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Drafting the Fine Print: Every Word is Significant in a License Agreement
June 28, 2019
Post by Tina G. Yin Sowatzke, Pharm.D.
Tina G Yin-Sowatzke Licensing agreements can be both complex and extensive, however, diligence must be exercised in ensuring that the scope of rights to be transferred are clearly defined. The failure to do so may result in disputes over the interpretation of licensing agreements, where each word and phrase may be painstakingly scrutinized in court. Such disputes arose in the case of Sköld v. Galderma Lab.......
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First Cannabis-Related Patent Makes its Way through the Federal Courts: What it Teaches, and What it Does Not
May 02, 2019
Post by Tina G. Yin Sowatzke, Pharm.D.
Tina G Yin-Sowatzke In the past 25 years, there has been substantial growth surrounding the developments within the cannabis industry, particularly involving intellectual property protections. With legalization of cannabis gaining traction across the United States, any court guidance can provide a foundation for those seeking patent protection. Opportunely, on April 17, 2019, The District Court for the Di.......
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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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Resolving Circuit Splits: Supreme Court Addresses Issues Regarding Legal Fees
March 07, 2019
Post by Tina G. Yin Sowatzke, Pharm.D.
Tina G Yin-Sowatzke On March 4, 2019, the United States Supreme Court granted certiorari in Iancu v. NantKwest, Inc. to settle the debate over what “all the expenses” means under the U.S. Patent and Trademark Office’s (USPTO) win-or-lose attorney fee policy. This controversial policy involves seeking attorneys’ fees from applicants, regardless of the outcome of a case. During patent prosecution, if met wi.......
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Protecting Your Nanotechnology Inventions - Part 4: Don’t Forget About Trade Secret Protection
December 31, 2018
Post by Jonathan L. Kennedy
When you have a new invention, the right question to ask at the outset is whether you want to consider patenting it. This is important because many common activities in research and commercialization can create a bar to patent protection or at least start a one-year clock by which a patent must be filed. Some of these common activities include presenting or publishing on the technology, testing the techn.......
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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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CRISPR: Broad Institute Holds onto its Piece of Pie, and it’s Delicious!
September 13, 2018
Post by Oliver P. Couture, Ph.D.
On Monday, September 10th, the Court of Appeals for the Federal Circuit (CAFC) upheld the decision from the Patent Trial and Appeal Board (PTAB) on the interference between the Broad Institute and the University of California. The PTAB held, and the CAFC upheld, that given the difference between prokaryotic and eukaryotic cells, one skilled in the art would not have had a reasonable expectation of succes.......
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Protecting Your Nanotechnology Inventions - Part 2: Defining Your Invention
August 19, 2018
Post by Jonathan L. Kennedy
Have you invented materials with improved properties, such that you can seek to protect materials having those properties? Have you invented materials with a new structure such that you can seek protection of that structure beyond your specific species of materials? Have you invented a method that can be applied to items broader than your specific application? The answers to these questions can inform yo.......
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An IPR Appellant Must Establish an Injury to Have Standing
August 10, 2018
Post by Blog Staff
In JTEKT Corp. v. GKN Auto. Ltd., Appeal No. 2017-1828 (Fed. Cir. Aug. 3, 2018), the United States Court of Appeals for the Federal Circuit (CAFC) dismissed an inter partes review (IPR) appeal due to lack of standing. The requirement for an appellant to establish an injury in fact remains firm. JTEKT petitioned for an IPR on a patent owned by GKN. The Patent Trial and Appeal Board (PTAB) instituted the revie.......
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Patent Rights are NOT Monopoly Rights
June 25, 2018
Post by Luke T. Mohrhauser
Luke T. Mohrhauser There has been a long believed and conveyed statement that patent rights provide a "legal monopoly". While this may be a simple way to explain the rights held by one issued patent, this is simply not true. Monopolies, at their core, attempt to control a market or an aspect of a market. Patents provide protection and can offer incentives for inventors to disclose their inventions publicl.......
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Protecting Your Nanotechnology Inventions - Part 1: Defining Your Space
June 21, 2018
Post by Jonathan L. Kennedy
In a recent post, I discussed the increasing focus on nanotechnology research including the growing number of patents issued and government funding in nanotechnology research. Obtaining the strongest and broadest protection for your nanotechnology should be a focus of any research and intellectual property (IP) strategy. There are things that can be done during research to support stronger and broade.......
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PTAB to Consider When Conference Materials are Prior Art
June 11, 2018
Post by Blog Staff
In a consolidated appeal from two related Patent Trial and Appeals Board (“PTAB”) decisions, the Court of Appeals for the Federal Circuit (“CAFC”) affirmed-in-part and vacated-in-part the PTAB’s findings. The CAFC affirmed the PTAB’s conclusion that challenged claims would not have been obvious over two specific references. However, the CAFC vacated the PTAB’s determination that certain other references .......
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In Re: Durance
June 04, 2018
Post by Blog Staff
In In Re: Durance, the United States Court of Appeals for the Federal Circuit (“CAFC”) vacated the Patent Trial and Appeal Board’s (“PTAB”) ruling affirming an examiner’s obviousness rejection of a patent application related to a microwave vacuum-drying apparatus and method. The CAFC remanded for consideration of the applicants’ reply-brief arguments because they were properly made in response to the exa.......
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USPTO Director Andrei Lancu Takes a Look at Early Prosecution
May 24, 2018
Post by Oliver P. Couture, Ph.D.
This week, the USPTO Director, Andrei Iancu, testified before the House Judiciary Committee. In his written statement Director Iancu wrote on topics related to early prosecution that would result in lower costs to clients and would speed up the process of obtaining a patent. A new pilot program that will allow for a pre-search Examiner interview is being planned. The goal of the interview is to allow claim i.......
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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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Amazon Develops Drones that React to Human Gestures
March 28, 2018
Post by Gregory "Lars" Gunnerson
The technology of U.S. Patent No. 9,921,579, which issued on March 20, 2018, may help Amazon grapple with how flying robots might interact with human bystanders and customers waiting on their doorsteps. Apple engineer Frederik Schaffalitzky (formerly an engineer for Amazon) is the sole inventor responsible for these recent technological innovations. While, the parent patent application to the above-i.......
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Patentability and Patent Protection: Is the Pendulum Starting to Swing Back?
March 23, 2018
Post by Oliver P. Couture, Ph.D.
The latest US Chamber of Commerce Global Innovation Policy Center’s International IP Index still places the US on top overall for intellectual property. However, this is due to strength in enforcement of copyrights and trademarks, and improvements in identifying counterfeit goods before they enter the country. According the to Index, the US has dropped to 12th place out of 50 economies in recent years. T.......
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Just Because It’s Nanoscale, Doesn’t Mean It’s Not a Big Deal
March 09, 2018
Post by Jonathan L. Kennedy
Nanotechnology has been taking innovation by storm for decades now and its only increasing its footprint. This is reflected in the growing number of granted patents and published applications directed to nanotechnology inventions. For example, according to StatNano (an organization that monitors and publishing information regarding nanotechnology global developments), more than 20,000 granted patents and patent .......
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The Plant Naming Conundrum … Protecting Your Plant Varieties in the Short and Long Term
February 15, 2018
Post by Christine Lebron-Dykeman
Development of a new plant cultivar or varietal often requires substantial research and development. These costs can be recovered, however, if a breeder is able to successfully market, sell and/or license the resulting product, while maintaining exclusive ownership rights therein.  There are, of course, a variety of intellectual property protection schemes available to maintain those exclusive right.......
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Time to Consider Patent Protection in China
February 13, 2018
Post by Kirk M. Hartung
In the past decade, the Chinese government has made substantial policy changes regarding protection for intellectual property, both for obtaining rights and enforcing rights. These policies are generally favorable to patent owners and are intended to incentivize innovation. In December, the World Intellectual Property Organization (WIPO) published statistics for worldwide patent application filings for 2016, the.......
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PTAB Opinion Provides Reminder that Indefiniteness Rejections Must Establish a Prima Facie Case
January 26, 2018
Post by Jonathan L. Kennedy
In a recent USPTO Patent Trial and Appeal Board (PTAB) opinion, the PTAB reversed an Examiner's indefiniteness rejection as the it failed to establish a prima facie case of indefiniteness. InEx Parte Kimura, Appeal No. 17-1293 (PTAB Jan. 25, 2018), the claims were rejected for reciting, "normal pumping operation." The rejection stated the term was indefinite because "[t]he claims fail to define what a no.......
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Constitutionality of Inter Partes Reviews: A Look at Supreme Court Oral Arguments in Oil States
December 06, 2017
Post by Blog Staff
The enactment of the AIA in 2011, inter partes review (IPR), has been available as a method to challenge the validity of a patent in the US Patent and Trademark Office. A total of 6139 IPR petitions (92% of all petitions) have been filed with the Patent Trial and Appeals Board (PTAB) since that time. One of those challenges occurred when Green’s Energy Group, in response to litigation, went to the PTAB t.......
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USPTO Releases Patent Fee Schedule for 2018
November 20, 2017
Post by Jonathan L. Kennedy
This past week, the USPTO released its final patent fee schedule for 2018. The USPTO has been actively seeking to reduce the overall patent pendency, number of unexamined applications, and reduce its appeal backlog. Part of these efforts have been the continual recruiting and training of new examiners and new Administrative Law Judges at the Patent and Trial Appeal Board. The USPTO is also working on upd.......
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Federal Circuit Emphasizes “Why” is Important Part of Obviousness Rationales in Chemical Patent Cases
September 21, 2017
Post by Jonathan L. Kennedy
In a recent decision by the Federal Circuit Court of Appeals, In re Stepan Company, the Federal Circuit reversed the Patent Trial and Appeal Board decision to affirm an examiner’s rejection that claims were obvious.  The claims in the application were directed to ultra-high load, aqueous glyphosate salt-containing concentrates comprising water, a glyphosate salt in an aqueous solution, a surfact.......
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The Most Difficult Definition: Considerations for Defining “Genetically Modified Organism"
August 17, 2017
Post by Blog Staff
A patent applicant is free to act as their own lexicographer in drafting an application and may define terms as they see fit. Should a word not be defined explicitly in the application, the Patent Office will then give the term “the broadest reasonable interpretation according to a person having ordinary skill in the art” -- they will broadly define the word as someone of equal training in the field would........
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When Life Hands you Lemons, Make CoQ10
July 27, 2017
Post by Blog Staff
In the Federal Circuit Decision of Soft Gel Technologies, Inc. v. Jarrow Formulas, Inc., the Court found three related Soft-Gel patents invalid for obviousness. The three patents describe a way to dissolve CoQ10 in monoterpenes for enhanced delivery to the body. The patents disclosed two suitable examples, limonene and carvone and derivatives thereof. However, prior to suit, the Patent Trial and Appeal B.......
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Surge in Patent Applications Related to 3D Printing: Is Yours One of Them?
