Intellectual Property Law
Two-Seventy-One Patent Blog 
Changing the world of patents and IP one blog at a time.
Post Frequency: 1.1/day Last Entry: November 18, 2009 at 00:47:00 Recent Entries: 385
By Peter Zura
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How Not to Invent a Patent Crisis
Posted on November 18, 2009F. Scott Kieff and Henry E. Smith authored a chapter in the book "Reacting to the Spending Spree: Policy Changes We Can Afford" which examines challenges the Obama administration faces today, and in the foreseeable future, and the administration?s planned responses...
ED Tex: Computerized Business Method Patent Fails Bilski Test Under 35 USC 101
Posted on November 17, 2009H&R Block Tax Services v. Jackson Hewitt Tax Services Inc., No. 6:08-cv-37 (E.D. Tex., Nov. 10, 2009)H&R Block sued Jackson Hewitt in February 2008 alleging infringement of patents relating to "a system and method for distributing payments to individuals and, more particularly, to a system and method for allocating a portion or all of an individual?s payment into a spending vehicle...
Bilski Movie Spoof
Posted on November 11, 2009For whatever reason, numerous spoofs have been made using the "Hitler rant" scene from Der Untergang ("Downfall"), ranging from US elections, the real estate market, ACORN, etc.Well, a spoof relating to patent law (and more specifically Bilski) has now been made, and it's quite funny, although at times you can't tell if the character playing Hitler is pro-patent or anti-patent ...
Bilski Oral Argument at the Supreme Court
Posted on November 10, 2009"If you're not confused, you're not paying attention." -- Tom PetersWell, the analysis has started to roll in, and one thing is certain about the Bilski case: almost no one believes that the claims on appeal will be held patentable. Not one Justice defended Bilski's method claim directed to hedging risks in commodities trading...
Kappos Blog Up and Running on the PTO Website
Posted on November 10, 2009To read the blog, click here.Also, the blog has been bookmarked on the 271 Blogroll, and may be conveniently accessed there too.Finally, the PTO appears to be warming up more to RSS feeds (or maybe I'm just getting around to noticing it) - the blog has a variety of RSS feeds that the public may use to follow the blog, as well as other news from the PTO site.
"On the Scene" Reports and Blogs from SCOTUS Bilski Arguments
Posted on November 09, 2009From Gene Quinn, IPWatchdog:Justice Ginsberg seemed to me to be the most openly hostile toward business methods, as well as the US patent system in general. She mentioned with a certain incredulous attitude the thought of patenting tax avoidance methods, estate planning, how to resist a corporate takeover and how to select a jury...
BPAI Gives Green Light to Nixing "Black Box" Software Patents Under 35 USC 112
Posted on November 04, 2009Ex Parte Rodriguez, Appeal 2008-000693, October 1, 2009 (Precedential Opinion)The application was directed to a computer-based system and method for configuring and verifying a "structurally variable and complex system." Exemplary claim 1 reads as follows:1...
Which Patent Office Does It Best? Survey Says: "The EPO"
Posted on November 04, 2009Joff Wild at the IAM Blog reported on an on-going benchmarking survey being conducted by IAM magazine and Thomson Reuters on various patent-related topics. Recently they asked questions to various professionals regarding patent quality at the larger patent offices...
Patent Officials: "Worst Is Yet To Come"
Posted on October 28, 2009From today's EurActiv.com:Gerard Torres of the United States Patent and Trademark Office (USPTO) said an analysis of patent filings at his organisation suggests there is usually a lag of about one year between a recession and its effect on patent filings...
USPTO Looks to Reduce "Stress" of Data Delivery, Seeks High-Volume Dissemination for Future
Posted on October 27, 2009Currently, the USPTO is looking to unload about 2 petabytes (i.e., 2000 terabytes) of patent-related data sets to an outside vendor in an effort to segregate public data from the examiner systems, and to make "virtually all public information from the USPTO accessible on the Internet...
Study Concludes U.S. Would Benefit From EPO-Style Opposition
Posted on October 26, 2009Professors Stuart J.H. Graham and Dietmar Harhoff published a paper recently that analyzed the potential effects of a post-grant review procedure (opposition) in the U.S. One particularly interesting aspect of their paper is the comparison of litigated U...
Arti Rai Heads to USPTO; More Patent Reform News
Posted on October 19, 2009While it has not yet been announced officially, Arti Rai appears to be on her way to becoming the USPTO's next Administrator for External Affairs. In this position Rai will oversee the Office of International Relations , the Office of Congressional Relations and Office of Enforcement...
Kappos to Speak at ACCA Meeting in Boston
Posted on October 16, 2009The Association of Corporate Counsel (ACC) announced this week that it will feature USPTO Director David Kappos at its 2009 Annual Meeting in Boston next week. Kappos will appear on an interactive panel discussion, ?Meet the USPTO Brass?, on Tuesday, October 20 at 9 am Eastern at the Hynes Convention Center...
Chinese Gov't to Fund Foreign Patent Filings for SMEs
Posted on October 13, 2009The Chinese Ministry of Finance (MOF) announced today that approximately 100 million yuan ($14.65 million) will be made available to small- and medium-sized enterprises (SMEs) applying for patents abroad. According to one report,SMEs, 95 percent of which are privately-owned, have played an increasingly important role in China's economy over the last several years...
Ranking Government Patents
Posted on October 13, 2009Government Agencies do not patent heavily, as they account for approximately 1% of all utility patenting per year. Many government agency patenting efforts are more for defensive purposes. However, governments contribute significantly to patenting innovations through funding and grants to both private and public sectors...
Examining Patent Examination
Posted on October 12, 2009Continuing their earlier work on patent examination and prosecution, professors Mark Lemley and Bhaven Sampat released a draft copy of their paper title "Examining Patent Examinations," which statistically analyzes patent applications filed in the month of January 2001 - the year PAIR was introduced - through April 2006...
USPTO Continuation Rules *DEAD* (More-or-Less)
Posted on October 08, 2009Today the USPTO announced that it has filed a joint motion with Plaintiff GlaxoSmithKline to dismiss the lawsuit related to continuation rules. From todays' PTO press release:Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos has signed a new Final Rule rescinding highly controversial regulations, proposed by the previous administration, that patent applicants felt unduly restricted their capacity to protect intellectual property...
