorneys' Fees in Copyright Cases
April 28, 2016
Post by Brandon W. Clark
Brandon W. Clark Earlier this week the Supreme Court heard oral arguments addressing the relevant standard for awarding attorneys' fees in cases involving copyright law. The Court's ruling, expected later this spring, will likely have a significant impact on copyright litigation cases. Section 505 of the Copyright Act provides that a district court "may"award a reasonable attorney's fee to a "prevai.......
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Will the U.S. Enact a Federal Trade Secret Law? (Part 4 of Trade Secret Series)
February 02, 2016
Post by Jill N. Link, Pharm.D.
Jill N. Link, Pharm.D. In this Filewrapper® series relating to all things trade secrets, we have previously posted on the role and value of trade secrets (available here), described how the value of trade secrets are commonly assessed (available here), and provided an overview on the current protection schemes available for trade secrets in the U.S. (available here). .......
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Innovation Promotion Act Could Mean Income Deductions for Patents and Other Intellectual Property
August 11, 2015
Post by Jill N. Link, Pharm.D.
  Current tax laws do not permit deductions or other preferential tax treatment for income derived from intellectual property. This may change based on proposed tax reforms. On July 29th the House Ways and Means Committee members Charles Boustany (R-LA) and Richard Neal (D-MA) released a legislative proposal for public comment outlining the Innovation Promotion Act. This Act .......
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Alternative Patent Reform Legislation Proposed in Senate
March 06, 2015
Post by Blog Staff
Even though the America Invents Act is just over 3 years old, patent reform legislation has arisen on several occasions over the past years. The most visible legislative efforts have involved the "Innovation Act" proposed by Senator Goodlatte in 2013, and again in 2015. The version of the Innovation Act introduced in 2013 stalled out in the Senate, but has been re-introduced in the H.......
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Update on "Patent Troll" Legislation in the Wake of the 2014 Elections
December 17, 2014
Post by Blog Staff
In December of 2013, the U.S. House of Representatives passed H.R. 3309, the "Innovation Act," ostensibly to address the problem of abusive patent litigation, sometimes referred to as patent trolling. While H.R. 3309 passed with bipartisan support by an overwhelming margin of 325-91 votes, its companion bill failed to clear the Senate. Failure of the Senate bill is attributable to removal of controve.......
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FDA Releases First "Purple Book" for Biosimilar Products
October 01, 2014
Post by Blog Staff
The Biosimilars Act (BSA) was passed into law on March 23, 2010 with the goal of encouraging the market entry of generic products, similar to the system that exists for generic drugs under the Hatch-Waxman Act. The BSA sets forth an abbreviated approval pathway for biologics through a regulatory demonstration of biosimilarity (i.e. interchangeability). More than 4 years after the BSA went into effect, the FDA h.......
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USPTO Issues Report on Virtual Patent Marking Under the AIA
October 01, 2014
Post by Blog Staff
Among the provisions of the America Invents Act that went into effect on September 16, 2011 was a change to the patent marking provisions contained in 35 U.S.C. § 287(a). Marking an article as with a patent number provides constructive notice to the public that the article is patented, and failure to appropriately mark an article can preclude the recovery of damages for infringement until effective notice is.......
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Should Trade Secret Misappropriation be Federalized?
September 17, 2014
Post by Blog Staff
The legal community (along with bipartisan legislation) has been discussing the creation of a private cause of action under federal laws for trade secret misappropriation – or trade secret theft. In light increased cyber-espionage and the apparent ease in which trade secrets can be misappropriated in the marketplace, Congress has taken an apparent interest in "strengthening" trade secret protection.......
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Federal Trade Secret Protection Proposed in the Senate
June 05, 2014
Post by Blog Staff
Defend Trade Secrets Act of 2014 Senators Chris Coon (D-DE) and Orrin Hatch (R-UT) proposed a bill on April 29, 2014 that would provide federal protection for trade secrets. Under the current state of the law, trade secrets are protected by a combination of various state statutes, state common law, and aspects of contract law. There is no private federal cause of action for appropriation of trade secrets, althoug.......
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Senate Bill Aimed at Combating Cyber Espionage
May 30, 2014
Post by Blog Staff
Senator Carl Levin (D-MI) has introduced a bill called the "Deter Cyber Theft Act" to the Senate floor that would require the Director of National Intelligence to report annually to congressional committees concerning foreign countries that engage in economic and industrial cyber espionage relating to intellectual property and proprietary information owned by U.S. companies. Under the proposed regime, .......
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Senate Consideration on Patent Transparency and Improvements Act Stalls Out
May 22, 2014
Post by Blog Staff
With the House of Representatives passing H.R.3009 Innovation Act in December 2013, the question is now whether the Senate will pass their version of an Innovation Act in the coming months. The Patent Transparency and Improvements Act (S.1720) is similar to the House text, with eight of the eleven major Senate provisions included in the bill approved by the House. The primary distinction is that while the House ap.......
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Bring on the New Year - What is in Store for IP in 2014?
December 31, 2013
Post by Blog Staff
Happy New Year to all of our FilewrapperÒ followers! We hope 2013 was a productive year and wish you the best in 2014. As the New Year quickly approaches we would like to share with you a few predictions for 2014 for you to look forward to and for which to prepare! · Increased opportunities for quasi-litigation under AIA. Various new mechanisms are available to challenge patents under the Am.......
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H.R. 3309 - The Innovation Act
December 17, 2013
Post by Blog Staff
On December 5, 2013, the U.S. House of Representatives passed H.R. 3309, the "Innovation Act", with bipartisan support by an overwhelming margin of 325-91 votes. H.R. 3309 was drafted to address the perceived growing problem of abusive patent litigation attributed to alleged "patent trolls." Early next year, the Senate will likely consider a companion bill, S. 1720, the "Patent Transparency and Improv.......
