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District court’s order dismissing the action with prejudice held to be nonfinal due to counterclaims

In a decision Thursday, the Federal Circuit affirmed a district court's denial of a preliminary injunction, and held it did not have jurisdiction over the remainder of the appeal because there was no final judgment. It was undisputed there was no infringement under the district court's claim construction of the single element at issue. After […]

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Federal Circuit invalidates Patent on Nobel-Prize winning invention after 50 years of prosecution

In an appeal from the Board of Patent Appeals and Interferences, the Federal Circuit affirmed the Board's rejection of the claims based upon obviousness-type double patenting over previously-granted related patents. The technical aspects of the invention are complex, but are overshadowed by the procedural aspects of this reexamination. The majority and dissenting opinions seem to […]

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Ninth Circuit: Pre-1923 published foreign works may still be copyrighted, depending on notice

In a decision last week, the Ninth Circuit affirmed a district court's grant of summary judgment in favor of the plaintiff in a copyright case. The works at issue, sculptures by the famed artist Renior and coauthored by one of his assistants, Richard Guino, were created between 1913 and 1917, and first published in France […]

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Effective date of new BPAI appeal rules delayed pending completion of OMB review

Gene Quinn at the PLI Patent Law Blog reports that the new BPAI appeal brief rules, which were scheduled to go into effect for all appeal briefs filed on or after tomorrow, December 10, will be delayed. The Office of Management and Budget is still considering the various submissions and comments regarding the rules, including […]

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Federal Circuit holds oral arguments in claim and continuation limit rules case

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 […]

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Substantial question regarding validity insufficient to defeat likelihood of success?

In a recent decision, the Federal Circuit affirmed a district court's grant of a preliminary injunction concerning the manufacture of an extended release formulation of an antibiotic. In a lengthy opinion, the Federal Circuit applied the Supreme Court's obvious-to-try logic from KSR to pharmaceutical patents. Notably, the court used the unpredictability of the pharmaceutical arts […]

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Ninth Circuit: Copyright owner’s ambiguous reservation of rights clarified with extrinsic evidence

In a recent decision, the Ninth Circuit reversed a district court's grant of summary judgment that a copyright holder did not have standing to sue for copyright, trademark, unfair competition, and related declaratory judgment claims. The case involved the film Gone in 60 Seconds, produced and directed in 1974 by H.B. "Toby" Halicki, and remade […]

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USPTO releases 2008 annual report

The USPTO today released its annual report for fiscal year 2008 (press release here), which ended September 30. Below is a comparison of a few key statistics with the 2007 stats: 2007 2008 change Average months to first action (patent) 25.3 25.6 +.3 Average months total pendency (patent) 31.9 32.2 +.3 Percent of applications filed […]

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USPTO to implement annual maintenance fee for patent practitioners

In today's Federal Register, the USPTO has indicated its implementation of a final rule to begin collecting annual "maintenance fees" from practitioners registered to practice before the USPTO. The notice states the fees "will recover the estimated average cost to the Office for the roster maintenance process, including the costs of operating the disciplinary system." […]

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Federal Circuit clarifies burdens of proof when priority to earlier application is contested

In a recent decision, the Federal Circuit affirmed a district court's determination that the asserted claims of a patent were not entitled to the effective filing date of the earliest application in a chain of four applications, and that as a result the claims were anticipated by intervening prior art. The court explained its recent […]

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