First Action Interview Pilot Program Expanded by the USPTO
Posted on October 06, 2009Lat week the USPTO announced that it is expanding its First Action Interview Pilot Program, where an applicant is entitled to an interview with the patent examiner prior to the first office action on the merits in a new utility application.Previously, the program was limited to two computer-related technology areas, but now includes additional technology areas for a six-month period beginning on October 1, 2009...
USPTO Alert: Software Not Calculating National-Stage Patent Term Adjustments Correctly
Posted on October 01, 2009The following notice from the PTO is important for any overseas patent filer having recently allowed or issued patents stemming from § 371 applications:The USPTO is in the process of correcting an error in the computer program that it uses to calculate the patent term adjustment that affects patents issuing from international applications entering the national stage as to the United States pursuant to 35 U...
N.D. Illinois Issues Local Patent Rules
Posted on October 01, 2009From the Northern District of Illinois website:"The judges of the Northern District of Illinois have enacted the Court?s Local Patent Rules to guide the pretrial procedures in patent cases. The Local Patent Rules are effective as of October 1, 2009, and are available on the court?s web site, www...
Judge Michel on the Patent System
Posted on October 01, 2009On the nomination of Kappos as USPTO Director:I think the selection of David Kappos as the director of the USPTO is the clearest indication of the new administration's appreciation of IP issues . . . This appointment is salutary - Kappos is a highly experienced lawyer with a worldwide perspective and strong management, as well as legal and technical, skills...
"That's One Small Step . . ." Kappos Starts PTO Reform By Tweaking Examiner Productivity Metrics
Posted on October 01, 2009Yesterday, the PTO published a briefing paper that was provided to the USPTO examining corps (via POPA) on a proposal that would change the "count system" in the USPTO, which is universally blamed as being a large contributor to the current backlog. Under the current count system, examiners are paid using a modified GS schedule and earn more money through productivity "count" incentives...
Do Assignments Require Express Language to Cover CIP Patents?
Posted on September 29, 2009Gerber Scientific Int'l v. Satisloh AG, No. 3:07-CV-1382, (D. Conn., September 25, 2009, order) (P. Dorsey)Gerber obtained patents via a broadly-worded assignment conveying all "rights, title and interest" in "the inventions covered thereby and any division reissues and extensions thereof...
PTO Extends Comment Period for 101 Interim Examination Instructions
Posted on September 29, 2009After releasing the interim examination instructions for evaluating patent subject matter eligibility under 35 U.S.C. 101 on August 29, the USPTO issued a notice on Sept. 17 requesting comments from the public. Strangely, the PTO only provided 11 days for the public to submit all comments (Sept...
BPAI: 101 Rejections Shouldn't Be Based on Implication If Hardware is Disclosed
Posted on September 24, 2009Ex Parte Azuma, Appeal 2009-003902 (BPAI, September 14, 2009)The Appellant filed a patent application which claimed, among other things,?[a] computer program product for causing a computer to translate a text in a first language into a second language, the computer program product comprising: a computer usable medium having computer usable program code embodied therewith...
USPTO Seeking Comments on Interim Patentable Subjet Matter Guidelines
Posted on September 22, 2009Earlier, the USPTO issued interim examination instructions for evaluating patent subject matter eligibility under 35 U.S.C. 101 (Interim Patent Subject Matter Eligibility Examination Instructions) pending the Bilski decision. According to the USPTO, the Interim Patent Subject Matter Eligibility Examination Instructions will be used by USPTO personnel in their review of patent applications to determine whether the claims in a patent application are directed to patent eligible subject matter under 35 U...
WIPO Report 2009: Recession Hits Patent Filings (But Not So Much In Asia)
Posted on September 21, 2009WIPO held a two-day international symposium that concluded on September 18, 2009, where over 40 heads of IP offices participated in various discussions on IP issues. One primary focus of the event was to address the need to pool efforts at the international level to address the problem of backlogs in patent applications...
"And We're Off!" - Companies Turning To Congress on Patent Reform Issues
Posted on September 20, 2009While other issues (i.e., health reform, bailouts) continue to dominate the attention of Congress, it appears that patent reform is coming back on the radar, as a recent letter from 59 tech companies point out that, "[w]hile some versions of the legislation have been improved this Congress, additional improvements are in order to ensure that the end product avoids serious unintended consequences...
Fed. Cir.: Section 121 "Safe Harbor" Provision Does Not Apply to Continuations
Posted on September 17, 2009Amgen, Inc. v. F. Hoffman-La Roche, Ltd., No. 09-1020 (Sept. 15, 2009)Amgen prosecuted a series of patent applications relating to the production of the protein erythropoietin ("EPO") using recombinant DNA technology. All of the patents stemmed from a common specification disclosed in "the '298 application...
"Patent Troll Tracker" Trial Begins in E.D. Tex.
Posted on September 16, 2009Anyone who has followed the patent blogs since last year is familiar with the now-defunct "Patent Troll Tracker Blog", penned by Rick Frenkel, who, at the time, was in-house patent counsel for Cisco. When commenting on patent holding company ESN and it's lawsuit against Cisco, Frenkel alleged on the blog that the filing date for that patent suit was changed after ESN's local counsel "called the EDTX court clerk, and convinced him/her to change the docket to reflect an October 16 filing date, rather than the October 15 filing date...
Kappos Gives First Public Address at IPO Annual Meeting
Posted on September 15, 2009IPO has now concluded its annual meeting here in Chicago, where one of the many highlights was David Kappos serving as the "kick-off" speaker. In his speech (now posted on the USPTO site), Kappos discussed future plans and goals for the USPTO:- Reengineer the examiner count system - "we?re going to have a count system that helps everyone get to the point without requiring two or three RCEs...
Fed. Cir. Chops Back $358M Lucent Verdict; Gives Clinic on "Patent Damages Apportionment"
Posted on September 13, 2009Lucent Technologies, Inc. v. Gateway, Inc., No. 08-1485 (Sept. 11, 2009)Microsoft appealed the lower court's findings and jury verdict of $358M against Microsoft Corp. for use of its ?pop-up calendar? in Microsoft Outlook. With regard to validity, the court affirmed the lower court's finding that the patent-at-issue was not obvious...
Willfulness Can Still Be Pled Even If Preliminary Injunction Is Not Sought
Posted on September 09, 2009When the Federal Circuit issued its Seagate decision on willful infringement, the court stated the following on post-filing willfulness:It is certainly true that patent infringement is an ongoing offense that can continue after litigation has commenced...