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Federal Judicial Center - Hot Topics in Patent Litigation
December 12, 2013
Post by Blog Staff
The Federal Judicial Center recently released a Webinar entitled “Hot Topics in Patent Litigation: Actavis, Hatch-Waxman and the Biosimilars Act.” The Webinar focused on recent developments in areas regarding enforcement of patents in the life science area, generic drugs, and generic biologics. The entire webinar is available here; the following are brief highlights: Hatch-Waxman Patent Settlements: .......
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USPTO Proposes Rule Changes for International Design Applications
December 02, 2013
Post by Blog Staff
The U.S. Patent and Trademark Office is seeking comments on it proposed rules for implementing the provisions of Title I of the Patent Law Treaties Implementation Act of 2012. The law is the implementing legislation for the 1999 Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (“the Hague Agreement”). The rules proposed rule changes under the law will.......
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Flawed Evidence Undercuts "Charbucks" Trademark Suit
November 27, 2013
Post by Blog Staff
In Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., the U.S. Court of Appeals for the Second Circuit affirmed a district court’s decision denying injunctive relief in Starbucks’ trademark case against Black Bear Micro Roastery over Black Bear’s use of “Charbucks” for coffee. Starbucks sued Black Bear in 2001, alleging, among other things, trademark dilution in violation of 1.......
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New and Useful - January 23, 2013
January 23, 2013
Post by Blog Staff
· In Wax v. Amazon Techs., the Federal Circuit upheld the TTAB’s denial of registration of the mark AMAZON VENTURES. Applicant filed and intent-to-use application to register the mark for “investment management, raising venture capital for others, . . . and capital investment consultation.” Amazon Technologies, Inc.—online retailer and owner of several AMAZON.COM marks&mdas.......
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Leahy-Smith America Invents Act Reforms Patent Law
September 15, 2011
Post by Blog Staff
The Leahy-Smith America Invents Act goes into effect beginning September 16, 2011. This Act represents the most comprehensive legislative change to patent law since the 1950s. Most significantly, it changes how priority is determined for an invention and expands and revises procedures for administratively challenging patents through the Patent Office instead of the court system. Some of the provisions have imme.......
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Claim and continuation rules dead: thousands of practitioners breathe easier
October 14, 2009
Post by Blog Staff
In a Federal Register notice today, the USPTO has officially withdrawn the claim and continuation rule changes from the Code of Federal Regulations. This is consistent with a press release from Thursday announcing the rules were no longer going to be pursued. The summary of the notice:The United States Patent and Trademark Office (Office) published a final rule in the Federal Register in August of 2007 to re.......
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Digital Britain: The UK Government's vision for a 21st century digital economy
July 07, 2009
Post by Blog Staff
Last month, the UK Department for Culture, Media, and Sport released Digital Britain, a report regarding the future of communications infrastructure in the UK, how to deal with challenges of a digital economy (such as copyright infringement), and containing policy recommendations regarding how to move forward. Click below for our thoughts on the report and associated documents.The Digital Britain report is the U.......
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Federal Circuit to hear claim and continuation rule case en banc
July 06, 2009
Post by Blog Staff
In an order this afternoon, the Federal Circuit agreed to hear en banc Tafas v. Doll, the case challenging the USPTO's claim and continuation rules. Back in March, a panel of the court held, in a 2-1 decision, the limits on continuation applications were invalid, but the remainder of the rules were not invalid, at least for the reasons given by the district court.In the order, the court set forth the brief.......
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Patent Reform Act of 2009 back before Senate Judiciary Committee today to consider compromise
April 02, 2009
Post by Blog Staff
Today at 10:00 Eastern time the Senate Judiciary Committee will hold an executive business meeting to discuss the Patent Reform Act of 2009. The committee will consider some proposed amendments that represent a compromise on several key issues that have been points of contention over the course of the past several years when patent reform has been on the legislative agenda. Among these is the issues of damage.......
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Continuation rules appeal decided; continuation limit invalid; RCE limit and ESD requirements valid
March 20, 2009
Post by Blog Staff
This morning the Federal Circuit released its opinion in Tafas v. Doll (formerly Tafas v. Dudas), the case addressing the validity of the USPTO's claim and continuation rules. The court holds all of the rules at issue are procedural rather than substantive, reversing the district court on this issue. In spite of this conclusion, the court holds the limit on continuation applications conflicts with 35 U.S.C.......
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Patent reform back again for 2009
March 04, 2009
Post by Blog Staff
Yesterday Senators Patrick Leahy and Orrin Hatch (chairman and ranking member of the Senate Judiciary Committee) and Representatives John Conyers and Lamar Smith (chairman and ranking member of the House Judiciary Committee) introduced the Patent Reform Act of 2009. Click below for more detail of the newly-introduced legislation, as well as links to other coverage of the legislation and press releases by .......
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Federal Circuit holds oral arguments in claim and continuation limit rules case
December 09, 2008
Post by Blog Staff
On Friday, the Federal Circuit heard oral argument in the consolidated cases challenging the USPTO's new claim and continuation limit rules. You can download the audio of the arguments here. While it is, of course, too early to tell whether the Federal Circuit will affirm the permanent injunction against implementation of the rules, the tenor of the oral argument seems to indicate the court was skeptical o.......
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Effective date of new BPAI appeal rules delayed pending completion of OMB review
December 09, 2008
Post by Blog Staff
Gene Quinn at the PLI Patent Law Blog reports that the new BPAI appeal brief rules, which were scheduled to go into effect for all appeal briefs filed on or after tomorrow, December 10, will be delayed. The Office of Management and Budget is still considering the various submissions and comments regarding the rules, including comments regarding the burden on practitioners to comply with the rules.This is rela.......