July 26, 2017
Post by Jonathan L. Kennedy
The USPTO recently released statistics that over 8,000 patent applications were filed in 2016 related to 3D printing (additive manufacturing). Some of the interesting 3D printing inventions that have been subject to publicity include,prosthetic hands and fingers for children without fingers, three-dimensional bioprinting of human-compatible vascularized tissue developed by graduate students at Harvar.......
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Court of Appeals Gets Specific with Enablement
July 11, 2017
Post by Blog Staff
In Storer v. Clark, the Court of Appeals explored whether a provisional application had sufficiently enabled interference subject matter.  In order to prove enablement it must be shown that “one skilled in the art, having read the specification, could practice the invention without ‘undue experimentation.’” ALZA Corp. v. Andrx Pharm., LLC, 603 F.3d 935, 940 (Fed. Cir. 2010). Undue experimentation is.......
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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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U.S. Supreme Court Limits Where Patent Infringement Defendants Can be Sued
May 22, 2017
Post by Jonathan L. Kennedy
In TC Heartland LLC v. Kraft Foods Group Brands LLC, the U.S. Supreme Court limited the locations that patent infringement suits can be brought against a defendant, i.e., venue for the lawsuit.  Proper venue is established by 28 U.S.C. § 1400(b) as the place where (1) the defendant resides or (2) where the defendant has committed the acts of infringement and has a regular and established place of.......
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Prepping for Protection: First Steps to Developing an IP Strategy
May 16, 2017
Post by Blog Staff
Whether you are an individual, a start-up company, or an existing business, two of the hardest (and most important) questions are: “Do I have intellectual property?” and “How do I protect it?” First, having a qualified attorney will help make answering these questions significantly easier and they can help guide you through the development of an IP strategy that not only protects your current IP, but allow.......
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The Supreme Court changes patent law again on how long can a plaintiff wait to file a patent infringement action
March 24, 2017
Post by Patricia A. Sweeney - Of Counsel
If a plaintiff files an infringement action against a defendant, federal law imposes a statute of limitations that there can be no recovery for infringement more than six years before filing of the complaint or counterclaim asserting infringement. 35 USC § 286. Separately, the concept of "laches"is a defense that can be used by a defendant to prevent enforcement of a patent where there was undue.......
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When the Unthinkable Happens: IP Considerations for Bankruptcy
February 01, 2017
In the event that the unthinkable happens and bankruptcy becomes the only course of action for businesses, having not only a good bankruptcy attorney, but also having an involved IP attorney is vital to ensure that rights in valuable intellectual property are appropriately addressed and maintained. A basic understanding of Chapter 7 and Chapter 11 commercial bankruptcy options can help I.......
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Post-Grant Reviews under the America Invents Act
January 05, 2017
Post by Blog Staff
The America Invents Act implemented the Post-grant Review (PGR) process as a new means of challenging existing patents. PGR differs from Inter Partes Review (IPR) in that PGR allows for a wider array of invalidity challenges. One example of a new challenge allowed under PGR is the ability to challenge the claims as being indefinite. However, Post-grant Review is only available for patents filed on or afte.......
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USPTO Data Visualization Center
November 10, 2016
Post by Jonathan L. Kennedy
Jonathon L. Kennedy Have you ever wondered how long the typical time before a first Office Action in a pending patent or trademark application is?  Or am I the only one waiting for some months after filing an RCE to have my patent application reexamined?  Or what is the average length of time a patent application or trademark application is examined before allowance?  The USPTO Data V.......
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Environmental Patent Litigation: A Filewrapper® Series on Environmental Technology and Patent Protection-Part V
October 31, 2016
Caitlin M. Andersen In this final week of the Filewrapper® series on considerations for environmental technology, we will be discussing environmental intellectual property litigation and wrap up with final conclusions and thoughts. The grant of a patent is the right to exclude others from the practicing the invention. On the other end of the spectrum is technology that is well within .......
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Patent and Trade Secret Protection Considerations: A Filewrapper® Series on Environmental Technology and Patent Protection-Part IV
October 19, 2016
Caitlin M. Andersen In this fourth week of the Filewrapper® series on considerations for environmental technology, we will be discussing the tensions that arise in protecting environmental technology through either patents or trade secrets. As with any invention, the selection of trade secret or patent protection comes down to value of the technology as either proprietary or a commercial product. Ho.......
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USPTO Programs and Options: A Filewrapper® Series on Environmental Technology and Patent Protection-Part III
October 14, 2016
Caitlin M. Andersen In this third week of the Filewrapper® series on considerations environmental technology, we will be discussing USPTO efforts and programs designed specifically for environmental technologies. The concept of prioritizing green technology patents is not new to the USTPO. On December 8, 2009, a USPTO pilot program was launched to accelerate review of green tec.......
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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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Technology Driven Environmental Standards: A Filewrapper® Series on Environmental Technology and Patent Protection--Part II
October 03, 2016
Caitlin M. Andersen Filewrapper® previously introduced a new series of blog postings on the considerations for patent protection of environmental technology. Before discussing patent protection for these emerging technologies, it is beneficial to understand the regulatory system in which environmental technology must live in order to be placed into a commercial setting. While concerns .......
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"Green" Patent Protection: A Filewrapper® Series on Environmental Technology and Patent Protection-Part I
September 27, 2016
Caitlin M. Andersen Mounting scientific evidence that the global climate is changing has sparked a new wave of innovation in the field of environmental technologies. Many of these improvements to existing technologies have been patented and licensed, enhancing the financially lucrative nature of research and development in this industry. However, in some instances, despite technologic.......
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USPTO Offers New Pilot Program for After Final Responses
August 26, 2016
Post by Jonathan L. Kennedy
The USPTO has implemented the "Post-Prosecution Pilot"referred to as the "P3 Program."The goal of the program is to reduce the need for appeals by providing a more robust after final, pre-appeal program. The P3 Program essentially blends two existing programs: the After Final Consideration Pilot and the Pre-Appeal Brief Conference Pilot. The After Final Consideration Pilot allows an .......
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Federal Circuit Upholds 180-Day Notice Period for Biosimilars
July 06, 2016
Post by Blog Staff
On Tuesday, the Federal Circuit sustained an injunction preventing generic drug maker Apotex, Inc. from selling a similar version of Amgen Inc's Neulasta drug without a 180 day notice period after being approved by the FDA. The drug is used to boost white blood cell counts in cancer patients and is made using living cells. Because of the nature of biologic drugs such as Neulasta, it .......
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Federal Circuit Finds Patent Eligibility for Application of Natural Law
July 05, 2016
Post by Blog Staff
. . -- Please select --  The Federal Circuit has handed down its decision in Rapid Litigation Management v. CellzDirect.  The technology at issue in the case is a method of freezing-and-thawing a group of hepatocytes and then selecting those that are still viable.  The patent-owner sued the defendant for infringement of the patent, and the defendant in turn filed a motion f.......
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Supreme Court Upholds Broadest Reasonable Interpretation and No Review for Institution in PTAB Proceedings
June 20, 2016
Post by Blog Staff
. The Supreme Court has issued its opinion in the case of In re Cuozzo Speed Technologies, LLC. In re Cuozzo initially began as an inter partes review (IPR) with the Patent Trial and Appeals Board (PTAB) where Garmin challenged the validity of Cuozzo's patent relating to an interface that uses GPS technology to display a vehicle's speed as well as the speed limit on the basis that Cuozzo's patent was.......
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Federal Circuit Recognizes Patent "Agent"Privilege
March 09, 2016
Post by Blog Staff
The attorney-client privilege has not previously been extended to cover communications between U.S. patent applicants and non-attorney patent agents. That is about to change. In a recent decision, In re: Queen's University at Kingston, the Federal Circuit recognized that communications between U.S. patent applicants and non-attorney patent agents should receive some degree of privilege. In recogniz.......
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Intellectual Property Protection Options for Software
February 15, 2016
Post by Blog Staff
In a previous blog post, I discussed some of the recent updates issued by the United States Patent and Trademark Office regarding patent eligible subject matter and software patents. As anyone who deals with software patents is aware, there is a lot of uncertainty as to whether software is patent eligible subject matter. While the Supreme Court has not unequivocally pronounced software to be ine.......
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Apple and Fitbit Sued Over Wearable Physiological Monitoring
January 14, 2016
Post by Blog Staff
For many, the start of a new year is a time for setting New Year's resolutions. Many of these resolutions will include goals for the year, like saving money, paying off debts, volunteering in the community more, and living a healthier lifestyle. Living a healthier lifestyle and/or getting in better shape are always popular resolutions. Individuals may be further motivated to achieve .......
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Applying the USPTO Guidance on Patent Eligibility of Software
December 11, 2015
Post by Blog Staff
-- Please select --                 The Supreme Court's June 25, 2014 decision in Alice Corp. Pty. Ltd. v. CLS Bank International, et al., was anticipated as being the case to decide once and for all whether software is patentable. Many were worried the decision would cause the demise of software patents while others hope.......
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Reminder: Are You Monitoring Your Competitors' Patents for Post-Grant Review?
November 22, 2015
Post by Jill N. Link, Pharm.D.
Jill N. Link, Pharm.D. There were many changes implemented by the USPTO as a result of the America Invents Act ("AIA"or generally Patent Reform). One these is the post-grant procedure (also referred to as Post-Grant Review (PGR)) for challenging the validity of a competitor's patent. However, there is a very limited time frame during which this useful procedure can be employed - withi.......
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Sales, Public Disclosure, and the One-Year Grace Period
November 19, 2015
Post by Blog Staff
. The America Invents Act (AIA) changed a number of provisions in the Patent Act (Title 35, U.S.C.). While many of these changes have not yet been subjected to scrutiny through litigation, a large number have been the subject of analysis by the USPTO, by virtue of their implementation into the rules of patent examination. Among the statutory provisions and rules that have the greatest.......
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Are electronic transmissions "articles"within 19 U.S.C. § 1337?
November 16, 2015
Post by Blog Staff
The United States International Trade Commission (USITC) is authorized by federal law (39 U.S.C. § 1337) to take action against the "importation … of articles that (i) infringe a valid and enforceable U.S. patent."USITC investigations represent an alternative to federal court intellectual property litigation, and may be especially useful where the allegedly infringing act invo.......
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Federal Circuit-Statements in Application Properly Used to Enable Prior Art
October 27, 2015
Post by Blog Staff
. One of the basic requirements for the grant of a patent by the USPTO is the invention must be shown to be "new."In practice, this means that the invention must be sufficiently different from the existing prior art, including patents, publications, and existing products. However, in order for a piece of prior art to preclude patentability, it must enable a person of ordinary skill in.......
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Australian High Court Rules Isolated Genes Unpatentable
October 08, 2015
Post by Blog Staff
. Whether or not genes are patent-eligible subject matter has been a much-discussed issue over the last several years. The 2013 decision by the U.S. Supreme Court in Ass'n for Molecular Pathology v. Myriad Genetics, Inc. established that that isolated DNA is a product of nature and therefore not patent eligible under Section 101 of Title 35 of the U.S. Code. The patent at issue in the U.S. My.......