PatentFreedom To Offer Subscription-Based Reexam Service to Attack NPE Patents
Posted on September 08, 2009Joff Wild from IAM Magazine attended the CIP Forum 2009 in Göteborg Sweden and provided an interesting report on a presentation given by Dan McCurdy, who is the chairman of PatentFreedom and CEO of Allied Security Trust. In his presentation, McCurdy announced the launch of a new initiative called "Integrity" which will essentially serve as an inter-partes reexam gadfly service against problematic patents owned by NPE's (aka "trolls")...
Gutierrez On Patent Harmonization
Posted on September 03, 2009Horacio Gutierrez, Corporate Vice President and Deputy General Counsel of Microsoft, posted the following on Microsoft's official blog on Tuesday:Big challenges certainly confront the global patent system: Escalating patent application backlogs; lengthening pendency periods; increasing costs of patent prosecution; dubious patent quality due to the global explosion of prior art and the time allowed to examine applications; and examination inefficiency due to duplication of work by multiple offices...
"Senior Management Changes" at the USPTO; Doll Retires
Posted on September 03, 2009Today the PTO announced that, after 35 years at the USPTO, Commissioner for Patents John Doll has intends to retire from the agency on October 2, 2009. As a result, David Kappos has nominated longtime USPTO executive Robert (?Bob?) Stoll to the position of Commissioner for Patents, and has named Margaret (?Peggy?) Focarino Deputy Commissioner for Patents...
Now It Begins? Litigation Rumors Surface Over Intellectual Ventures
Posted on September 01, 2009Intellectual Ventures (IV) has insisted for a long while that its accumulation of patents has nothing to do with patent litigation. In fact, the company has prided itself on not filing any lawsuits, despite the claim that its patent portfolio, comprising 27,000 patents, has brought in over $1B in licensing revenue...
One Method Feature in Apparatus Claim Destroys Validity
Posted on August 31, 2009Rembrandt Data Technologies, LP v. AOL LLC et al., No. 08-cv-1009 (E.D. Va., August 2, 2009, order) (B. Lee)Notorious NPE Rembrandt sued AOL and a host of other companies over patents relating to dial-up modem technology. At the summary judgment phase, defendants moved the court to find that one of the claims was invalid under section 112 on the grounds that it is "fatally flawed" for mixing a method and apparatus claim in relevant part, the claim reads:A data transmitting device for transmitting signals corresponding to an incoming stream of bits, comprising:first buffer means for ...
Want to Improve Patent Quality? Tweak the Incentives for Low-Quality Patents First
Posted on August 26, 2009One of the biggest issues facing patent prosecution today is the notion of "patent quality." Everyone wants "quality" patents, but no one can agree on how such patents may be defined, nor can anyone agree on the best way to achieve an appropriate level of quality across the board...
USPTO Publishes Interim Guidelines for Subject Matter Eligibility
Posted on August 25, 2009Recognizing that "the state of the law with respect to subject matter eligibility is in flux," the USPTO has published interim examination instructions while waiting for the Supreme Court to decide Bilski. The PTO has indicated that the instructions "supersede previous guidance on subject matter eligibility that conflicts with the Instructions, including MPEP 2106(IV), 2106...
Daily Shorts
Posted on August 24, 2009USPTO Vows to Cut Pendency in Half - Commerce Secretary Gary Locke affirms that patent pendency rates are "unacceptable." According to Locke, ""[w]e've heard the concerns of America's innovators, and I've directed the PTO to pursue an aggressive agenda to cut the time it takes to process patent applications in half, build the public's confidence and get things right...
USPTO Looking for Deputy Commissioner For Patent Examination Policy
Posted on August 24, 2009From the USAJobs Site:DEPUTY COMMISSIONER FOR PATENT EXAMINATION POLICYSALARY RANGE: 117,787.00 - 177,000.00 USD /yearOPEN PERIOD: Friday, August 21, 2009to Monday, September 21, 2009SERIES & GRADE: ES-1220-0/0POSITION INFORMATION: This is a Full-Time General position in the Senior Executive Service...
CAFC Affirms That Patent Ownership (and Standing) Can Vest Through Operation of Law
Posted on August 20, 2009Sky Technologies, LLC v. SAP AG, No. 2008-1606 (August 20, 2009)Sky's predecessor ("Ozro") executed an IP security agreement, where certain patents were used as collateral to secure loans. Ozro defaulted on the loan and the patents were foreclosed at public auction...
Employee Allegedly Assisted in Bilking $500k From the USPTO
Posted on August 20, 2009Michael H. Reid, A Fort Washington-area clergyman, has pleaded guilty to conspiring to steal nearly $500,000 from the U.S. Patent and Trademark Office, with possible help from a USPTO employee. From the Washington Examiner:According to court documents, the unnamed patent office employee was a financial analyst who had access to accounts in which customers deposited funds that later could be drawn down to pay application expenses...
Supreme Court Asked to Yank Obviousness From the Purview of Juries
Posted on August 18, 2009Medela AG v. Kinetic Concepts, Inc. (petition for a writ of certiorari)Question presented: Whether a person accused of patent infringement has a right to independent judicial, as distinct from lay jury, determination of whether an asserted patent claim satisfies the ?non-obvious subject matter? condition for patentability...
Revisiting the Presumption of Validity
Posted on August 17, 2009Of all the proposed reforms in patent law, one of the most controversial reform measures involves the level of deference courts should give to PTO decisions. More specifically, ever since the Federal Trade Commission's 2003 report (link) on innovation recommended abolishing the presumption of validity of issued patents, a slow but steady measure of support has grown since then (e...
BPAI: Applicants Must Do More Than Recite Missing Features To Traverse Prior Art
Posted on August 12, 2009Ex Parte Belinne, No. 2009-004693 (10 August 2009) (Informative Opinion)The appeal involved an invention relating to activating services when configuring a "build to order" system. The Examiner rejected the claims as anticipated over a single prior art reference ("Lee"), and provided citations to allegedly disclosed features...
Willful Infringement and Injunctions at the E.D. Tex.
Posted on August 12, 2009i4i Ltd. v. Microsoft, No. 6:07CV113 (E.D. Tex., August 11, 2009, order) (L. Davis)In May, a jury found that Microsoft willfully infringed i4i's patent relating to the processing of XML documents with custon XML elements, and awarded i4i $200M in damages...