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USPTO to implement annual maintenance fee for patent practitioners
November 17, 2008
Post by Blog Staff
In today's Federal Register, the USPTO has indicated its implementation of a final rule to begin collecting annual "maintenance fees" from practitioners registered to practice before the USPTO. The notice states the fees "will recover the estimated average cost to the Office for the roster maintenance process, including the costs of operating the disciplinary system."The rules are slated.......
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Roundup of recent USPTO federal register notices: patent agent practice, fees, new rules and more
August 17, 2008
Post by Blog Staff
It's been a busy few weeks in rulemaking at the USPTO, with several notices recently posted that deserve attention. The notices relate to increases in fees for Fiscal Year 2009 because of the consumer price index, increases for PCT fees (and a correction), the scope of permissible practice of patent agents and changes to disciplinary procedures, the effective date of the currently-enjoined rules on applicatio.......
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USPTO publishes two new proposed rules packages for trademark cases
June 12, 2008
Post by Blog Staff
Today's Federal Register brings with it two sets of proposed rule changes from the USPTO, both dealing with prosecution of trademark cases.The first, entitled "Changes in Requirements for Signature of Documents, Recognition of Representatives, and Establishing and Changing the Correspondence Address in Trademark Cases," addresses the requirements for powers of attorney and similar documents in trade.......
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USPTO publishes new rules for ex parte appeals before the BPAI
June 10, 2008
Post by Blog Staff
In today's Federal Register, the USPTO has posted revised rules of practice for ex parte appeals before the Board of Patent Appeals and Interferences. These are the final version of the rules initially proposed nearly a year ago. The rules were hinted at in a press release issued by the USPTO yesterday, and now we have the full details of the new rules. Among the highlights:Elimination of the requirement.......
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USPTO files notice of appeal in claim and continuation rules case
May 07, 2008
Post by Blog Staff
As expected, this morning the USPTO filed a notice of appeal to the Federal Circuit in the lawsuit challenging its new claim and continuation rules. The USPTO will seek reversal of the district court's order finding the new rules exceeded the USPTO's rulemaking authority.We'll continue to monitor the case as it proceeds through briefing and oral argument before the Federal Circuit. Expect a simil.......
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What's new at the USPTO: Markush rules comments, new PPH, and pre-first action interview pilot
May 02, 2008
Post by Blog Staff
There have been a few new things relevant to the USPTO in the past couple of weeks that we haven't had a chance to talk about. They include more comments regarding the proposed rules regarding Markush claims, a new Patent Prosecution Highway with the European Patent Office, and a pilot program where patent applicants would be able to have an interview to discuss a proposed first office action with the examin.......
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Patent Reform once again dead in the water?
April 14, 2008
Post by Blog Staff
Negotiations on a compromise version of the Patent Reform Act of 2007 (S.1145) broke down late last week, and now it appears that the bill may not be considered before the full Senate before its next recess in May, if at all.The breakdown occurred over the controversial damages apportionment provision in the bill. One of the bill's previous supporters, Senator Arlen Specter, pulled his support of the bill .......
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No April Fools joke: Continuation and claim limit rules held invalid; permanently enjoined
April 01, 2008
Post by Blog Staff
In a ruling today regarding the parties' motions for summary judgment in the consolidated cases challenging the USPTO's new claim and continutation rules, Judge Cacheris ruled the rules were invalid, and permanently enjoined their enforcement. We'll have more once we've had a chance to review the opinion.Click below for the relevant documents.Order granting Tafas and GSK motions for summary jud.......
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15 different amendments proposed to Senate version of Patent Reform Act of 2007
March 14, 2008
Post by Blog Staff
The Patent Reform Act of 2007 (S.1145) keeps plodding along in the Senate. Just over a month after the Senate Judiciary Committee released its report on the bill, there have now been 15 amendments circulated for possible consideration when the full Senate takes up the bill, with the potential for more to come before the bill is actually considered. The Senate is expected to address the bill sometime in the co.......
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USPTO proposes rules requiring deposit of biological material before publication of application
February 20, 2008
Post by Blog Staff
In today's Federal Register, the USPTO proposes rules that will alter when a deposit of biological material is required to be made when such a deposit is used to satisfy the requirements of 35 U.S.C. § 112. Specifically, the proposed rule will require that a deposit, if necessary, be made before the application is published. Under current practice, 37 C.F.R. § 1.804 provides that a deposit, if ne.......
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Summary of today's summary judgment hearing in the claim and continuation rule cases
February 08, 2008
Post by Blog Staff
As we reported earlier, Judge Cacheris took the parties' motions for summary judgment under advisement in the consolidated cases challenging the USPTO's claim and continuation rules. Below is a summary of the hearing from our representative who was in attendance. Tafas and GSK butted heads with the USPTO again today in front of a packed courtroom in the Eastern District of Virginia. Interested onlookers.......
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Motions for summary judgment in claim and continuation rules case taken under advisement
February 08, 2008
Post by Blog Staff
We've just received word that the hearing on the motions for summary judgment in the consolidated cases challenging the USPTO's claim and continuation rules has concluded, and the motions have been taken under advisement. So, no ruling from the bench today, and no hint as to when a ruling might be expected.....
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Hearing on summary judgment motions in claim and continuation rules case this morning
February 08, 2008
Post by Blog Staff
This morning at 10:00 EST, Judge James C. Cacheris in the Eastern District of Virginia will hold a hearing on the parties' motions for summary judgment in the consolidated cases challenging the USPTO's claim and continuation rules. When ruling on the preliminary injunction, Judge Cacheris granted the injunction in a ruling from the bench at the conclusion of the hearing, so it's possible that he may .......
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Reply briefs filed in claim and continuation rules case; administration opposes patent reform
February 04, 2008
Post by Blog Staff
Late Friday, the parties filed their reply briefs in the cases challenging the USPTO's claim and continuation rules. As with the parties' opposition filings, these briefs largely represent another repetition of the arguments raised in the parties motions for summary judgment. The motions have now been fully briefed, and the hearing on the parties' motions is scheduled for Friday, February 8 at 10:00.......