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Streamlined, Expedited Patent Appeal Program for Small Entities Announced by USPTO
September 23, 2015
Post by Blog Staff
As of September 18, 2015, small or micro entities with only a single ex parte appeal pending before the Patent Trial and Appeal Board (PTAB) will be able to expedite review of their appeal in exchange for streamlining the process. According to the information provided on the USPTO website, the criteria for qualification for this new program include: The appeal must not involve any cl.......
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Patent Office Extends After Final Consideration Pilot Program
September 17, 2015
Post by Blog Staff
. The After Final Consideration Pilot (AFCP 2.0) program provides patent applicants at the USPTO with the opportunity to address issues that may remain in an application after a final rejection has issued. The AFCP 2.0 program is something of an exception to typical procedure, wherein a patent examiner has considerable discretion as to whether to even consider an amendment submitted a.......
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Patenting Ideas Previously Disclosed in an Earlier-Filed Provisional Application but Later-Filed Non-Provisional Application
September 10, 2015
Post by Blog Staff
Paul S. Mazzola Can an idea that has already been conceived (and published) still be patented? The scenario appears possible based on a recent holding from the United States Court of Appeals for the Federal Circuit. Many know that nearly all publicly available information with a publication date prior to the filing date of a patent application can constitute a prior .......
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Expanded Powers of the USITC
September 03, 2015
Post by Blog Staff
Under 19 U.S.C. §1337(b)(1) the U.S. International Trade Commission (USITC) is authorized to investigate allegations of unfair trade acts in the importation of articles that infringe a valid United States patent.  If a violation of the statute is found, the USITC issues an exclusion order that bars the importation of some or all of the infringing products and may issu.......
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New Patent Application Alert Service
August 13, 2015
Post by Blog Staff
The USPTO is now offering a Patent Application Alert Service (PAAS) that allows subscribers to stay current with patent application pre-grant publications that may be relevant or of interest. A subscriber will receive a weekly email alert  that is customizable to a search criteria set by the subscriber. Each email will also contain direct links to the published applications listed. .......
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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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USPTO Issues Updated Guidance on Patent Eligibility
August 03, 2015
Post by Blog Staff
Patent eligibility under 35 U.S.C. § 101 has been an area of significant change in recent years.  Several Supreme Court decisions have changed our understanding of what does and does not qualify for patent protection.  These decisions, in turn, have required a change in the procedures implemented by the USPTO during the examination of patents. The USPTO has now issued its most recen.......
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Google Patents and Cooperative Patent Classification (CPC)
July 24, 2015
Post by Blog Staff
Users of Google Patents might have noticed a recent update. In addition to a new interface and layout, the most exciting innovation is an improved searching function. As background, patentability requires an invention be novel and non-obvious. To determine whether these legal requirements are satisfied, the United States Patent and Tra.......
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Federal Circuit Weighs in on Abbreviated Biosimilar Applications
July 23, 2015
Post by Blog Staff
The Biologics Price Competition and Innovation Act (BPCIA) establishes an abbreviated pathway for regulatory approval of follow-on biological products that are highly similar to a previously approved product (the reference product).  The general structure of the abbreviated pathway, referred to as "biosimilar" licensure , is similar to that used for Abbreviated New Drug Applications (AND.......
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Impact of eBay on Injunctive Relief
July 20, 2015
Post by Blog Staff
Both preliminary and permanent injunctions can be crucial forms of relief in any patent case. In addition to preventing continuing infringement of a patent, an injunction puts the patent holder in a much better bargaining position for future licensing negotiations. In its eBay decision in 2006, the Supreme Court required lower courts to apply a four-part common law test for granting injunctiv.......
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Octane Fitness in Practice: Federal Circuit Applies Supreme Court Attorney Fees Standard
July 14, 2015
Post by Blog Staff
The Supreme Court decision in Octane Fitness LLC v. ICON Health and Fitness (previously discussed on Filewrapper®) changed the standard for awarding attorney fees in patent suits to the prevailing party in exceptional cases under Section 258 of the patent statute. In Octane Fitness, the Court further defined "exceptional cases"to mean those "that stands out from ot.......
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The Continuing Saga of the First IPR at the Federal Circuit
July 09, 2015
Post by Blog Staff
    The Federal Circuit has simultaneously issued an order and an opinion in In re Cuozzo Speed Technologies, LLC, previously discussed on Filewrapper® as being the first appeal arising from an inter partes review ("IPR‚¬) . The order issued by the .......
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Kimble v. Marvel-SCOTUS Declines to Overturn Brulotte
June 26, 2015
Post by Blog Staff
            Patent portfolios are often a substantial asset to business associations, and even for the individual inventor an issued patent or two can be Big Business. Patent assignments (i.e. wholesale buying and selling of patents and patent applications) are not the only ways to trade in the commodity. Many transactions take the form of licenses or assign.......
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Teva v. Sandoz Revisited
June 25, 2015
Post by Blog Staff
Teva v. Sandoz Revisited On June 18, 2015, a Federal Circuit panel reaffirmed that the key claim of the patent at issue inTeva v. Sandoz, was invalid as indefinite. The procedural posture and technical background leading up to this decision is discussed in aprior blog post.  The Federal Circuit ultimately concluded that they are still allowed to address if the question of .......
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Supreme Court Weighs in on Belief of Patent Invalidity and Induced Infringement
June 24, 2015
Post by Blog Staff
Under 35 U.S.C. § 271, a party can be held liable for infringement of a patent under in a number of different ways. The most common liability is for direct, literal infringement of the patent, meaning that accused party actually practices every element of the asserted patent claim(s). The statute also includes provisions for liability based on importation products (§ 271(g)); contributory.......
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"Intangible" Software Unpatentable? - AllVoice Developments v. Microsoft
May 28, 2015
Post by Blog Staff
  In this non-precedential opinion (Fed. Cir. 2015) the Court held claims 60-68 of U.S. Patent No. 5,799,273 (the "'273 Patent‚¬) invalid under 35. U.S.C. § 101 as not being directed to one of the four statutory categories of inventions identified in 35 U.S.C. 101. Claim 60 is set forth below: 60. A universal speech-recognition interface that enables opera.......
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Lost Profit Damages Require Actual Sales by Patentee
March 12, 2015
Post by Jonathan L. Kennedy
The award of damages in patent infringement cases is governed by 35 U.S.C. § 284. The statute provides "[u]pon finding for the [patent owner] the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court." The statu.......
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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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Claim Preambles as Limitations- the Saga Continues
February 25, 2015
Post by Blog Staff
The preamble of a patent claim normally recites some purpose or objective, but is generally not considered to limit the scope of the claim unless it "breaths life and meaning into the claim." There are a number of ways that the preamble can take on patentable weight, including by serving as the antecedent basis for a limitation in the body of the claim. In Pacing Tech v. Garmin, the Fe.......
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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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USPTO Releases New Guidelines on Patent Subject Matter Eligibility
December 16, 2014
Post by Blog Staff
The USPTO today released new Guidance on Patent Subject Matter Eligibility. The new guidance comes nearly 9 months after the first set of "2014 Procedure For Subject Matter Eligibility Analysis Of Claims Reciting Or Involving Laws Of Nature/Natural Principles, Natural Phenomena, And/Or Natural Products" were released in March 2014. The March guidelines sought to implement new procedures to address changes in th.......
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Shifting Pre-Trial Strategy in the Wake of Alice and Ultramercial
December 04, 2014
Post by Blog Staff
Four recent Supreme Court cases involving patentable subject matter under 35 U.S.C. § 101 (Bilski v. Kappos, Mayo Collaborative Services v. Prometheus Laboratories, Inc., Ass'n for Molecular Pathology v. Myriad Genetics, Inc., and Alice Corp. v. CLS Bank International ) have had the practical effect of heightening the standard for patentability. However, these cases may also be altering the way patent c.......
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USPTO Publishes its 2014 Patent Public Advisory Committee Annual Report
December 03, 2014
Post by Jonathan L. Kennedy
The Patent Public Advisory Committee (PPAC) for the USPTO published its Annual Report for the 2014 fiscal year. The annual report is directed to the President of the United States and addresses many issues faced in the previous fiscal year, summaries of goals met, and recommendations for the future. The 2014 report expressed concerns over the effect of sequestration and the USPTO's budget........
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Ways to Accelerate Patent Examination Before the USPTO Part 4, Final
November 18, 2014
Post by Jill N. Link, Pharm.D.
By As discussed in a series ofpriorpostings, there are various options to expedite examination and/or decrease the pendency and delays associated with patent examination before the United States Patent and Trademark Office (USPTO). These include: (1) the First Action Interview Pilot Program (see Part 1); (2) Track One Prioritized Examination (see Part 2); (3) Accelerated Examination (see Part .......
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Oral Arguments Held in Appeal of First IPR
November 18, 2014
Post by Jonathan L. Kennedy
By Jonathan Kennedy On November 3, 2014, a three-judge panel of the Federal Circuit heard oral arguments in In re Cuozzo—the appeal from the first inter partes review ("IPR") instituted by the USPTO. As noted in our previouspost, the appeal presents a number of interesting procedural and substantive issues. While the oral argument did not address all of the issues on appeal, the arguments from.......
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Ways to Accelerate Patent Examination Before the USPTO Part 3
November 11, 2014
Post by Jill N. Link, Pharm.D.
By As discussed in at wopostingslastweek, there are a few options to patent applicants to combat the long pendency, slow processing and delays in examination before the United States Patent and Trademark Office (USPTO). The First Action Interview (FAI) Pilot Program and Track One Prioritized Examination were discussed as options to expedite the pace of patent examination. The various op.......
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STEM Education Linked to Increased Innovation, Patenting
November 07, 2014
Post by Jill N. Link, Pharm.D.
An interesting new discussion paper from John V. Winters at Oklahoma State University highlights the connection between foreign and native college graduates with science, technology, engineering, and math (STEM) degrees and per capita patenting. The data appear to disclose that the amount of STEM degrees per metropolitan area significantly increases the amount of patents issued per area. This correlation is also s.......
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MVS Filewrapper - Blog:Ways to Accelerate Patent Examination Before the USPTO - Part 2
November 07, 2014
Post by Jill N. Link, Pharm.D.
As discussed in a first posting earlier this week, there are a few options to patent applicants to combat the long pendency, slow processing and delays in examination before the United States Patent and Trademark Office (USPTO). The First Action Interview (FAI) Pilot Program was discussed as one option to expedite the pace of patent examination once an application reaches a patent examiner. The various options and.......
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Ways to Accelerate Patent Examination Before the USPTO
November 04, 2014
Post by Blog Staff
Long pendency, slow processing and delays in examination due to patent backlog before the United States Patent and Trademark Office (USPTO) are common concerns voiced by patent applicants. Although it may provide some comfort to know that backlogs are decreasing and overall examination timeframes are improving, many patent applicants remain frustrated while waiting in line for an average of nearly 19 months .......