Fed. Cir. Limits Admissibility of Evidence Withheld During Examination at the PTO
Posted on August 11, 2009Hyatt v. Acting Director, Patent and Trademark Office, No. 07-1066, August 11, 2009Hyatt appealed a decision from the District Court for the District of Columbia that upheld the PTO's rejection of Hyatt's patent as not being supported by adequate written description...
Is The CAFC Pro-Patent? Maybe Not, Claims Study
Posted on August 07, 2009Manasseh Zechariah, economist and assistant professor at Johnson & Wales University College of Business, decided to take groups of decisions from the CAFC, and run variables related to those decisions through different theoretical models to see what came out...
CAFC (Really) Tightens Pleading Requirements for Inequitable Conduct
Posted on August 05, 2009Exergen, Corp. v. Wal Mart Stores, Inc., No. 06-1491, August 4, 2009Defendant SAAT appealed the denial of their motion for judgment as a matter of law ("JMOL") after a jury found that SAAT willfully infringed. SAAT also appealed the denial of its motion for leave to amend its answer to allege that the asserted patents are unenforceable due to inequitable conduct...
CAFC Pushes Back on PTO Actions
Posted on August 04, 2009In Re McNeil-PPC, Inc., 2008-1546, July 31, 2009McNeil owns a patent claiming a tampon for feminine hygiene with a solid fiber core in which the core is denser than the radially projecting "ribs" and the ribs are narrower at their bases than their distal ends...
Kappos onfirmation Hearing Set for July 29
Posted on July 23, 2009The Senate Committee on the Judiciary has scheduled a hearing on nominations for Wednesday, July 29, 2009 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.A live webcast of the hearings will be available here (link)Also, Senate Judiciary Chairman Patrick Leahy has released the committee's completed questionnaire for David Kappos, which reportedly has some interesting information, according to Tech Daily Dose:Kappos details his background, professional affiliations and pro bono work as well as his financials...
The Vendor-Client Relationship
Posted on July 22, 2009If you haven't seen it yet, it's only a matter of time:
Time To Do Away With "Broadest Reasonable Interpretation?" Paper Says "Yes!"
Posted on July 22, 2009Dawn-Marie Bey and Christopher Anthony Cotropia published a paper recently titled "The Unreasonableness of the Patent Office's 'Broadest Reasonable Interpretation' Standard," and it's a very interesting look at the PTO's claim interpretation methodology...
Study: Post-Grant Review Could Increase PTO Pendency by 25%
Posted on July 21, 2009Professor Scott Shane of Case Western Reserve University, released analysis of the impact of proposed post-grant review and expanded inter partes reexamination of U.S. patents. According to Shane, the proposed changes will have the following likely effects:Increase the length of patent pendency...
Doors Are Open: USPTO Officially Launches "e-Office Action" Program
Posted on July 21, 2009From the USPTO:The Commerce Department?s United States Patent and Trademark Office (USPTO) announced today the implementation of the e-Office Action program following a successful pilot project. Under the program, patent applicants receive an e-mail notification of office communications instead of paper mailings...
USPTO Publishes Latest Reexamination Statistics
Posted on July 20, 2009The USPTO published the most recent statistics on inter-partes and ex-parte reexaminations, and both reports show that reexaminations continue to grow in popularity, and continue to be effective weapons for challenging validity.Ex-Parte ReexaminationEx-parte filings continue to grow - 2009 is on pace to almost double the number of filings from 5 years ago:2002 - 274 filings2003 - 392 filings2004 - 441 filings2005 - 524 filings2006 - 511 filings2007 - 643 filings2008 - 680 filings2009 - 481 filings (through 6/09)Of these filings, 31% are known to be in litigation...
District Court Awards almost $2.5M In Sanctions For NPE Asserting Unenforceable Patents
Posted on July 20, 2009Nilssen, et al v. Wal-Mart Stores Inc, et al, No. 1-04-cv-05363 (N.D. Il., June 30, 2009, order) (R. Gettleman)Plaintiff Ole K. Nilssen held a number of patents on compact fluorescent lamps ("CFLs") and exclusively licensed them to his not-for-profit Cayman Islands foundation, plaintiff Geo Foundation, Ltd...
"Patent Marking" Case Against Solo Cup Dismissed in ED Va.
Posted on July 08, 2009Matther A. Pequignot v. Solo Cup Co., No. 1:07-cv-897 (E.D. Va., July 2, 2009, order) (L. Brinkema) Washington DC patent attorney Matthew Pequignot filed at least two lawsuits against Solo Cup and Gillette (P&G) alleging that the defendants were engaging in "false marking" of their products...
Appeals "Skyrocket" at the USPTO
Posted on July 06, 2009Law.com issued an article today confirming what most practitioners have known for a while - patent examination has become a stingier process, resulting in more appeals at the BPAI. Over the past year, the PTO reports that appeals have spiked 70 percent...
Fed. Circuit Grants En Banc Review in Tafas v. Doll
Posted on July 06, 2009The Federal Circuit has granted Tafas & GSK?s petition for a rehearing en banc, which opens the door on the PTO having the ability to restrict the number of continuation applications and claims used in an application. Appellant?s briefs should come due around August 6, and the opposing briefs around August 26...
USPTO News Shorts
Posted on July 06, 2009USPTO published final rules on PCT procedure - The USPTO has revised the rules of practice in 37 CFR 1.485 on how applicants may make amendments to the claims in an international application. Under the current PCT Regulations, applicants are required to submit replacement pages for only those pages which contain changes, where under the revised PCT Regulations applicants will be required to submit a complete set of the claims when amending any of the claims...
USPTO Posts Selected Material on Bilski
Posted on June 30, 2009The PTO recently announced that "in view of the high level of interest sparked by the case, the USPTO is posting selected court documents from Bilski v. Doll on this Web site."Currently the site only contains PTO material related to the Federal Circuit Panel Proceedings, Federal Circuit En Banc Proceedings, and Supreme Court Briefs...
ED Tex: Attorney Does Not Have to "Do the PTO's Job For Them" To Negate Inequitable Conduct
Posted on June 30, 2009Tyco Healthcare Group LP v. Applied Medical Resources Corp., No. 9:06-CV-151 (E.D. Tex., June 26, 2009 Order) (Giblin, K.)Tyco sued Applied Medical for patent infringement. One of the asserted patents was previously subjected to an interference (when the patent was at an application stage), where Tyco argued that the other patent was invalid over a prior art reference ("Yoon")...