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Patent Reform Act of 2007 scheduled for consideration this month
February 01, 2008
Post by Blog Staff
The Patent Reform Act of 2007 (S. 1145) is now officially back on the radar. It was recently placed on the Senate's calendar, and is likely to be considered by the full Senate sometime this month. This has resulted in a corresponding increase in the lobbying efforts by those on both sides of the debate. Click below for more detail regarding the various lobbying efforts, as well as additional commentary on .......
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Oppositions to motions for summary judgment filed in cases challenging claim and continuation rules
January 23, 2008
Post by Blog Staff
Yesterday, the USPTO, Glaxo, and Dr. Tafas filed their oppositions to the motions for summary judgment in the consolidated cases challenging the USPTO's claim and continuation rules. At first glance, they make many of the same arguments raised in the parties' motions for summary judgment. Interestingly, however, the USPTO has also moved to strike portions of Tafas' summary judgment filings, as we.......
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Patent Reform Act of 2007 to be passed in 2008?
January 16, 2008
Post by Blog Staff
The internet is abuzz with talk that the much-maligned Patent Reform Act of 2007 (H.R. 1908 & S. 1145) may be passed in some form this month. A draft version of the Senate Judiciary Committee's report on the bill was released earlier this week, and while it does not contain any revised provisions, it does offer a fairly detailed description of the Senate version of the bill as it currently stands. .......
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Amici piling up in lawsuit challenging new claim and continuation rules
December 31, 2007
Post by Blog Staff
Although the parties' motions for summary judgment have been filed, the amici keep coming forward in the consolidated lawsuits challenging the new claim and continuation rules. This brings the total number of amici in this case over 30, filing 19 20 (as of 1/4) total briefs. While the vast majority of amici filings support the plaintiffs, there have been three briefs filed in support of the USPTO. Below is.......
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Motions for summary judgment filed in lawsuit challenging claim and continuation rules
December 21, 2007
Post by Blog Staff
Yesterday the parties filed their motions for summary judgment in the cases brought by GlaxoSmithKline (GSK) and Dr. Tafas challenging the USPTO's new claim and continuation limit rules. Apparently the earlier order setting the deadline for amicus briefs did not apply to the parties' motions, as earlier speculated. The deadline for briefs in opposition is January 22. More amici have also joined in, in.......
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Summary judgment deadline now December 27 in lawsuit challenging new rules; one more amicus joins in
December 19, 2007
Post by Blog Staff
The deadline for summary judgment motions in the lawsuit challenging the new claim and continutation rules has apparenlty been extended from December 20 to December 27. While no modified scheduling order has yet appeared on PACER, in the court's order yesterday granting leave for the various amici who sought to file briefs at the summary judgment stage, the court indicated that the deadline for such briefs.......
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Summary judgment motions due December 20 in lawsuit challenging new claim and continuation rules
December 15, 2007
Post by Blog Staff
It's been awhile since our last update on the lawsuit challenging the USPTO's new claim and continuation limit rules. Here's a brief rundown of what's happened since the court granted Glaxo's motion for preliminary injunction, temporarily preventing implementation of the rules:Tafas noticed the depositions of Jon Dudas (USPTO director), John Doll (commissioner for patents), John Love (depu.......
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New IDS rules approved by Office of Management and Budget
December 11, 2007
Post by Blog Staff
Yesterday the Office of Management and Budget (OMB) approved without change the USPTO's new rules regarding information disclosure statements. The rules had been challenged at the OMB in an effort to prevent their implementation, but that challenge was apparently unsuccessful.The text of the final rules is not yet available, but the abstract and previous reports indicate that it will increase disclosure r.......
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USPTO releases 2007 annual report, Patent Reform Act to be considered in January?
November 15, 2007
Post by Blog Staff
The USPTO has released its 2007 Performance and Accountability Report. Here are a few highlights:Average time for first office action (patent): 25.3 monthsAverage total application pendency (patent): 31.9 monthsPercent of patent applications filed electronically: 49.3%Average time for first office action (trademark): 2.9 monthsAverage total application pendency (trademark): 15.1 monthsPercent of trademark a.......
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USPTO posts comments to proposed rule changes regarding BPAI appeals and Markush claims
November 08, 2007
Post by Blog Staff
The USPTO has posted the comments received regarding the proposed rule changes regarding appeals at the BPAI, as well as those received regarding the proposed rules regarding claims with "alternative claim language," namely Markush groups. At first glance, the comments appear to be overwhelmingly negative. Of course, that likely won't stop them from being implemented, if the claim and continuat.......
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Analysis of order enjoining claim and continuation limit rules: almost 100% in Glaxo's favor
November 01, 2007
Post by Blog Staff
All in all, the order granting Glaxo's motion for a preliminary injunction barring enforcement of the USPTO's new claim and continuation limit rules is about everything Glaxo (and patent prosecutors) could have hoped for. The court found that each of the four factors considered when deciding whether to grant an injunction favored Glaxo, although the legal analysis for the contentions underlying the fa.......
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Opinion enjoining continuation and claim limit rules released
October 31, 2007
Post by Blog Staff
The court's opinion enjoining the USPTO's new continuation and claim limit rules has been released. We'll have more once we've had a chance to analyze the court's reasoning. Update: click here for our post with more detailed analysis. Opinion granting preliminary injunctionThe AIPLA, who joined the case as an amicus supporting Glaxo, provides this report regarding the oral argument.The me.......
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Claim and continuation limit rules preliminarily enjoined
October 31, 2007
Post by Blog Staff
According to reports, enforcement of the USPTO's new claim and continuation limit rules has been enjoined. Judge James C. Cacheris issued the ruling from the bench after the hearing today on GlaxoSmithKline's motion for preliminary injunction.We'll have more as it develops, including any orders or decisions issued by the court.Update: More detail regarding the hearing and arguments from John White ov.......