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Is the Supreme Court Re-Aiming Markman?
October 17, 2014
Post by Blog Staff
The 1996 United States Supreme Court decision in Markman v. Westview Instruments established a landmark change for claim construction in patent infringement cases. That case established that the meaning of the claim language of a patent is a matter of law for a judge to decide, and not a matter of fact that should be determined by the jury. Since the decision, what is now known as a "Claim Construction Heari.......
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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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Legitimate Advocacy and Genuine Misrepresentation of Material Facts
August 25, 2014
Post by Blog Staff
The Federal Circuit has issued a decision inApotex Inc. v. UCB, Inc., upholding a district court's finding that Apotex's U.S. Patent No. 6,767,556 ("the '556 patent") is unenforceable due to inequitable conduct. Dr. Sherman, founder and chairman of Apotex, wrote the '556 patent application and is its sole inventor. The '556 is based on Canadian application filed on April 5, 2000........
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Critical Versus Optional, but Desireable Claim Elements
August 18, 2014
Post by Blog Staff
On August 6, 2014, the Federal Circuit Court of Appeals issued its opinion in ScriptPro, LLC v. Innovation Associates, Inc. In 2006, the Petitioner ScriptPro, LLC sued Innovation Associates, Inc. for infringement of claims 1, 2, 4, and 8 of U.S. Patent No. 6,910,601 ("the '601 patent"). The '601 patent describes a "collating unit" that uses sensors to automatically dispense and organiz.......
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Federal Circuit Invalidates Patent Claims As Non-Patentable Subject Matter
August 08, 2014
Post by Blog Staff
The U.S. Court of Appeals for the Federal Circuit's recent decision in Digitech Image Technologies v. Electronics for Imaging, Inc., upheld a decision that patent claims directed to a collection of numerical data that lacks a physical component or manifestation as well as an abstract idea of organizing data through mathematical correlations are invalid. The plaintiff, Digitech Image Technologies, filed in.......
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Court of Federal Claims Confirms Payment of Maintenance Fees Still Required
August 05, 2014
Post by Blog Staff
A recent decision by the U.S. Court of Federal Claims ("CFC") has upheld the statutorily-mandated maintenance fees required by the USPTO in order to keep issued patents in force. The owner of an issued patent must pay maintenance fees to the USPTO three times during the lives of their issued patents to keep them in force: at three years and 6 months after grant, at seven years and 6 months after grant,.......
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USPTO Patent Invalidation Precludes Judicial Equitable Remedies and Sanctions
July 31, 2014
Post by Blog Staff
The U.S. Court of Appeals for the Federal Circuit has issued a decision inePlus, Inc. v. Lawson. ePlus sued Lawson asserting infringement of two patents—U.S. Patent Nos. 6,023,683 ("the '683 patent") and 6,505,172 ("the '172 patent"). At trial, the district court held two of ePlus's asserted system claims and three of ePlus's asserted method claims not invalid, and the j.......
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USPTO Issues Preliminary Guidance on Patentability Based on Alice Corp.
July 29, 2014
Post by Blog Staff
On June 25, 2014 the USPTO Deputy Commissioner for Patent Examination Policy released aMemorandum to the Patent Examining Corps that provides examiners with preliminary instructions related to subject matter eligibility of claims involving abstract ideas under 35 U.S.C. §? 101 in view of the Supreme Court Decision in Alice Corporation Pty. Ltd. v. CLS Bank Int.......
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Federal Circuit Weighs in on Stays for Post-Grant Review
July 24, 2014
Post by Blog Staff
The Federal Circuit has issued an opinion in VirtualAgility Inc. v. Salesforce.com, Inc., providing clarification regarding how court should properly determine whether to stay litigation during later-requested post-grant PTO proceedings. Under the America Invents Act, a district court is permitted, but not required, to grant such a stay. The statute also provides a list of four factors that the district court is.......
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PTO Interference Decisions do not Preclude Invalidity Defenses in Court
July 23, 2014
Post by Blog Staff
The Federal Circuit has issued a decision in AbbVie v. Janssen Biotech and Centocor Biologics, which relates to patents that broadly cover antibodies which can neutralize activity of human interleukin 12 (IL-12) and have useful application in the treatment of autoimmune disorders. The patent owner, AbbVie, sued Janssen and Centocor for infringement of the patents at issue. At trial, the jury found that all of the.......
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Generic Computer Implementation Cannot Save Patent-Ineligible Abstract Idea
June 23, 2014
Post by Blog Staff
On June 19, 2014, the Supreme Court issued its much-anticipated opinion inAlice Corp. v. CLS Bank Int'l. The Petitioner, Alice Corporation ("Alice Corp.") is the assignee of the four patents at issue which disclose method, system, and media claims related to a computerized scheme for mitigating "settlement risk." Respondents CLS Bank International and CLS Services Ltd. ("CLS") o.......
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USPTO Glossary Pilot Program
June 16, 2014
Post by Blog Staff
The USPTO has instituted a new program, the Glossary Pilot Program, which began June 2, 2014. The program will allow applicants for computer-related inventions to petition to make special entry into the Glossary Pilot Program with the filing of an application. Applications accepted into this pilot program will receive expedited processing and be placed on an examiner’s special docket prior to the first offic.......
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Federal Circuit Holds Common Sense Cannot Establish Presence of an Element
June 13, 2014
Post by Blog Staff
The Federal Circuit's recent decision in K/S HIMPP v. Hear-Wear Technologies presents an interesting development in the law of obviousness. In affirming a finding of non-obviousness by the PTO Board of Patent Appeals and Interferences ("BPAI"), the Federal Circuit held that while common sense or basic knowledge may provide a reason to combine elements present in the prior art, it cannot establish th.......
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Internet Discussion Systems as Prior Art
June 10, 2014
Post by Blog Staff
The Federal Circuit's recent decision inSuffolk Technologies, LLC, v. AOL Inc., and Google Inc., adds another item to the list of "printed publications" that may preclude patenting of a claimed invention: posts on internet newsgroups. In June 2012 Suffolk Technologies, LLC sued Google Inc. for infringement of U.S. Patent No. 6,081,835 ("the '835 patent"), related to "methods a.......
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Supreme Court Holds Induced Infringement Requires Direct Infringement
June 03, 2014
Post by Blog Staff
This week the U.S. Supreme Court issued its decision in Limelight Networks, Inc. v. Akamai Technologies, concluding that an act of direct patent infringement must be present for a claim of inducement of infringement. The decision unanimously held that a defendant may not be liable for inducing infringement of a patent under 35 U.S.C. Section 27(b) when no one has directly infringed the patent under Section 271(a) .......
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Supreme Court Defines Scope of Definiteness Required in Patent Claims
June 02, 2014
Post by Blog Staff
Today the U.S. Supreme Court issued its decision in Nautilus, Inc. v. Biosig Instruments, Inc. defining the standard for definiteness necessary to meet the requirements of 35 U.S.C. Section 112, second paragraph. The decision unanimously rejected the "insolubly ambiguous" standard previously employed by the Federal Circuit to determine whether patent claims meet the statutory requirement to "partic.......
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Supreme Court Issues Indefiniteness and Inducement Decisions
June 02, 2014
Post by Blog Staff
The Supreme Court this week issued its decisions in two much anticipated IP cases. The Court's decision in Limelight Networks v. Akamai Tech. concludes that at least one underlying act of direct patent infringement must be present for a claim of inducement of infringement. In Nautilus v. BioSig the Court instituted a new standard for indefiniteness, supplanting the existing "insolubly ambiguous" st.......
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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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Federal Circuit Finds Clones Unpatentable
May 12, 2014
Post by Blog Staff
The Federal Circuit issued its opinion in In re Roslin Institute, a case involving cloned animals. The Roslin Institute (Roslin) owns a patent for methods of cloning animals, based on the work that created Dolly the Sheep. The inventors of that patent also assigned to Roslin an application claiming protection for the clones themselves. During prosecution, the USPTO deemed the claims to the clones contained in t.......
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"Insolubly Ambiguous" Standard not Applicable at the USPTO
May 09, 2014
Post by Blog Staff
InIn re Packard the Federal Circuit held that the USPTO need not follow the insolubly ambiguous standard in order to satisfy a prima facie rejection for indefiniteness. Rather, the Federal Circuit held that when the USPTO has initially issued a well-grounded rejection that identifies ways in which language in a claim is ambiguous, vague, incoherent, opaque, or otherwise unclear in describing and defining the clai.......
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Jury Returns Verdict for Apple in Patent Infringement Suit
May 06, 2014
Post by Blog Staff
On Friday, May 2, 2014 a jury found Samsung Electronics Co. ("Samsung") liable for infringing two patents owned by Apple, Inc. ("Apple"). The two patents are U.S. Patent No.5,946,647, which is directed to systems and methods that analyze text for things that can be hyperlinked, e.g., email addresses, websites, and phone numbers, and then provides quick link options; and U.S. Patent No.8,046,72.......
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MVS Filewrapper - Blog:Supreme Court Revises Standards for Sanctions in Exceptional Patent Cases
April 29, 2014
Post by Blog Staff
Two U.S. Supreme Court opinions issued today—Octane Fitness, LLC v. Icon Health & Fitness, Inc. and Highmark Inc. v. Allcare Health Management System, Inc.—have changed the framework for which exceptional cases are analyzed under § 285 of the Patent Act. For years, the controlling case with regard to § 285 of the Patent Act was Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc. In.......
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Competing Without Practicing - Preliminary Injunctions for Patent Infringement
April 24, 2014
Post by Blog Staff
InTrebo Manufacturing, Inc., v. Firefly Equipment, LLC, the Federal Circuit held that a plaintiff seeking a preliminary injunction for patent infringement does not need to practice the patent at issue in order to receive an injunction, so long as it sells a competing product. Trebro brought suit alleging that FireFly's sod harvester product infringed its U.S. Patent No. 8,336,638, and seeking a preliminary i.......
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StoneEagle v. Gillman - Patent Inventorship, Authorship, and Ownership
March 31, 2014
Post by Blog Staff
In StoneEagle Services, Inc.,v. Gillman the Federal Circuit confirmed that assistance in reducing aninvention to practice generally does not contribute to inventorship. In this case, the issue centered on whether there was a sufficient controversy regarding inventorship for the case to remain in federal court. The plaintiff alleged that the defendant had "falsely claimed that it is his patent, that he wrote .......
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Means-Plus-Function Claims and Written Description for Priority
February 10, 2014
Post by Blog Staff
InEnOcean GMBH v. Face International Corp., the Federal Circuit vacated and remanded a final order of the U.S. Patent and Trademark Office (“PTO”) and the Board of Patent Appeals and Interferences (“Board”) with respect to EnOcean’s U.S. Patent Application No. 10/304,121. The Federal Circuit held (1) the term “receiver” was recited with sufficient structure as to not inv.......