Thomson Reuters Publishes "Innovation Hot Spots"
Posted on June 29, 2009Today, the IP Solutions business of Thomson Reuters published a research paper, titled "Innovation Hot Spots: Mining Patent Data for Tomorrow's Breakthroughs," which tracks unique inventions published in patent applications and granted patents from 2003, 2008 and 2009 to identify technology areas showing the sharpest growth over the last five years...
USPTO Bailout Bill Introduced
Posted on June 25, 2009From National Journal's "Tech Daily Dose":Senate Judiciary Chairman Patrick Leahy and ranking member Jeff Sessions came to the rescue of the Patent and Trademark Office on Wednesday night when they introduced a bill that will allow the agency to use funds designated for its trademark portfolio to be used to address its growing backlog of patent applications...
NPEs Speak at the IP Business Congress 2009
Posted on June 25, 2009On Tuesday at the IP Business Congress 2009, a breakout session was conducted on NPE's titled "Meeting the NPE Challenge" where NPE business models were discussed. On the plaintiff side, members of Acacia Technologies and Altitude Capital Partners presented their views on the NPE debate, and on the defendant side was RPX Corp...
Report From IP Business Conference 2009
Posted on June 23, 2009Today, IAM kicked off the IP Business Congress at the Four Seasons Hotel in Chicago. This morning?s sessions were quite packed, with an estimated 370+ people from various sectors of technology gathering to talk about IP valuation, prosecution and enforcement...
PPAC Meeting Sets the Stage for Patent Quality Improvements
Posted on June 18, 2009The Patent Public Advisory Committee (PPAC) held a Public Session today (link) at the PTO Headquarters to discuss various issues relating to the USPTO and patent practice. One of the big topics during the meeting was patent quality, which was addressed by Marc Adler(member, Andrew Hirshfeld, Acting Deputy Commissioner for Patent Examination Policy)...
David Kappos - The Next USPTO Director
Posted on June 18, 2009Comment Of Senator Patrick Leahy (D-Vt.), Chairman, Senate Judiciary Committee, On The Designation Of David J. Kappos To Be Undersecretary Of Commerce For Intellectual Property And Director Of The U.S. Patent And Trademark Office June 18, 2009 ?I am pleased that the President has announced his intent nominate David J...
USPTO Website Undergoing a Facelift
Posted on June 16, 2009From the USPTO's new "Beta" website:The USPTO is pleased to announce the beta test release of its new Web site. The new site has been redesigned to improve the look and feel, as well as to enhance the user experience with improved navigation. The USPTO's goal is to make the Web site technologically up-to-date, user-friendly, and responsive to customer feedback...
Bilski at the BPAI - What a Mess (Part 1)
Posted on June 16, 2009SCOTUS review notwithstanding, the process of determining patentable subject matter after Bilski has become a weird, metaphysical endeavor. It has gotten to the point that a given claim may receive 4 different interpretations from 4 different people, and each of them could be arguably correct...
"Patent Reform: Damages" Audio Session
Posted on June 15, 2009UCLA Law School professor Doug Lichtman continues his excellent "IP Colloquium" audio series with a new installment titled "Patent Reform: Damages." The show covers the question of how, if at all, Congress should change the way courts calculate patent damages...
IAM IP Business Congress Converges on Chicago June 21-23
Posted on June 15, 2009Next week, hundreds of patent practitioners, analysts and executives - including Chief IP Officers from Fortune 500 companies, heads of IP at other major companies, global IP thought leaders and senior policy makers - are gathering in Chicago for two days of top-level discussion at the "IP Business Congress 2009...
Distric Court Warns that "Patentee's Time For Trolling" Will End Without More Definite Infringement Contention
Posted on June 11, 2009Diagnostis Systems Corp. v. Symantec Corp. et al., SACV 06-1211 DOC (C.D. Cal., June 5, 2009 Order) (Nakazato, A.)DSC is a wholly-owned subsidiary of Acacia Research Corporation (?Acacia?), and both entities are in the business of acquiring, licensing, and enforcing patented technologies...
Congress Introduces IP Protections for Foreign Climate Change Agreements
Posted on June 11, 2009Lat night the House voted overwhelmingly to establish new U.S. policy that will oppose any global climate change treaty that weakens the IP rights of American "green technology." The measure is part of the Foreign Relations Authorization Act (H.R.2410) and reads, in part, as follows:SEC...
Looking at the Most-Litigated Patents
Posted on June 10, 2009John Allison, Mark Lemley & Joshua Walker continue to mine information from Stanford's IP Litigation Clearinghouse and have come up with a new study titled "Extreme Value or Trolls on Top? The Characteristics of the Most-Litigated Patents." The authors sifted through mounds of data to identify the patents litigated most frequently between 2000 and 2007, and compare those patents to a control set of patents that have been litigated only once in that period...
The Quest For Managerial Control at the USPTO - Is Fee Regulation the Answer?
Posted on June 08, 2009Despite numerous efforts to improve the U.S. patenting process, the PTO is largely seen as a struggling agency that continues to sink deeper into a managerial hole. Congress explicitly gave the PTO rulemaking authority under section 2(b)(2) of the Patent Act, but, as recently demonstrated in the Tafas v...
Tafas, GSK File Petitions For En Banc at the CAFC
Posted on June 04, 2009I'm on travel this week, and have had very little time to post, so apologies in advance for the brevity . . .Tafas, GSK filed petitions for en banc rehearing. From the Tafas brief, the questions presented :1. Does the standard "foreclose effective opportunity to present patent applications for examination" or "effectively foreclose[] [applicants] from obtaining patent rights to which they are entitled" comport with United States Supreme Court and Federal Circuit precedent classifying "substantive" rules as those which cause a change in existing law or policy affecting individual rights and obligations?2...
SCOTUS Grants Certiorari for Bilski
Posted on June 01, 2009Bilski v. Doll, No. 08-964 (Supreme Court 2009)CNNMoney.com: "US Supreme Court To Hear Case On Patents For Business Methods" (link)Bloomberg.com: "Business-Method Patents Will Get U.S. Supreme Court Scrutiny" (link)Legal Times Blog: "Supreme Court Will Hear Bilski Patent Case" (link)See Patently-O listing of briefings, arguments, etc...
Waiting on the Naming of USPTO Director
Posted on June 01, 2009Back on April 30, reports started to surface that Secretary of Commerce Gary Locke has announced that he has chosen the next Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office, and that the chosen candidate was "being vetted...