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The Witching Hour approaches: hearing on Glaxo's preliminary injunction motion today at 10 Eastern
October 31, 2007
Post by Blog Staff
Today at 10:00 AM Eastern time, Judge James C. Cacheris in the Eastern District of Virginia will hear GlaxoSmithKline's motion for preliminary injunction to prevent enforcement of the USPTO's new claim and continuation limit rules. No word on how long the hearing will last, but we'll post as soon as we hear of a ruling. Given that the rules are scheduled to go into effect tomorrow, a ruling from the .......
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Glaxo files reply brief in support of preliminary injunction, more amici join the fray
October 30, 2007
Post by Blog Staff
Today Glaxo filed its reply brief in support of its motion for preliminary injunction to stop implementation of the new continuation and claim limit rules. The brief pays particular attention to the public interest and balance of harms factors in the preliminary injunction analysis, and then responds to the USPTO's arguments regarding likelihood of success on the merits. Interestingly, Exhibit A to the r.......
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USPTO files opposition to Glaxo's motion for preliminary injunction against new rules
October 29, 2007
Post by Blog Staff
Apparently the government's lawyers had a long weekend, because on Sunday, the USPTO filed its opposition to Glaxo's motion for preliminary injunction against the new claim and continuation limit rules. Included with the opposition were a whopping 34 attachments making up 7 exhibits.The USPTO makes the expected arguments. First, it argues that it is entitled to Chevron deference in its interpretation .......
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AIPLA seeks leave to file amicus brief supporting Glaxo in its challenge to the new USPTO rules
October 25, 2007
Post by Blog Staff
Today the American Intellectual Property Law Association filed a motion for leave to file an brief as amicus curiae in support of Glaxo's motion for preliminary injunction to enjoin implementation of the USPTO's new claim and continuation limit rules. The proposed brief is specifically directed toward the irreparable harm that would result if the rules are applied to already-filed applications. For exa.......
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Coalition against the Patent Reform Act of 2007 gets bigger: 430 join in Senate opposition letter
October 24, 2007
Post by Blog Staff
In May, it was a coalition of over 100 companies and organizations sending a letter to House and Senate leadership of both parties expressing opposition to the Patent Reform Act of 2007 (H.R. 1908 & S. 1145). By June, the group grew to over 200 companies and organizations, and they wrote another letter to the members of the House and Senate Judiciary committees when those committees were considering th.......
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Senate Judiciary committee to hold hearings about federally-funded university research and patents
October 22, 2007
Post by Blog Staff
On Wednesday at 1:30 eastern time, the Senate Judiciary Committee will hold hearings entitled "The Role of Federally-Funded University Research in the Patent System." Those testifying will be:Arti K. Rai, professor, Duke University School of Law (testimony) Elizabeth Hoffman, Executive Vice President and Provost, Iowa State University (testimony) Robert Weissman, Director, Essential Action (testimony) .......
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USPTO moves to strike former USPTO director's declaration supporting Glaxo's PI motion
October 22, 2007
Post by Blog Staff
On Friday, the USPTO filed a motion to strike the declaration of Harry F. Manbeck, Jr. in support of Glaxo's motion for a preliminary injunction barring implementation of the USPTO's new claim and continuation limit rules, claiming it constitutes improper expert testimony and impermissibly augments the administrative record in the case. Why is this interesting? Mr. Manbeck was the director of the USPT.......
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Proposed IDS rules challenged before Office of Management and Budget
October 18, 2007
Post by Blog Staff
Apparently the USPTO's recent forays into rulemaking are not winning friends and influencing people. The rules limiting claims and continuation applications are currently being challenged in court, and now a group of companies is challenging the proposed IDS rules before the Office of Management and Budget (OMB). The rules were submitted to the OMB back on July 27; you can read the submission challenging.......
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Glaxo's preliminary injunction motion to be heard October 31, consolidated with earlier challenge
October 18, 2007
Post by Blog Staff
In orders yesterday in GlaxoSmithKline's effort to stop implementation of the new continuation and claim limit rules, the USPTO's request to continue the preliminary injunction hearing until October 31 was granted in order to give the Office more time to respond to the motion. Also, Glaxo's case was consolidated with an earlier case filed challenging the validity of the rules, and reassigned to the j.......
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Glaxo files motion for preliminary injunction and TRO to stop new rules, hearing on October 26?
October 17, 2007
Post by Blog Staff
On Monday, Glaxo filed a motion for preliminary injunction and temporary restraining order in its lawsuit seeking to prevent implementation of the new USPTO rules regarding claim and continuation limits. The court has set a hearing for October 26, which the USPTO has requested by extended to October 31 in order to give it the full 11 days it would otherwise get to file a brief in response. The case is number .......
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Another lawsuit filed to stop implementation of new USPTO rules, this time by a heavy hitter
October 11, 2007
Post by Blog Staff
Pharmaceutical giant GlaxoSmithKline filed a lawsuit in the Eastern District of Virginia seeking to stop implementation of the new continuation and claim limit rules. The lawsuit, filed Tuesday, seeks a preliminary and permanent injunction against the rules' implementation. The complaint has eight counts:The Rules are ultra vires because the USPTO does not have the statutory authority to issues substantive.......
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USPTO gives applicants a bit of a break during transition to new continuation and claim limit rules
October 11, 2007
Post by Blog Staff
In an announcement yesterday, the USPTO clarified some aspects of the new continuation and claim limit rules. Of particular note are the following:For applications filed before November 1, 2007, applicants need not identify all applications and patents having a common inventor, common assignee, and a priority date within two months. Applicants will still have to identify applications and patents having the sam.......