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Patent Invalidity Based on Non-Compliant Claims of Priority
February 03, 2014
Post by Blog Staff
InMedtronic Corevalve, LLC v. Edwards Lifesciences Corp., the Federal Circuit affirmed summary judgment of invalidity of the asserted claims of U.S. Patent No. 7,892,281 ("the '281 patent") based on the patent's claimed priority date. Medtronic sued Edwards for infringement of claims 3, 4, 7, 12, 14, and 15 of the '281 patent. The U.S. District Court of the Central District of California gr.......
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Federal Circuit Clarifies Patent Term Adjustment
January 23, 2014
Post by Blog Staff
The U.S. Court of Appeals for the Federal Circuit has issued an opinion that provides guidance for how Patent Term Adjustments should be calculated. Between June 2009 and May 2011, Novartis filed four civil lawsuits against the Director of the United States Patent and Trademark Office (PTO) in the United States District Court for the District of Columbia claiming that, for twenty-three of its issued patents, the D.......
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2014 Supreme Court Cases Relating to Intellectual Property
January 16, 2014
Post by Blog Staff
On January 10, 2014 the Supreme Court agreed to review a variety of intellectual property cases in the upcoming session, including two patent cases, a copyright case, and a trademark case (including Lanham Act claim). A brief overview of these cases is provided and more detail will be available once decisions are entered by the Court. Limelight Networks, Inc. v. Akamai Technologies, Inc. (U.S., No. 12-786.) Ques.......
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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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Unitary Patent - The New European Patent Regime
December 12, 2013
Post by Blog Staff
Starting in 2014, the European Union will provide another option for obtaining patent protection throughout the European Union and a more streamlined approach to enforcing or invalidating patents throughout the EU. In 2012 the European Parliament and European Council approved the “EU unitary patent package,” which establishes the European Unitary Patent and the Unified European Patent Court. The Unit.......
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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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Exhausting Patent Rights Without a "Sale"
November 22, 2013
Post by Blog Staff
InLifeScan Scotland, LTD v. Shasta Technologies, LLC, the Federal Circuit clarified the ability of a patnet holder to enforce patent rights in a product it has given away, but not "sold." Defendant Shasta Technologies appealed from a decision of the United States District Court for the Northern District of California granting LifeScan Scotland a preliminary injunction. The injunction prohibits Shasta f.......
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New and Useful - August 26, 2013
August 26, 2013
Post by Blog Staff
· InUniversity of Utah v. Max-Planck-Gesellschaft, the Federal Circuit held that a patent lawsuit between a state university and the officers of another state university is not a controversy between two states. The case began when the University of Utah (“UUtah”) sued the Max Planck Institute and the University of Massachusetts (“UMass”) to correct inventorship of two paten.......
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Supplier's Agreement to Manufacture May Trigger On-Sale Bar
August 16, 2013
Post by Blog Staff
In an Opinion on August 14, 2013 (Hamilton Beach Brands, Inc. v. Sunbeam Products, Inc.), the Federal Circuit ruled that the on-sale bar was triggered when a purchase order for slow cookers by patentee Hamilton Beach was confirmed by its supplier. The Court stated that Hamilton Beach’s transaction with its supplier was an offer for sale of a product that anticipated the asserted claims and that the inventio.......
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Contract Enforceability Beyond Patent Term
July 23, 2013
Post by Blog Staff
InKimble v. Marvel Enterprises, the plaintiff patent owner appealed the United States District Court for the District of Arizona's decision to not extend royalty payments beyond the life of a licensed patent. The United States Court of Appeals for the Ninth Circuit affirmed the lower court's decision. In December 1990, Kimble met with an officer Marvel to discuss licensing his patent for a device that a.......
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New and Useful - July 10, 2013
July 10, 2013
Post by Blog Staff
· InConvolve v. Compaq Computer the Federal Circuit affirmed in part the United States District Court for the Southern District of New York ruling that Compaq Computer Corp., Seagate Technology, LLC., and Seagate Technology, Inc. did not misappropriate 11 of 15 alleged trade secrets from Convolve, Inc. In addition, the Federal Circuit affirmed the district court’s judgment that 8 claims of U.......
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New and Useful - July 8, 2013
July 08, 2013
Post by Blog Staff
· The Federal Circuit inUltramercial, Inc. v. Hulu, LLC held that the district court erred in holding that the subject matter of U.S. Patent No. 7,346,545 ('545) is not a "process" within the language and meaning of 35 U.S.C. § 101. The Federal Circuit reversed and remanded this case stating the claims were not abstract and were patent eligible. The '545 patent claims a meth.......
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Supreme Court Addresses Product of Nature Doctrine Relating to Gene Patents
June 13, 2013
Post by Blog Staff
The Supreme Court today handed down its decision in Association for Molecular Pathology v. Myriad Genetics, Inc. The Court held that isolated DNA is a product of nature and not patent eligible merely because it has been isolated, but that complementary DNA (cDNA) is patent eligible because it is not naturally occurring. The Court limited its holding to the patentability of isolated genes and cDNA, concluding t.......
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Federal Circuit Deems Software Patent Ineligible, Provides Little Certainty
May 17, 2013
Post by Blog Staff
In its recent en banc decision inCLS Bank v. Alice Corp, the Federal Circuit has affirmed the finding of subject matter ineligibility of Alice Corp's method and software for management of risk in financial transactions through use of a third party intermediary. The ten-member panel produced seven different decisions, but did not produce any majority opinion. However, seven judges agreed that the method and c.......
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Supreme Court Rejects Patent Exhaustion Defense for Patented Bean Replanting
May 13, 2013
Post by Blog Staff
The Supreme Court has handed down its much anticipated decision in Bowman v. Monsanto Co., holding that the defense of patent exhaustion does not apply to the practice of planting and harvesting patented seeds through planting and harvesting without the patent holder's permission. The case centers on the Roundup Ready gene, which confers resistance to glyphosate herbicides such as Roundup. Monsanto owns U.S. .......
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Intrinsic Evidence Can Provide Adequate Support to Overcome Indefiniteness
May 01, 2013
Post by Blog Staff
In Biosig Instruments, Inc. v. Nautilus, Inc., the Federal Circuit reversed a decision by the U.S. District Court for the Southern District of New York finding a patent invalid for indefiniteness, relying on intrinsic evidence. Biosig Instruments, Inc. (“Biosig”) is the assignee of U.S. Patent No. 5,337,753 (“the ’753 patent”). The ’753 patent is directed to a heart rate monit.......
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New and Useful - April 23, 2013
April 23, 2013
Post by Blog Staff
· InK-Tech Telecoms v. Time Warner Cable, the Federal Circuit confirmed that the standard for evaluating the adequacy of complaints alleging direct patent infringement remains Form 18 of the Appendix of Forms to the Federal Rules of Civil Procedure ("Form 18"). K-Tech filed separate complaints against Direct TV and Time Warner Cable (“TWC”) on the same day, alleging infringeme.......
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New and Useful - April 10, 2013
April 10, 2013
Post by Blog Staff
· InIn re Hubbell the Federal Circuit confirmed the rejection of all of the pending claims in an application, filed with Jeffrey Hubbell, Jason Schense, Andreas Zisch, and Heike Hall as named inventors. The invention disclosed in the application was based on research performed while all of the named inventors were at California Institute of Technology (CalTech). As a result, the application is assig.......
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New and Useful - April 5, 2013
April 05, 2013
Post by Blog Staff
· In Power Integrations, Inc. v. Fairchild Semiconductor International, Inc. the Federal Circuit clarified several points relating to claim construction, determinations of non-obviousness, and calculation of damages. The court confirmed that claiming a “circuit” in conjunction with a sufficiently definite structure for performing the identified function is adequate to bar means-plus-fu.......
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New and Useful - March 15, 2013
March 15, 2013
Post by Blog Staff
In Brilliant Instruments, Inc. v. GuideTech, LLC, the Federal Circuit reversed a district court’s order granting summary judgment of non-infringement of three related patents. The three asserted patents relate to circuits that measure the timing errors of digital signals in high-speed microprocessors. The inventor of the three patents left employment with the plaintiff, GuideTech, and founded the.......
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U.S. Supreme Court Addresses Jurisdiction In Patent Related Case
February 21, 2013
Post by Blog Staff
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New and Useful - February 21, 2013
February 21, 2013
Post by Blog Staff
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Federal Circuit Addresses Subject Matter Jurisdiction in Patent-Related Cases
February 14, 2013
Post by Blog Staff
In Semiconductor Energy Lab. Co., Ltd. v. Yujiro Nagata, the Federal Circuit weighed in on federal subject matter jurisdiction and provided two important reminders: (1) Just because a cause of action originates from a patent, standards in the patent statute, or even from other patent litigation, it is the present cause of action and claims that dictate whether subject matter jurisdiction is proper; and (2) .......
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Accent Packaging, Inc. v. Leggett & Platt, Inc.: Reminders on Claim Construction, Discovery Matters
February 06, 2013
Post by Blog Staff
In Accent Packaging, Inc. v. Leggett & Platt, Inc., the Federal Circuit affirmed in part and reversed in part the district court’s grant of summary judgment of non-infringement. Accent is the assignee of U.S. Patents 7,373,877 (the '877 patent) and 7,412,992 (the '992 patent). The patents are drawn to a wire tier device useful for baling and handling recyclables and solid waste to facilitate be.......
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New and Useful - February 6, 2013
February 06, 2013
Post by Blog Staff
· In Allergan, Inc. v. Barr Labs the Federal Circuit affirmed a decision by the District of Delaware finding that Barr Laboratories, Inc. and Sandoz Inc. had infringed a patent owned by Allergen, Inc., and finding the patent-in-suit valid. Barr and Sandoz each filed abbreviated new drug applications (ANDA) for a generic version of the drug covered by the Allergen patent, and both ANDAs asserted tha.......
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Federal Circuit Addresses Obviousness Rationales and Counterarguments
January 17, 2013
Post by Blog Staff
Recently, the Federal Circuit issued its opinion in CW Zumbiel v. Kappos. The Federal Circuit affirmed the Board of Patent Appeals and Interferences’ (“BPAI”) finding that multiple claims in U.S. Patent No. 6,715,639 (“the ’639 patent”) were obvious and therefore invalid. The ’639 patent is directed to a “carton with an improved dispenser.” The carton is for.......
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Another Billion Dollar Patent Verdict
January 03, 2013
Post by Blog Staff
Another billion dollar verdict has been handed out in a patent case. Read the verdict in Carnegie Mellon University v. Marvell Technology Group, LTD. here. This latest case continues a string of billion dollar verdicts highlighted by Jonathan Kennedy in the latest edition of MVS Briefs. Carnegie Mellon brought suit alleging infringement of two of its patents, Patent No. 6,201,839 and Patent No. 6,438,180, relat.......