Process Requiring Machine Doesn't Necessarily Satisfy 35 USC 101
Posted on May 29, 2009Every Penny Counts, Inc. v. Bank of America Corp., 2-07-cv-00042 (M.D. Fla. May 27, 2009, Order) (Magnuson, J.)Plaintiff Every Penny Counts (?EPC?) received patent number 6,112,191 (the ?191 patent?) in 2000. This patent claims a system whereby consumers can save and/or donate a portion of a credit or debit transaction...
Ranking the Top Patent/IP Blogs
Posted on May 29, 2009Gene Quinn over at IP Watchdog is ranking the top patent/IP blogs. Feel free to pop over and let Gene know (1) your favorite patent/IP blog, and (2) other patent/IP blogs you read. Voting will continue through the end of June 2009, where the results will be tabulated and reported sometime at the beginning of July 2009...
Injury Must Be ?Concrete and Particularized? For Standing In False Patent Marking Action
Posted on May 27, 2009Stauffer v. Brooks Brothers Inc., 08-cv-10369 (SDNY, May 14, 2009)35 U.S.C. § 292 prohibits anyone from marking an ?unpatented article? with words ?importing that the same is patented, for the purpose of deceiving the public.? Additionally, section 292 further provides that ?any person? may sue for damages, and if damages are imposedunder the statute ("not more than $500 for every such offense?), the person suing is to receive one-half and the United States is to receive the other half...
. . . Try and Try Again - Congress Makes Another Attempt to Ban Tax Strategy Patents
Posted on May 26, 2009Representatives Rick Boucher (D - Va.), and Bob Goodlatte (R - Va.) introduced legislation last week aimed at prohibiting patents on "tax planning methods." Introduced on May 21, 2009, H.R. 2584 seeks to amend title 35 of the U.S.C. by adding the following:(1) UNPATENTABLE SUBJECT MATTER...
Will the PTO Continuation Rules Find Support at the Supreme Court? Some Are Saying "Absolutely"
Posted on May 21, 2009Donald Zuhn from the Patent Docs Blog is reporting on various events from this year's BIO Convention. On Wednesday, BIO held session on "A Model Patent Office for the Future -- Promoting and Protecting Investments in Innovation," where various leaders in the patent community discussed issues pertaining to the improving the PTO...
CAFC Rules En Banc: Terms in Product-by-Process Claims are Limitations in Determining Infringement
Posted on May 19, 2009Abbott Laboratories v. Sandoz, Inc., (Fed. Cir. 2009) (en banc in part) 07-1400While considering an appeal of a claim construction ruling from the Eastern District of Virginia, the court suddenly found itself faced with a dilemma regarding the construction of certain product-by-process claims: the plaintiff argued that the district court erred in construing the process steps of the claims by using rule in Atlantic Thermoplastics, 970 F...
Short Note on Patentability of Product-by-Process Claims
Posted on May 19, 2009The CAFC's ruling in Abbott clarified that infringement of a product-by-process claim will occur only when a product meets all of the process limitations recited in the claim. One would presume that the corollary - patentability - would require similar consideration...
Judge Michel Speaks About "Junk Patents", Damages, Trolls, and the PTO
Posted on May 15, 2009Last December, Chief Circuit Judge Michel gave the keynote address at the FTC hearings on "The Evolving IP Marketplace", where Judge Michel addressed the state of patent law and patent reform. Frankly, it's one of the most sober and rational patent reform speeches in recent years, and I thought it would be worthwhile to help distribute a transcript of the speech...
District Court Lets 24% Royalty Stand In Damage Calculations
Posted on May 14, 2009Wyers v. Master Lock Co., 1-06-cv-00619 (COD May 12, 2009, Order)Plaintiff successfully asserted that Master Lock infringed four patents relating to barbell-shaped locks with removable sleeves, and the jury awarded $5.35M in damages as a reasonable royalty...
Everything You Ever Wanted to Know About the Current State of Patents and Patent Law
Posted on May 13, 2009Imagine a "who's who" list of patent scholars, practitioners, in-house counsel, government officials, IP brokers and policy makers - who were all placed in a single room with a microphone for 6 full days to speak individually about their experiences and opinions on various aspects of patent law...
Defensive Patenting and Deferred Examinaton: Lessons From the German Patent Office
Posted on May 12, 2009There has been a renewed interest in deferred examination for the USPTO, primarily because (a) it appears to enjoy some success overseas, and (b) the current backlog of pending cases at the PTO are at unsustainable levels. As many institutional patent filers recognize, a fair percentage of yearly filings are almost exclusively defensive, i...
USPTO Reform at WIPO: New PCT Procedures Being Proposed for "PCT II"
Posted on May 11, 2009At the May 2008 session of the Working Group, the International Bureau (IB) presented a paper titled "Enhancing the Value of International Search and Preliminary Examination Under the PCT" (PCT/WG/1/3), where the paper addressed shortcomings of the PCT to exploit work product of various offices...
Video: Intel, Startups Debate Patent Reform Efforts
Posted on May 07, 2009Recently, Intel Corp.'s chief patent counsel David Simon and entrepreneur Steve Perlman faced off in a debate on patent reform yesterday, where their views showed a wide gap between the opinions of big corporations and startups over pending patent legislation, and especially apportionment of damages and first-to-file...
BPAI Precedential Opinion: Software "Means" Must Disclose Algorithmic Structure
Posted on May 06, 2009Ex Parte Catlin, Appeal 2007-3072 (BPAI, February 3, 2009) Precedential OpinionThe claimed invention was directed to a method for implementing an on-line incentive system at a merchant's web site. The application contained a means-plus-function recitation in the claims:1...
Patent Valuation Practices of Europe's Top 500
Posted on May 05, 2009Martin A. Bader and Frauke Rüther, on behalf of PriceWaterhouseCoopers, surveyed the top 500 patent applicants of the EPO to determine valuation procedures and methods. It has been known for a while now that the management of intangible assets is an important element of strategic corporate management that is constantly increasing in significance...
BPAI Tightens Use of Declarations in Overcoming Obviousness Rejections
Posted on May 04, 2009Ex Parte Jellá, Appeal No. 2008- 1619 (BPAI, November 3, 2008), Precedential OpinionThe Appellant's claimed invention relates to raised panel door sections for overhead garage doors. Claim 1, reproduced below, is representative of the subject matter on appeal...