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USPTO posts Examination Support Document Guidelines
September 13, 2007
Post by Blog Staff
The USPTO has posted guidelines for Examination Support Documents on its website devoted to the new claim and continuation limit rules. Examination Support Documents (ESDs) will be required for all patent applications exceeding the 5/25 claim limit that have not yet received a first office action on the merits as of November 1.The guidelines are 16 pages long, and confirm the onerous nature of ESDs. Perhaps th.......
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The Patent Reform Act of 2007: What's changed in the final House version?
September 11, 2007
Post by Blog Staff
With the Patent Reform Act of 2007 (H.R. 1908) passing the House on Friday, it's about time to take another look at the Act and see what's different between the current version and the version as introduced back in April.Click below for the analysis.First to file (Section 3)This section is essentially unchanged, apart from a definition of "joint invention" and an addition that previously-filed.......
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Sponsors of the Patent Reform Act of 2007 playing hardball?
September 11, 2007
Post by Blog Staff
According to reports, several of the key opponents of the Patent Reform Act of 2007 (H.R. 1908) withdrew their opposition to the bill before the House vote last Friday. Among those reportedly withdrawing their opposition include the AFL-CIO, Motorola, and the Association of American Universities, among others.Why did they withdraw their opposition? It sounds like House chief sponsor Representative Howard Berman.......
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House Passes Patent Reform Act of 2007
September 07, 2007
Post by Blog Staff
As expected, the House this afternoon passed its version of the Patent Reform Act of 2007 (H.R. 1908). The vote was 220-175, with 37 not voting.Now the lobbying action will move to the Senate. ....
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House expected to pass Patent Reform Act of 2007 today
September 07, 2007
Post by Blog Staff
That House version of the Patent Reform Act of 2007 (H.R. 1908) is expected to be considered and passed today. There have been several modifications to the bill since it was first introduced, so even if the Senate also passes it, there likely will be many differences between the House and Senate versions that will have to be worked out before it could be sent to the President for signature. The Senate is not ex.......
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Patent Office Professional Association comes out against Patent Reform Act of 2007
September 02, 2007
Post by Blog Staff
Support for the Patent Reform Act of 2007 (S. 1145, H.R. 1908) continues to erode. Now, as reported on the Patent Prospector, POPA, the Patent Office Professional Association, has penned an open letter against the Act. The letter, entitled "The Patent Reform Act Will Hurt, Not Help, the U.S. Patent System," is interesting for several reasons.First, POPA comes out against so-called "Applicant Quali.......
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House Republican leadership expresses concerns about Patent Reform Act of 2007
August 31, 2007
Post by Blog Staff
In further evidence that the Patent Reform Act of 2007 (S. 1145, H.R. 1908) may be in for a tough road, the House Republican leadership (Republican Leader Boehner and Republican Whip Blunt) has sent a letter to Speaker Pelosi expressing concerns about the Act. Among the provisions that cause the concern are enhanced rulemaking authority for the USPTO , damages apportionment, and inequitable conduct. The lette.......
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IEEE voices opposition to the Patent Reform Act of 2007
August 28, 2007
Post by Blog Staff
As reported at the Patent Prospector, the U.S. organizational unit of the Institute of Electrical and Electronics Engineers (IEEE-USA) has sent a letter to Senate Majority Leader Harry Reid and Speaker Nancy Pelosi opposing the Patent Reform Act of 2007.In a nutshell, the IEEE-USA's view is:We believe that much of the legislation is a disincentive to inventiveness, and stifles new businesses and job growt.......
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Patent Reform Act of 2007 hitting a snag?
August 27, 2007
Post by Blog Staff
In today's Wall Street Journal, there is an article noting that the Patent Reform Act of 2007 (S. 1145, H.R. 1908) may be coming up against some resistance when Congress returns from its August recess. The article notes that the AFL-CIO has warned that if the Act is passed in its current form, "innovation—and union-backed manufacturing jobs—might be at risk."This warning from the manuf.......
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New continuation and claim limit rules: the good, the bad, and the ugly
August 23, 2007
Post by Blog Staff
After having some time to parse out the details of the new rules promulgated by the USPTO on Tuesday, a few things jump out. For the most part, they could have been worse, but from the perspective of patent applicants, the new rules will likely result in more expensive applications, narrower coverage, and potentially the inability to obtain patent protection to which an inventor might otherwise be entitled. Fo.......
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First lawsuit to stop implementation of continuation and claim limit rules filed
August 23, 2007
Post by Blog Staff
As reported on Patently-O (and predicted here), yesterday a lawsuit was filed against the USPTO and its director, Jon Dudas, to prevent implementation of the new rules limiting continuations and the number of claims in patent applications (expect a more detailed post about the new rules later today).The lawsuit alleges that the regulations are invalid for many reasons, including:Exceeding the USPTO's Congre.......
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New continuation rules published
August 21, 2007
Post by Blog Staff
As noted yesterday, the new continuation rules have been published in today's issue of the Federal Register. The bulk of the publication is responses to the numerous comments sent to the USPTO after the rules were initially published in January 2006. The introductory material explains the gist of the new rules, and runs from page 46716-44, with the text of the new rules begins on page 46835.Click here for .......
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Continuation and claims rules to publish tomorrow, August 21st, will take effect November 1st
August 20, 2007
Post by Blog Staff
Tthe USPTO announced in a press release today that it will publish in tomorrow's Federal Register the final rules on continuation applications and the number of claims. The rules will take effect November 1, 2007. The USPTO describes the rules in its press release:The new rules have been modified, relative to the rules that were originally proposed early last year, in response to the extensive comments the U.......
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More new USPTO rules on the way, this time for information disclosure statements and Markush claims
August 10, 2007
Post by Blog Staff
The USPTO rulemaking machine just keeps chugging along. In today's Federal Register, there are new USPTO proposed rules regarding claims using "alternative language," such as Markush claims. Also, on July 27, the USPTO submitted new rules regarding information disclosure statements (IDSs) to the OMB for review. These rules look as though they adhere to the current USPTO theme: make applicant.......