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After-the-fact Patent Assignment Too Late to Save Jurisdiction
November 24, 2010
Post by Blog Staff
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USPTO proposes tiered system for patent application examination speed
June 03, 2010
Post by Blog Staff
In a press release today, the USPTO has proposed a tiered examination system where applicants could choose to pay a higher fee in exchange for quicker examination of an application or could opt for a delay of up to 30 months before docketing for examination. This is the latest in Director Kappos' attempts to control application pendency at the Office.The "prioritized examination" track would be mu.......
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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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USPTO announces e-Office Action program for patent applications
July 22, 2009
Post by Blog Staff
In a press release, the USPTO announced the availability of the e-Office Action program for patent applications. Under the program, applicants or attorneys may sign up to receive an email notice when an office action is mailed in an application, and can then download the office action from Private PAIR. This avoids the time delay of mailing the office action, thereby getting notice of the action sooner than pr.......
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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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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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Patent litigation by the numbers
June 11, 2008
Post by Blog Staff
PricewaterhouseCoopers recently published its annual litigation study entitled 2008 Patent Litigation Study: Damages awards, success rates and time-to-trial. The study examined a wide range of variables pertaining to patent litigation from 1995 to 2007. With the number of patents granted increasing every year, the number of patent cases has continued to grow. Also, with the number of cases growing the amount o.......
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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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All versions of MPEP now available on USPTO website
February 08, 2008
Post by Blog Staff
The USPTO has now made available all prior editions of the Manual of Patent Examining Procedure on its website here. This is great news for those who have ever had to try to track down a version of the MPEP that was more than about 10 years old, as they had not previously been easily accessible online.....
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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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USPTO to start enforcing requirement that inventor oaths include reference to duty of disclosure
January 23, 2008
Post by Blog Staff
In a notice dated yesterday, the USPTO announced that it will begin enforcing compliance with 37 C.F.R. § 1.63(b)(3), which requires that inventor oaths include an acknowledgement of the duty to disclose information material to patentability under 37 C.F.R. § 1.56. Oaths filed on or after June 1, 2008 will have to have the language from the rule, or the USPTO will reject the oath as defective.The USPT.......
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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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Roundup of media coverage of oral arguments in Quanta v. LG
January 21, 2008
Post by Blog Staff
After the Supreme Court heard oral argument last week in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937), the media and blogosphere have begun to weigh in on the arguments. You can find our take on the arguments in this post, or click below for a sampling of the coverage from other sources. A decision is not expected until late spring. Media outlets Associated Press ReutersCNNWall Street Journal ($.......
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Oral argument in Quanta v. LG - some highlights
January 18, 2008
Post by Blog Staff
On Wednesday, the Supreme Court heard oral argument in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937), a case regarding the scope of the concept of patent exhaustion, also known as the first sale doctrine. While the entirety of the arguments is worth a read (the transcript is available here), click below for our impressions of the arguments.A bit of background is necessary in order to best understan.......
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Timely article in Popular Science regarding the USPTO and its backlog
January 16, 2008
Post by Blog Staff
The passage below is from an article in Popular Science, and is timely given the current workload of the USPTO and statements by Director Dudas that application pendency will continue to increase:The Patent Office Has Become A National DisgraceTHE Patent Office, in Washington, D. C, recently sent to a workman in a chemical factory in the Middle West a $100,000 piece of paper that wasn't worth a cent.It represe.......
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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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Tomorrow at the Supreme Court: Oral argument in Quanta v. LG
January 15, 2008
Post by Blog Staff
Tomorrow the Supreme Court will hear oral argument in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937). The case will determine whether patent owners who sell products embodying their patents conditionally are able to recover damages for patent infringement if the products are subsequently sold beyond the scope permitted by the original sale.The question presented is:Whether the Federal Circuit erred by.......
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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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AUTM releases 2006 annual licensing survey
December 27, 2007
Post by Blog Staff
The Association of University Technology Managers (AUTM) has released its summary report for the 2006 AUTM U.S. Licensing Activity Survey. The yearly survey is an ongoing effort of the organization to assist in informing the public about academic technology transfer professionals in order to improve public understanding of their activities. The 2006 Annual Report reflects numerous changes and improvements over.......
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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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First wave of amicus briefs filed in Quanta v. LG, argument set for January 16
November 26, 2007
Post by Blog Staff
Earlier this month, amicus briefs either supporting the Petitioner or neither party were filed with the Supreme Court in connection with Quanta Computer, Inc. v. LG Electronics, Inc (No. 06-937). Our previous coverage of the case can be found in these three posts. The Court also set oral argument for January 16, 2008.Some discussion of the amicus filings and links to the briefs after the jump.The question pr.......
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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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Dramatic change in UK trademark policy; Australia eliminates obligation to disclose search reports
October 23, 2007
Post by Blog Staff
There have been two interesting changes in foreign IP practice over the past month. Effective October 1, 2007, the UK Trade Marks Office changed its policy such that it will no longer raise objections to applications based on prior existing applications/registrations. Instead, it will be the policy to write to owners of earlier potentially conflicting marks advising them of the application so that the owners can.......
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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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New revision of MPEP now available
October 15, 2007
Post by Blog Staff
The USPTO today released the newest revision of the Manual of Patent Examining Procedure (MPEP). The new version is the Eighth Edition, Revision 6. Changes from the previous revision can be found here.No mention of KSR in this revision. The first mention of KSR regarding obviousness is not expected until the Ninth Edition, likely to be released sometime next year.....
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The clear target of the new continuation and claim limit rules: Thomas Edison
October 08, 2007
Post by Blog Staff
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." THANK GOODNESS FOR COMMISSIONER DUDAS AND HIS NEW RULESBefore 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 prohib.......
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Supreme Court to hear patent exhaustion case
September 25, 2007
Post by Blog Staff
In its first conference of this Term, the Supreme Court today granted certiorari in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937). Our previous coverage of the case can be found in these two posts.The question presented is:Whether the Federal Circuit erred by holding, in conflict with decisions of this Court and other courts of appeals, that respondent's patent rights were not exhausted by it.......
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Seventh Circuit: Noncompete provision in license agreement reasonable, not patent misuse
September 19, 2007
Post by Blog Staff
In what the court described as "one of those non-patent patent cases," the Seventh Circuit yesterday affirmed a grant of summary judgment to a patentee who, in its license agreement, included a noncompete provision. The licensee had terminated the license, and argued the noncompete constituted patent misuse, and was therefore void.The court rejected this argument. Applying rule of reason analysis, the.......
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More examination outsourcing by the USPTO?
September 17, 2007
Post by Blog Staff
According to a news release published today, the USPTO is exploring the feasability of having the Swedish Patent and Registration Office (PRV) perform the search and examination of international applications filed under the PCT in the U.S. receiving office. In the release, the USPTO notes that it receives about 50,000 international applications and about 400,000 national applications per year. The pilot progr.......
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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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Government recommends Supreme Court hear patent exhaustion case
September 06, 2007
Post by Blog Staff
In a filing on August 24 (that got put on the back burner with the hubbub about the new continuation and claim limit rules), the government has recommended that the Supreme Court grant certiorari in Quanta Computer, Inc. v. LG Electronics, Inc. (No. 06-937). Detail about the Federal Circuit's decision may be found in this post. The question presented is:Whether the Federal Circuit erred by holding, in conf.......
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Third Circuit: Patentee's intentional falsehood to standards body can support antitrust claim
September 05, 2007
Post by Blog Staff
Maybe it's time for Qualcomm to rethink how it approaches standard-setting organizations. In a decision today, the Third Circuit reversed in part a district court's dismissal of rival Broadcom's antitrust claims, finding that Broadcom had adequately pleaded actions by Qualcomm that, if true, would constitute an antitrust violation.The facts of the case are similar to those in a recent case in Calif.......
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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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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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Judge sanctions Qualcomm for concealing over 200,000 pages of documents, providing false testimony
August 08, 2007
Post by Blog Staff
It's been a rough week for Qualcomm. On Monday, the Bush administration let stand the ITC ruling barring import of mobile phones using certain Qualcomm chips unless a license fee is paid to Broadcom, a competing company who holds patents covering the power management technology used in the chips. Also Monday, a federal judge in California found that Qualcomm had committed serious litigation misconduct in a.......
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$1.5 billion infringement verdict against Microsoft vacated
August 07, 2007
Post by Blog Staff
A judge in the Southern District of California yesterday set aside a $1.5 billion infringement verdict against Microsoft in favor of Alcatel-Lucent (more detail on the facts of the case can be found in this post). The judgment was the largest ever in a patent infringement lawsuit, and has been used as an example (see page 15 of Anthony Peterman's testimony before the House, which specifically references .......
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Summary of proposed final KSR examining guidelines surfaces
August 06, 2007
Post by Blog Staff
The Patent Prospector is reporting that the summary of the USPTO's post-KSR obviousness examination guidelines recently sent to OMB has apparently surfaced. Note that this summary is not confirmed, but it comes from a typically reliable source. Either click below or head over to the Patent Prospector to read the summary.Update (11:15): another source has confirmed the accuracy of the summary.Further .......
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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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KSR in litigation: Summary judgment of obviousness granted post-KSR after denial pre-KSR
July 31, 2007
Post by Blog Staff
The Wall Street Journal today is reporting about a patent infringement case in the Northern District of California that is believed to be the first instance where a district court has changed its opinion regarding the validity of a patent as a result of KSR. The court found two principles from KSR to "guide" the obviousness analysis:First, "[w]hen a patent 'simply arranges old elements with .......
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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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Federal Circuit reverses claim construction and noninfringement finding
June 27, 2007
Post by Blog Staff
In a claim construction appeal, the Federal Circuit found that the doctrine of claim differentiation, combined with statements made in a petition to make special, led to a broader claim construction than that offered by the district court. Also, there was no unequivocal disclaimer of the broader claim scope during prosecution of either the patent-in-suit or its parent application, as found by the district court........
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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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Peer to Patent "community" patent review officially launches
June 18, 2007
Post by Blog Staff
The Peer to Patent project (previously blogged about June 7, March 5, and February 28) is now up and running for its one year trial period. As noted previously, only computer-related applications are eligible for this pilot program. Thus far, there are five applications in the system:User selectable management alert format (assigned to Hewlett Packard) Register tracking for speculative prefetching (assigned to .......
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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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Patent Office officially announces pilot plan for submission of prior art by third parties
June 07, 2007
Post by Blog Staff
The USPTO yesterday officially announced the institution of a pilot project concerning "public submission of peer reviewed prior art." As we previously blogged on March 5 and February 28, the pilot project will be voluntary, and limited initially to the "computer arts." It will be handled on the Peer-to-Patent website, developed by the Community Patent Review Project at New York Universi.......