Dunes CLE: Patent Drafting and Prosecution after KSR, McKesson and Bilski
Posted on April 30, 2009I will be speaking at Dunes CLE on May 1 (Friday) in Las Vegas regarding "McKesson and the Future of Inequitable Conduct." I will be joined by Robert Ryan Morishita, founder of the Morishita Law Firm, Wesley L. Austin, a shareholder with Austin Rapp & Hardman, and Ryan A...
Limelight Uses Muniauction Decision to Escape Infringement of Internet Patent
Posted on April 28, 2009Akamai Technologies, Inc. v. Limelight Networks, No. 06-11109 (D. Mass., April 24, 2009)A jury awarded Akamai and MIT $45.5M, finding that Limelight infringed a patent relating to a content delivery network ("CDN"), where page objects are replicated among a distributed set of content delivery service provider servers and end user requests for those objects are redirected to a particular content server...
Book Review: "Burning the Ships"
Posted on April 27, 2009Marshal Phelps was best known for his 28-year career at IBM Corp., where he served as vice president for IP and licensing and built the now-legendary $2B a year licensing program. In 2003, Phelps was recruited to join Microsoft to help transform the company's IP into an "open innovation" platform...
BusinessWeek: Cities Yielding the Most Valuable U.S. Patents
Posted on April 23, 2009Ocean Tomo, which is in the business of valuing patents, was asked by Business Week to cross reference their patent valuation database with the addresses of the first-listed patent holders to determine "the world's most inventive cities." Here are the results:(1) San Francisco/Silicon Valley(2) Tokyo(3) Boston(4) Los Angeles(5) San Diego(6) Minneapolis/St...
Inter Partes Reexams Deflating in the E.D. Tex.
Posted on April 23, 2009BarTex Research LLC v. Fedex Corp., 6:07-CV-385 (E.D. Tex., April 20, 2009)BarTex sued FedEx in August 2007 alleging infringement of a Scott Harris patent directed to a "bar code data entry device." While the suit was pending, pleadings were filed in an Illinois litigation stating that the Fish & Richardson law firm (Harris?s former employer) had asserted ownership over some of Harris?s patents, including the patent-in-suit...
Another District Court Gets Impatient With PTO Delays
Posted on April 22, 2009Field Logic Archery, LLC v. G5 Outdoors, LLC, No. 06-1724 (D. Min., April 20, 2009)From Magistrate Judge Noel's report and recommendation:The above referenced case was filed on May 9, 2006. After it had been pending for over a year, the parties stipulated to a stay pending the resolution of a "Reissue Application," that had been filed with the United States Patent and Trademark Office (USPTO) in June of 2007...
Who Licenses Out Patents and Why - Business Survey From EU, Japan
Posted on April 20, 2009Maria Pluvia Zuniga and Dominique Guellec from the Organization for Economic Co-Operation and Development (OECD) have published a working paper titled "Who Licenses Out Patents and Why? Lessons From a Business Survey", which looks at the results of a business survey carried out on the licensing-out of patents...
E.D. Tex. Losing Confidence in PTO's Inter Partes Reexamination Program
Posted on April 16, 2009ROY-G-BIV Corp. v. FANUC Ltd. et al., No. 2:07-CV-418 (E.D. Tex., April 14, 2009)Plaintiff ("RGB") filed suit on September 19, 2007 alleging infringement of patents relating to motion control methods and systems that include software for communicating with and controlling different motion control devices...
Cornell Damage Apportionment Making Way Through Courts
Posted on April 15, 2009The other week in Cornell University v. Hewlett-Packard, Judge Randall, sitting by designation in the Northern District of New York, chopped Cornell's damage award from $184M to $54M, stating that "Cornell simply stepped one rung down the Hewlett- Packard revenue ladder from servers and workstations to the next most expensive processor incorporating product without offering any evidence to show a connection between consumer demand for that product and the patented invention"(see more here)...
Deloitte Releases Study on Effects of Follow-on Biologics Legislation
Posted on April 14, 2009Recently, Congress proposed legislation allowing the FDA to approve generic versions of biotechnology drugs after a shortened period of brand-name patent exclusivity. While legislators tout the obvious benefits of such a move, Jim Hollingshead from Deloitte digs deeper to find some unintended consequences:? Make Hay" effect: Once a drug is introduced to the market, an innovator has a short time to recoup its development costs -- upwards of $1 billion over 12 years -- before a competitor enters the market...
Financial Woes Continue to Deepen at the USPTO
Posted on April 14, 2009Earlier, this blog and others picked up on comments from PTO officials indicating that decreased rates of patent filings and allowances, coupled with the current economic morass, is translating into a toxic mix for the financial health of the USPTO.Commerce Secretary Gary Locke is preparing to name the PTO Director in the coming days, and the odds-on favorites for the position are (1) Q...
CAFC: Subsequent Developments OK For Double-Patenting Distinction
Posted on April 13, 2009Takeda Pharmaceutical Co., Ltd. v. Doll, 2008-1131, April 10, 2009 (link)Takeda originally filed a patent application disclosing certain cephem compounds and the process for making those compounds in Japan in 1974, and in the U.S. in 1975. Since that time, Takeda filed a series of continuation applications (filed under the "old", pre-June 1995 regime) in the PTO, many of which issued as patents...
The "Less Familiar" Voices on Patent Reform
Posted on April 13, 2009Last month, the U.S. Business and Industry Council Educational Foundation sent a letter to Congress opposing patent reform. Signatories to the letter included organizations such as Capitol Hill Prayer Alert, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Minuteman Civil Defense Corps...
Thursday Shorts
Posted on April 09, 2009How Low is Too Low for Patent Prosecution? Last week Gene Quinn published a post titled "Open Source Race to Zero May Destroy Software Industry", where he asked the question "does anyone really think that paying $1,400 for an allegedly complete patent application is a wise business decision?" Needless to say, the post generated a flurry of controversy...
ND Illinois One Step Closer To Adopting Patent Rules
Posted on April 08, 2009The judges of the Northern District of Illinois have issued for public comment proposed local rules to guide the pretrial procedures on patent cases. The proposed local patent rules were drafted by a committee of experienced lawyers, who are affiliated with the Intellectual Property Law Association of Chicago (IPLAC), and four district judges...
Study: Restricting Patent Challenges May Ease Royalty Inflation
Posted on April 07, 2009Removing "bad" patents is considered a public good, so federal law provides broad challenge right that allow anyone from the public to challenge a patent's validity almost any time. But federal law goes further than just making patent challenges easy; it also makes them nearly impossible to contract away...