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Revised TTAB rules published, some take effect August 31, others November 1
August 01, 2007
Post by Blog Staff
As noted last week, the revised TTAB rules were published in today's Federal Register. The final rules are somewhat different than those proposed last January. Some of the new rules include:Opposers/Petitioners will serve copies of the notice of opposition or cancellation petition on the opposing party directly, rather than having the TTAB send out the papers [Revised 37 C.F.R. § 2.105]Adoption of mand.......
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USPTO proposes new BPAI rules to cope with upcoming increase in appeals
July 31, 2007
Post by Blog Staff
In a Federal Register notice yesterday, the USPTO promulgated revised rules for practice before the Board of Patent Appeals and Interferences. The USPTO will accept comments on the proposed rules until September 28, 2007 via email, fax, or postal mail. Many of the proposed rules appear designed to advance the USPTO's current trend toward finding waiver of arguments or evidence not presented at the first o.......
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Continuation and claims rules to publish "later this summer," will take effect 60 days later
July 25, 2007
Post by Blog Staff
In a press release today, the USPTO announced that the much-rumored new rules regarding continuation applications and claim limits recently approved by the OMB will publish in the Federal Register "later this summer," and will take effect 60 days after publication. The USPTO notes that the abstracts published with the OMB reflect the abstracts from the rules as originally proposed in January 2006, t.......
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Senate Judiciary Committee passes Patent Reform Act of 2007 out of committee
July 23, 2007
Post by Blog Staff
On Thursday, the Senate Judiciary Committee passed its version of the Patent Reform Act of 2007 (S. 1145, House version H.R. 1908) out of committee by a vote of 13-5. The bill is cosponsored by the chairman of that committee, Senator Patrick Leahy, who issued a press release regarding the passage.As with the House version that also passed out of committee last week, the controversial damages apportionment pro.......
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Patent Reform Act of 2007: moving forward?
July 18, 2007
Post by Blog Staff
Today the House Judiciary Committee sent the Patent Reform Act of 2007 (H.R. 1908 and S. 1145) out of committee to the full House of Representatives for consideration. The amended version (found here, as it has not been updated on the Library of Congress site yet). The controversial damages apportionment provisions are still present in the bill (although they are modified in the Senate version), but the &quo.......
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Office of Management and Budget approves USPTO's new continuation rules
July 10, 2007
Post by Blog Staff
The Office of Management and Budget has approved the two new rules promulgated by the USPTO relating to continuation applications and examination of claims. Apparently the meetings with various groups did not convince the OMB that the rules were inconsistent with the USPTO's regulatory authority. The rules are rumored to be different than those originally proposed in January 2006. Many in the paten.......
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Three groups meet with OMB to stop continuation rules from being implemented
June 20, 2007
Post by Blog Staff
In an effort to prevent the much-discussed impending rules changing continuation practice and the number of claims from being finalized, there were three meetings held regarding the proposed rules during May and June at the Office of Management and Budget (OMB), the office that must review and approve all regulations promulgated by federal agencies. It has been speculated that, if approved, the new rules will.......
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200 companies express further concerns over Patent Reform Act of 2007
June 20, 2007
Post by Blog Staff
The hits just keep on coming for the Patent Reform Act of 2007 (H.R. 1908 and S. 1145). Over the past two weeks, Chief Judge Paul Michel of the Federal Circuit sent two letters criticizing portions of the Act. Before that, a group of Senators noted their concerns with the Act. Just after the Act was introduced, a coalition of over 100 companies expressed their concerns about the act. Now, many of those sa.......
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Chief Judge Michel offers additional thoughts on the Patent Reform Act of 2007
June 18, 2007
Post by Blog Staff
Back when the Patent Reform Act of 2007 (H.R. 1908 and S. 1145) was first introduced, Chief Judge Paul Michel of the Federal Circuit wrote a letter to Senators Patrick Leahy and Orrin Hatch (the Senate sponsors of the Patent Reform Act of 2007) discussing the practical implications of certain provisions of the bill on the courts.As it turns out, this wasn't the Chief Judge's last word on the subjec.......
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Senators express concern over Patent Reform Act of 2007
June 12, 2007
Post by Blog Staff
In a letter to the Chairman and Ranking Member of the Senate Judiciary Committee (which held hearings on the Patent Reform Act of 2007 last week), several Republican members of the committee expressed reservations about the current version of the bill. The contingent, made up of Senators Sam Brownback (R-KS), Tom Coburn (R-OK), Chuck Grassley (R-IA), Jon Kyl (R-AZ), and Jeff Sessions (R-AL), noted the .......
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Senate hearings on the Patent Reform Act of 2007
June 07, 2007
Post by Blog Staff
As noted previously, the Senate yesterday held hearings on the Patent Reform Act of 2007 (S. 1145). The witnesses were:Jon W. Dudas, Undersecretary of Commerce for Intellectual Property and Director of the USPTOBruce G. Bernstein, chief intellectual property and licensing officer, InterDigital Communications Corp. Mary Doyle, Senior Vice President, General Counsel, and Secretary, Palm, Inc. John A. Squires, Chief.......
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Senate to hold its first hearings on Patent Reform Act of 2007
June 01, 2007
Post by Blog Staff
While the House subcommittee on Courts, the Internet, and Intellectual Property (a subcommittee of the House Judiciary Committee) held hearings on the Patent Reform Act of 2007 (H.R. 1908, S. 1145) at the end of April, the Senate is just now getting into the act. On Wednesday, June 6 at 10:00 Eastern time, the full Senate Judiciary Committee will hold hearings entitled "Patent Reform: The Future of Am.......