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Thursday at the Federal Circuit: en banc arguments on the duty of care and waiver of privilege
June 05, 2007
Post by Blog Staff
This Thursday, the Federal Circuit will sit en banc to hear oral argument in In re Seagate Technology LLC, a mandamus case regarding a district court's order to produce certain attorney-client privileged materials. (Update (6/7): the audio of the oral argument is now available online at this link.) Like in many patent cases, one of the defendants, Seagate, chose to obtain an opinion from counsel regarding .......
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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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Federal Circuit addresses claim construction, on-sale and public use bars, and DJ jurisdiction
May 26, 2007
Post by Blog Staff
In a decision Friday, the Federal Circuit vacated in part a district court's claim construction of a several terms as well as its decision to find no infringement of patents owned by Honeywell. The court did, however, affirm the district court's retention of jurisdiction over the several withdrawn claims and the decision that Honeywell's pre-critical date activities were not barring sales or public u.......
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Australia's High Court weighs in on obviousness
May 25, 2007
Post by Blog Staff
There is a good post over at the Patent Prospector about a decision by the High Court of Australia (the equivalent to the U.S. Supreme Court) regarding the issue of obviousness in patent law. One notable passage:as a basic premise, obviousness and inventiveness are antitheses and the question is always "is the step taken over the prior art an 'obvious step' or 'an inventive step'"?.......
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Federal Circuit affirms damage award to Monsanto against farmer who saved seed
May 24, 2007
Post by Blog Staff
In the latest in a series of appeals to the Federal Circuit, the court affirmed a jury's award of damages to Monsanto for infringement of patents relating to glyphosate resistant plants. The defendant, a farmer, had saved seeds from his crops from one growing season to the next in violation of the terms of the license granted by Monsanto to use the seeds. In previous appeals, the finding of liability for pa.......
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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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Federal Circuit reverses lost profits award and finding of personal liability
May 18, 2007
Post by Blog Staff
In a decision today, the Federal Circuit reversed a jury's award of damages based on lost profits as well as personal liability against the defendant corporation's principal. The district court let the issue of lost profits damages go to the jury, but the Federal Circuit determined that, as a matter of law, the court should not have let the jury decide the issue because there was insufficient evidence fo.......
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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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Proper successor shielded from patent infringement claim
May 16, 2007
Post by Blog Staff
In General Mills, Inc. v. Kraft Foods Global, Inc., the Federal Circuit affirmed the judgment of the district court holding that General Mills's claim for patent infringement against Kraft Foods was barred by a covenant not to sue that General Mills granted to Farley Candy Company, Kraft's predecessor in interest. In affirming the district court's decision, the Court held that Kraft, when it acquir.......
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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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Federal Circuit post-KSR: Combination of familiar elements obvious when yielding predictable results
May 10, 2007
Post by Blog Staff
In this matter before the Federal Circuit, the Court affirmed the district court's grant of judgment that Fisher-Price's PowerTouch device did not infringe claim 25 of LeapFrog's U.S. Patent 5,813,861 ("the '861 patent") and that claim 25 of the '861 patent was invalid as obvious. Notably, the court cited the Supreme Court's KSR decision for the first time in a precedential.......
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Initial thoughts on Microsoft v. AT&T, a.k.a. Deepsouth: the sequel
April 30, 2007
Post by Blog Staff
In what could be termed a sequel to the Supreme Court's 1972 decision in Deepsouth Packing Co. v. Laitram Corp., the Court again found that if U.S. patent law is to extend its reach further into foreign acts, it must be Congress, not the courts, that extends it. The Court held that Microsoft's act of sending a "master" disk encoding Windows® abroad for installation on computers that would b.......
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Initial thoughts on KSR v. Teleflex
April 30, 2007
Post by Blog Staff
After an initial reading of the opinion in KSR Int'l Co. v. Teleflex Inc., several issues jump out.There are four (4) reasons why the Federal Circuit's TSM test is no longer the exclusive test for obviousnessWhile the Court noted that the Federal Circuit's "teaching-suggestion-motivation" (TSM) test was not necessarily inconsistent with cases such as Graham, the Court provided four different.......
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Today's opinions in KSR v. Teleflex and Microsoft v. AT&T
April 30, 2007
Post by Blog Staff
Click here for the opinion in KSR v. Teleflex.Click here for the opinion in Microsoft v. AT&T.More to come once we've had a chance to review the decisions. ....
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Supreme Court reverses both KSR and Microsoft
April 30, 2007
Post by Blog Staff
As reported at SCOTUS Blog, the Supreme Court has today ruled in two cases, reversing decisions of the Federal Circuit.The first came in KSR v. Teleflex, where the Court has apparently ruled 9-0 that the Federal Circuit's view on obviousness is too narrow, reversing the decision that Teleflex's invention was nonobvious. Previous coverage of this case can be found here (preview), here (oral argument), a.......
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Same terms, same meanings, unless specification indicates otherwise
April 27, 2007
Post by Blog Staff
In an appeal by Porta Stor, Inc. of a judgment in favor of PODS, Inc. for, among other things, patent and copyright infringement, the Federal Circuit reversed the judgment of patent infringement finding no literal infringement and finding that infringement under the doctrine of equivalents was barred by prosecution history estoppel. The court also reversed the grant of judgment as a matter of law on copyright .......
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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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Compulsory patent licenses for AIDS drugs: the beginning of an international trend?
April 26, 2007
Post by Blog Staff
The global concern over the spread of AIDS, particularly in developing countries, is prompting some countries to take action to make patented drugs more accessible to its citizens. Earlier this year, Thailand decided to "break," or require a compulsory license to, the patent for Efavirenz, marketed as Sustiva® and Stocrin®, patented by Merck (Orange Book entry). Thailand has also now enacted .......
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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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Supreme Court asks for Government's view on yet another patent case
April 16, 2007
Post by Blog Staff
In its order list released today, the Supreme Court has indicated that it may accept yet another appeal in a patent-related case, as it has invited the Office of the Solicitor General to file a brief stating the position of the United States on the case. The case is Quanta Computer, Inc. v. LG Electronics, Inc., and deals with the first sale doctrine in patent law. Specifically, the question presented in the .......
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Willful infringement affirmed; injunction vacated in light of eBay
April 13, 2007
Post by Blog Staff
The Federal Circuit affirmed a finding of willful infringement against a medical device manufacturer, but vacated a permanent injunction entered based on the old injunction standard to be reevaluated by the district court in light of the Supreme Court's decision in eBay v. MercExchange. The infringer obtained opinions of counsel regarding infringement at two different times. Initially.......
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Splenda leaves a bitter taste in competitors' mouths
April 10, 2007
Post by Blog Staff
The business may be all about sweetness, but the competition can be bitter. That's the story right now in the artificial sweetener business, with much of the action centered around sucralose, the sweetener in Splenda®. The sweetener is the subject of several currently pending cases.In the first, rival sweetener maker Merisant, maker of Equal® and Nutrasweet®, have sued the producer of Splenda&re.......
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Outdoor outfitters at odds over outerwear, order overturned
April 06, 2007
Post by Blog Staff
Competing sporting goods retailers Bass Pro Shops and Cabela's faced off in the Federal Circuit. The parties were involved in an earlier patent infringement suit where Bass Pro Shops sued Cabela's for infringing its patent relating to a vest with a "pivotable seat member." The parties settled that suit, and the court entered an order barring Cabela's from selling infringing garments durin.......
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Reebok files patent infringement against Nike over collapsible shoes
April 05, 2007
Post by Blog Staff
Earlier this week, #2 shoe manufacturer Reebok sued #1 shoe manufacturer Nike for patent infringement. The patent at issue, number 7,168,190, just issued in the end of January, and relates to collapsable shoe technology. The idea is that the shoe design allows it to be rolled or folded for easier packing into, for example a gym bag. The lawsuit alleges that at least 12 different styles of Nike shoes infringe th.......
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Certificate of correction invalid, infringement case continues with original claims
April 04, 2007
Post by Blog Staff
The Federal Circuit yesterday voided a certificate of correction which had been issued changing the scope of a patent's claims. Because the error corrected broadened the claims and was not the type of error that was "immediately apparent and leave no doubt as to what the mistake is," the certificate of correction was inappropriate. As a result, the finding of infringement under the "corrected&.......
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Another post-MedImmune declaratory judgment jurisdiction decision
March 30, 2007
Post by Blog Staff
The Federal Circuit addressed the requirements for declaratory judgment jurisdiction in a published decision for the second time this week. This time the parties are pharmaceutical companies, but the result is the same: the lower court, applying the old "reasonable apprehension of suit" standard, found no jurisdiction, the Federal Circuit, applying a post-MedImmune standard reverses, finds that jurisdi.......
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Patent Term Extensions: A Leap Frog of Sorts to Set Expiration Date
March 30, 2007
Post by Blog Staff
In a case before the Federal Circuit, the court affirmed the district court's decision that a patent term extension under the Hatch-Waxman Act, 35 U.S.C. § 156, may be applied to a patent subject to a terminal disclaimer under 35 U.S.C. § 253. The Federal Circuit found that the language of § 156 is unambiguous and fulfills a purpose unrelated to and not in conflict with that of § 253. As .......
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Be careful what you wish for: broad claims found invalid
March 22, 2007
Post by Blog Staff
In another case making a return trip to the Federal Circuit, the court held that under its broad claim construction decided in the first appeal, the asserted claims were invalid in two patents as not enabled and in two more as anticipated. In order to secure a finding of infringement, the patentee, Liebel-Flarsheim, argued for the broader claim construction in the first appeal, only to be unable to .......
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FTC charges various invention promotion companies with contempt
March 21, 2007
Post by Blog Staff
The Federal Trade Commission (FTC) has filed contempt charges against several companies and individuals who had been found to be swindling inventors under the guise of providing so-called "invention promotion services." In 1998, the U.S. District Court for the Eastern District of Virginia entered an order preventing these individuals and companies from fraudulenty promoting: the likelihoo.......
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Equivalent not tangentially related to amendment, doctrine of equivalents unavailable
March 20, 2007
Post by Blog Staff
In a case coming before the Federal Circuit for the second time, the court reversed a finding of infringement under the doctrine of equivalents because of prosecution history estoppel. The court rejected the patentee's argument that the amendment was only tangentially related to the equivalent, thus the Festo presumption of surrender of equivalents was not rebutted, and not infringement was found. Judge Rade.......
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First patent issues from USPTO's accelerated examination program
March 15, 2007
Post by Blog Staff
On Tuesday, Brother, the company best known for printers and copiers, received the first patent issued based on an application filed under the USPTO's accelerated examination program. The patent, number 7,188,939, relates to ink cartridges, and resulted from an application filed on September 29, 2006, just over a month after the accelerated examination procedure became available. Many are somewhat .......
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USPTO rescinds partial waiver of restriction requirements for nucleotide inventions
March 13, 2007
Post by Blog Staff
In a news release yesterday, the USPTO has rescinded its partial waiver of the requirements of 37 C.F.R. §§ 1.141 and 1.475 et seq. Under the former policy, a "reasonable number" of nucleotide inventions, typically up to ten, would be considered in a single application without a restriction requirement or issues regarding unity of invention. This requirement extends to all new and pending applications,.......
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Federal Circuit Addresses Claim Differentiation
March 13, 2007
Post by Blog Staff
The Federal Circuit further clarified the doctrine of claim differentiation in Anderson Corp. v. Fiber Composites, LLC. Andersen Corp. owns a number of patent relating to composite materials made from a mixture of polymer and wood fiber as well as patents that relate to structural parts made from those composite materials. Fiber Composites manufactures and sells deck railing and spindle products under the trade .......
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USPTO to institute pilot project to allow public comments on pending applications
March 05, 2007
Post by Blog Staff
The Washington Post today provided more detail about a pilot program previously mentioned in this post. Under the program, the USPTO would post pending patent applications that have become accessible to the public (such as after they have been published). Members of the public would then be able to comment on the applications, and even provide additional prior art that the patent office could consider during exa.......
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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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Comparison of Commercial Products not the vehicle to analyze equivalence
February 27, 2007
Post by Blog Staff
In a second appearance before the Federal Circuit, AquaTex again appealed a decision of the District Court that Techniche Solutions' Cooling Apparel did not infringe their U.S. Patent No. 6,371,977 for a protective multi-layered liquid retaining composition. The Federal Circuit had previously affirmed the lower court's finding of no literal infringement while remanding the case back to the District Court for furt.......
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Roundup of media coverage of Microsoft v. AT&T oral arguments, more to come for Microsoft?
February 23, 2007
Post by Blog Staff
Now that the oral arguments before the Supreme Court have passed, various media outlets have had the opportunity to weigh in on the arguments and offer their predictions as to how the case will come out. A sampling of this media coverage is below: Seattle Post Intelligencer USA Today Boston Globe Houston Chronicle Forbes Los Angeles Times BBC News Wa.......
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Interesting tidbits from today's oral argument in "Microsoft v. AT&T"
February 21, 2007
Post by Blog Staff
A few interesting exchanges took place in today's oral arguments before the Supreme Court in the Microsoft v. AT&T case. Click to read these portions of the arguments.The first related to jurisdiction. The parties had entered into a "high/low" settlement before the arguments, which essentially means that they have settled the case, but depending on how the Court comes out, the terms of the settlement will be dif.......
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Supreme Court to hear oral arguments regarding scope of US patent law
February 21, 2007
Post by Blog Staff
This morning the Supreme Court will hear oral argument in Microsoft Corp. v. AT&T Corp., a case about the potential extraterritorial reach of United States patent law. Specifically, the case deals with § 271(f)(1), which states that: (f)(1) Whoever without authority supplies or causes to be supplied in or from the United States all or a substantial portion of the components of.......
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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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Federal Circuit accepts rare interlocutory claim construction appeal
February 14, 2007
Post by Blog Staff
Today the Federal Circuit accepted an interlocutory appeal from a district court relating to patent claim construction. Because of the rarity of such a decision by the Federal Circuit, the court felt compelled to explain, in a precedential order, why it was accepting the order, and so members of the bar wouldn't get their hopes up that the court will be accepting more interlocutory appeals on claim construction i.......
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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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Dippin' Dots: brought to you by inequitable conduct, but not an antitrust violation
February 09, 2007
Post by Blog Staff
What do Dippin' Dots, the little beads of ice cream sold at fairs, stadiums, and malls, have to do with patent and antitrust law? For the Federal Circuit, they presented the "close case" where a patent holder can be found to have engaged in inequitable conduct during prosecution of the patent but is not liable for a Walker Process antitrust claim by an infringement defendant. This is possib.......
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Federal Circuit again dismisses patent case for lack of standing
January 30, 2007
Post by Blog Staff
The Federal Circuit has once again found the plaintiff in a patent infringement lawsuit did not have standing to bring its infringement claim. In order for a single plaintiff to have standing to assert infringement of a patent, that plaintiff must be the owner of the entire interest in the patent. As succinctly stated by the court: "Absent the voluntary joinder of all co-owners of the patent, a co-owner ac.......
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Federal jury finds H.264 video compression standard does not infringe patent
January 30, 2007
Post by Blog Staff
A federal jury in San Diego recently found that Broadcom, a company that produces chips used in everything from mobile phones to next-generation DVD players, does not infringe two patents held by Qualcomm on video compression technology. Why is this finding important? Qualcomm asserted its patents covered the H.264 video compression standard, which is the standard used by everything from DirecTV and Dish Network.......
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On this date: 1886
January 29, 2007
Post by Blog Staff
Karl Benz patents his "Motorwagen," the first automobile. Below are figures from the patent: The full patent (in German) is available here.....
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Walker Process antitrust claim reinstated: threats to sue competitor's customers sufficient
January 26, 2007
Post by Blog Staff
In Hydril Co. v. Grant Prideco, Inc., the Federal Circuit reinstated a Walker Process antitrust claim the lower court had dismissed. A Walker Process claim can arise when a patent holder, knowing that its patent was obtained through fraud, still attempts to enforce the patent. This type of claim is named after the Supreme Court case where it was first described as a valid claim under United States antitrust laws.......
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"Critical" ratio in claim does not get the benefit of the doctrine of equivalents
January 19, 2007
Post by Blog Staff
Today's lesson from the Federal Circuit: be careful not to make a claim limitation "critical," or you may lose the benefit of the doctrine of equivalents for that element. The court found that the claimed weight ratio of two drugs was critical in part because other claims recited a range of ratios, but the claim at issue simply recited a specific ratio, "about 1:5." The court stated that permitting infringement.......
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Roundup of media coverage of "MedImmune v. Genentech" decision
January 17, 2007
Post by Blog Staff
After last week's Supreme Court decision in MedImmune v. Genentech holding a patent licensee in good standing need not breach the license agreement in order to bring a claim that the patent is invalid, not infringed, or unenforceable, the media has begun to offer its perspective on the case. Below is a sampling of the media coverage, which basically is in agreement that the decision makes it easier to challen.......
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Limitations of a Claim Come from the Claim Language Itself
January 12, 2007
Post by Blog Staff
In E-Pass Technologies ("E-Pass") v. 3Com Corp., Palm Inc., palmOne, Inc. and Handspring, Inc. and Visa International Service Association and Visa U.S.A., Inc. and Palmsource, Inc. ("3Com"), the district court's holding of final summary judgment of non-infringement by 3Com was affirmed by the Federal Circuit. At issue was a patent ("the '311 patent") entitled "Method and Device for Simplifying th.......
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"Bare Licensee" Lacks Standing to Sue for Infringement
January 09, 2007
Post by Blog Staff
In Propat International Corp & David Find and Helene Glasser ("Propat") v. RPsot International Limted, Zafar Khan, Kenneth Barton and Terrance Tomkow ("Rpost"), the Federal Circuit affirmed the district court's decision that Propat lacked standing to sue for infringement and, on the cross-appeal, affirmed the district court's order denying RPost's request for an award of fees and costs. At issue wa.......
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Supreme Court: patent licensee need not cease royalty payments to challenge patent's vaildity
January 09, 2007
Post by Blog Staff
Today the Supreme Court decided MedImmune v. Genentech, a case about the power of federal courts to decide issues related to patent infringement and validity when one party to the dispute is currently licensing the patent from the other party. In an 8-1 decision, the Court held that a licensee need not stop paying royalties, thereby breaching the license agreement, in order for courts to have jurisdiction to con.......
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Speculation not required: IP litigation in 2006 produced $3.4 billion
January 04, 2007
Post by Blog Staff
Contrary to the statement in the previous post, apparently speculation is not required to determine the amount of money that changed hands as a result of intellectual property litigation in 2006. According to a survey [subscription required to view full story] by IP Law 360, intellectual property litigation resulted in a combined $3.4 billion in settlements and judgments in 2006. This total was down from 2005, p.......
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Patent cases in 2006 result in over $1 billion in damages awarded
January 03, 2007
Post by Blog Staff
According to a study released by Bloomberg, United States juries in patent cases awarded a total of over $1 billion in damages in cases that went to jury trial in 2006, the largest single year ever. The largest award went to Rambus, a California maker of computer memory chips, who won a $307 million verdict against South Korean rival Hynix Semiconductor in April, although the verdict was eventually reduced to $13.......
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Working until the end of the year, Federal Circuit addresses a Law School Exam Type Case
December 26, 2006
Post by Blog Staff
The Federal Circuit affirmed a Southern District of Indiana decision that generic drug makers IVAX Pharmaceuticals, Inc, Dr. Reddy's Labratories, Ltd. (DRL) and Teva Pharmaceuticals USA, Inc. infringed Eli Lilly and Company's (Lilly) U.S. Patent no. 5,229,382. The '382 Patent claims chemical compound olanzapine and the use of the compound to treat schizophrenia. The infringers attempted to show that the '382 was.......
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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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Federal Circuit Addresses On Sale Bar
December 18, 2006
Post by Blog Staff
In Plumtree Software, Inc. v. Datamize, LLC, the Federal Circuit Court of Appeals revisited the issue of determining when an invention is on sale within the meaning of 35 U.S.C. 102(b). A claimed invention is considered to be on sale under ? 102(b) if the invention is sold or offered for sale more than one year before the filing date of the patent application. If the applicant files a patent application after th.......
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UK considering peer review for patent system
December 15, 2006
Post by Blog Staff
After a review of Great Britain's intellectual property laws, the UK patent office is considering implementing a peer review procedure as part of its patent examining process. This was one of the recommendations of the Gowers Review of Intellectual Property, published on December 6. The idea is based in part on the Peer to Patent Project, described in a recent article by NYU law professor Beth Noveck in the Harv.......
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Federal Circuit considers intent required for inducing infringement en banc
December 14, 2006
Post by Blog Staff
The Federal Circuit resolved a perceived conflict in its case law regarding the necessary level of intent required for a defendant to be found liable for inducing infringement of a patent. The court considered one subsection of DSU Medical Corp. v. JMS Co. en banc to resolve the conflict. The court held that to prove the intent necessary for liability for inducing infringement, there must be "evide.......
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Nintendo hit with patent infringement lawsuit over "Wiimote"
December 12, 2006
Post by Blog Staff
Nintendo, makers of one of the hottest Christmas gifts this year, the Wii, is being sued for patent infringement. Interlink is suing the electronics giant over the "Wiimote," the common name for the Wii's controller. Below is the Wiimote and Figure 1 of Interlink's patent:Interlink's patent is directed toward a "trigger operated electronic device," and asserts that the Wiimote'.......
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The problem of marketing an idea: how much do you tell a prospective licensee?
December 06, 2006
Post by Blog Staff
Forbes has an interesting piece regarding marketing ideas, specifically way to protect an idea when pitching it to companies or ways to avoid "giving something away" in the process. It's written to be easily understood by non-lawyers, and has some good general suggestions. Notably absent from the list: using the line "I'd tell you, but then I'd have to kill you."....
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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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