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Chief Judge Michel weighs in on two aspects of the Patent Reform Act of 2007
May 23, 2007
Post by Blog Staff
In a letter to Senators Patrick Leahy and Orrin Hatch, Chief Judge Paul Michel of the Federal Circuit expresses concern with two provisions of the Patent Reform Act of 2007 (H.R. 1908 and S. 1145). The letter, dated May 3 (two weeks after the bills were introduced), addresses what Chief Judge Michel perceives to be the practical concerns raised by two provisions in the proposed legislation: interlocutory ap.......
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House subcommittee sends Patent Reform Act of 2007 to full Judiciary Committee
May 18, 2007
Post by Blog Staff
The House subcommittee on Courts, the Internet, and Intellectual Property this week has approved the House version of the Patent Reform Act of 2007 (H.R. 1908). The bill now goes to the full House Judiciary Committee for further review before going to the House for a full vote.Although this is a key first hurdle for patent reform legislation this legislative session, many of the subcommittee members expressed .......
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Coalition of over 100 companies expresses concerns over the Patent Reform Act of 2007
May 16, 2007
Post by Blog Staff
In a letter to democratic and republican leadership as well as the members of the House and Senate judiciary committees, the Innovation Alliance, along with over 100 other companies, expressed concern over many of the proposed reforms in the Patent Reform Act of 2007 (H.R. 1908 and S. 1145). The group states that many of the reforms in the Act are contrary to Speaker Pelosi's Innovation Agenda. The gro.......
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New rules on continuations: coming to a CFR near you this July?
April 30, 2007
Post by Blog Staff
If the latest rumors are true, the USPTO may be giving inventors and patent prosecutors the newest summer blockbuster. According to Hal Wegner, on April 10, 2007, the USPTO submitted two rules to the Office of Management and Budget (OMB) for review, one related to continuation practice and "patentably indistinct claims," and another related to examination.As reported by Dennis Crouch at Patently-O, th.......
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House subcommittee holds first hearings on Patent Reform Act of 2007
April 27, 2007
Post by Blog Staff
Yesterday a subcommittee of the House Judiciary Committee, the Subcommittee on Courts, the Internet and Intellectual Property, held the first hearings on the House version of the Patent Reform Act of 2007 (HR 1908). The witnesses were:Gary L. Griswold, President and Chief Counsel of Intellectual Property 3M Innovative Properties, St. Paul Minnesota (testimony on behalf of the Coalition for 21st Century Patent .......
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Patent Reform Act of 2007
April 19, 2007
Post by Blog Staff
As noted yesterday, four members of Congress (Leahy and Hatch in the Senate, Berman and Smith in the House) announced introduction of new patent reform legislation yesterday. Also as predicted yesterday, it is similar in many respects to patent reform legislation introduced in 2005 and 2006, but with a few new twists.More details of the proposed changes after the jump. The changes proposed by the bill can.......
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Congress to introduce patent reform bills today
April 18, 2007
Post by Blog Staff
In a press conference scheduled for 2:30 2:15 pm EDT this afternoon, Senators Patrick Leahy (D-VT) and Orrin Hatch (R-UT), with Representatives Howard Berman (D-CA) and Lamar Smith (R-TX), are expected to announce introduction of identical bills in both the House and Senate in an effort to reform the patent system. [Update (4/19): see this post for more detail on the proposed legislation.] Senator Leahy.......
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New rules limiting continuation applications coming soon?
March 02, 2007
Post by Blog Staff
According to multiple rumors, the USPTO may be nearing publishing its final rules regarding limits on continuation applications. When initially announced in January 2006, many patent practitioners and law professors, including now-Federal Circuit Judge Kimberly Moore, believed the limits to be beyond the scope of the USPTO's authority to enact, instead requiring a statutory change by Congress. The .......
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USPTO Director Jon Dudas talks patent reform
February 28, 2007
Post by Blog Staff
Over at ZDnet there is very good coverage of a recent speech about patent reform by USPTO director Jon Dudas. Mr. Dudas spoke at the Tech Policy Summit on the issue of whether the patent system was hurting innovation. Mr. Dudas stated that the biggest problem leading to bad quality patents is the obviousness requirement, which the Supreme Court is addressing in the KSR v. Teleflex case argued last .......
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Patent reform legislation: is this year the year?
February 16, 2007
Post by Blog Staff
Yesterday, the House Judiciary Committee held a hearing on the possibility of reform of the U.S. Patent system. Given that the title of the hearing was "American Innovation at Risk: The Case for Patent Reform," it's easy to surmise that the general theme of the hearing was that reform is needed. Dennis Crouch at Patently-O provides brief summaries of the four panelists' testimony. Several diffe.......
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House passes pilot program for judges to volunteer for patent cases
February 13, 2007
Post by Blog Staff
Yesterday the U.S. House of Representatives passed H.R.34, a bill that would establish a pilot program that would enable district court judges who want to hear patent cases to volunteer for such cases as well as receive additional training on patent law. The bill now moves to the Senate, where some expect it will also pass and eventually be signed into law by President Bush this year. Under the bil.......
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New GAO report suggests that some patents may hamper development of new "innovative" drugs
December 21, 2006
Post by Blog Staff
A report released by the Government Accountability Office indicates that while expenditures on research and development by drug companies have increased, this has not resulted in a commensurate increase in new drug applications (NDAs) with the FDA. In fact, NDAs have decreased by 21% from 1999 to 2004. The larger concern raised by the report is the decrease in the number of NDAs for "new molecular .......
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The attorneys of McKee, Voorhees & Sease, P.L.C. designed this blog as an informational and educational resource about intellectual property law for our clients, other attorneys, and the public as a whole. Our goal is to provide cutting-edge information about recent developments in intellectual property law, including relevant case law updates, proposed legislation, and intellectual property law in the news.

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