Patent Reform In Action: Judge Rader Provides Damage Apportionment Clinic In District Court Case
Posted on April 02, 2009Cornell University v. Hewlett-Packard, 01-CV-1974 (N.D.N.Y., March 30, 2009)Sitting by designation, Judge Rader considered HP's motion for JMOL seeking to reduce a royalty base to include only the earnings attributed to the infringing technology.The jury found that HP infringed U...
Amendments to Patent Reform Bill To Be Submitted Tomorrow
Posted on April 01, 2009After yesterday's announcement of "very significant" changes to the patent reform bill, copies of the proposed amendments have started to float about the blogosphere (courtesy of Hal Wegner).Well, here is a peek at the language in the amendments, starting with damages:§ 284...
Bilski Beatdown: Holders of Business Method Patents May Be Holding "Worthless Stock"
Posted on March 31, 2009Cybersource Corp. v. Retail Decisions, Inc., N.D. Ca. (04-03268) March 26, 2009 (from Docket Navigator)Cybersource asserted U.S. Patent 6,029,154 directed to a system and method for detecting fraud in a credit card transaction between a consumer and a merchant over the Internet...
Economic Slowdown Hitting Patent Brokers Hard: Post Mortem From Ocean Tomo's Spring Auction
Posted on March 30, 2009Last Friday, Ocean Tomo conducted one of their high-profile intellectual property auctions at the Ritz-Carlton in San Francisco. Normally, bidding activity is relatively brisk, but this year expectations were set lower in light of the current economic conditions (as much as a 50% drop was anticipated)...
Failure To Correct Significance of Submitted Prior Art Leads to Inequitable Conduct
Posted on March 25, 2009Golden Hour Data Systems, Inc. v. emsCharts, E.D. Tex. (2:06 CV 381), March 23, 2009It has now officially become "inequitable conduct week" at the 271 Blog. Here, a patent application, being handled by a patent agent/law student under the supervision of a partner, discussed a prior art system ("AeroMed") in the "background of the invention" section...
A-Cold Wind Blowing: Inequitable Conduct Part 1
Posted on March 23, 2009. . . mistakes and omissions will inevitably occur, and that the courts will be asked to determine if there was inequitable conduct.- Judge Prost, Tafas v. Doll (2008-1352)Larson Manufacturing Co. v. Aluminart Products Ltd. (2008-1096) March 18, 2009Larson filed a continuation application just prior to the grant of its patent...
A-Cold Wind Blowing: Inequitable Conduct Part 2
Posted on March 23, 2009Synovis Life Technologies Inc. v. W.L. Gore & Associates, Inc., D. Mn. (07-CV-1396) (order March 19, 2009)During litigation, Defendant asserted that Plaintiff made affirmative misrepresentations to the PTO in the application leading up to the patent-in-suit...
CAFC Throws a Bone to the PTO in Tafas Case: Now What?
Posted on March 22, 2009By now, most everyone has heard that the CAFC issued its opinion in Tafas v. Doll and upheld the PTO's authority to promulgate many (but not all) of the rules. After much hand-waving over what PTO rules are to be considered "procedural" versus "substantive", the CAFC essentially treated the rules as a substantive due process issue over a non-fundamental right...
USPTO Seeks Nominations for Public Advisory Committees
Posted on March 19, 2009Under the Patent and Trademark Office Efficiency Act (106?113), two Public Advisory Committees were established (one for Patents, one for Trademarks) to review the policies, goals, performance, budget and user fees of the USPTO, and to advise the Director on these mattersDue to the expiration of current members? terms, the USPTO is requesting nominations for three members to the Patent Public Advisory Committee (PPAC) and two members to the Trademark Public Advisory Committee (TPAC) for terms of three years that begin from date ofappointment...
U.S. Court Report Shows Patent Litigation Continues to Be Flat
Posted on March 19, 2009The Judicial Business of the U.S. Courts released its annual report this week on the business of the Federal Judiciary for the fiscal year ending September 30, 2008. Overall, the report provides statistical data on the work of the Federal Judiciary, compares data for the current year to that for previous fiscal years, and, wherever possible, explains why increases or decreases occurred in judicial caseload...
It's Official: More than 1/2 of Examined Patent Applications Rejected at Top 3 Patent Offices
Posted on March 18, 2009THe EPO issued a press release yesterday, announcing that filings for 2008 dropped by 3.6%. More importantly, the EPO went on to point out that the grant rate for European patents dropped for the first time to less than 50%. More specifically, the grant rate for 2008 was 49...
Doll Confirms that Budget Crisis Is Affecting USPTO
Posted on March 17, 2009Being a fee-funded government entity, it should be no surprise that the PTO would be affected by the recent economic meltdown. But by how much? In a recent interview, acting USPTO Director John Doll stated that the PTO's current projections show that patent filings should drop by a mere 2% in 2009...
USPTO Warns Applicants Not to File PCT's With Search Authorities of Limited Competence
Posted on March 16, 2009When international applications are filed, they are forwarded by the Receiving Office (RO) to the International Search Authority (ISA) selected by applicant.On occasion, specific ISA's have limited their competencies for specific applications. For instance, the EPO will not act as an ISA for applications with one or more claims directed to a business method...
USPTO Extends Comment Period For Deferred Examination
Posted on March 10, 2009From todays' Federal Register:The USPTO conducted a roundtable to determine whether or not there is support in the patent community and/or the public sector for the adoption of some type of deferral of examination . . . The USPTO also invited written comments by any member of the public on the issues raised at the roundtable, or on any issue pertaining to deferral of examination ...
Defendant's Knowledge of Reexamination Certificate May Constitute "Objective Recklessness"
Posted on March 09, 2009Ultratech International Inc. v. Swimways Corp., 3-05-cv-00134 (FLMD March 3, 2009, Order)Plaintiff sued defendant in 2005 alleging patent infringement, but the plaintiff did not plead willful infringement. Defendant filed a reexamination soon after, which the PTO granted...
Hearings Begin in Senate On Patent Reform
Posted on March 09, 2009The Senate Committee on the Judiciary has scheduled a hearing on "Patent Reform in the 111th Congress: Legislation and Recent Court Decisions" for Tuesday, March 10, 2009 at 10:00 a.m. in Room 226 of the Senate Dirksen Office Building.A webcast of the hearings will be provided and may be accessed here (link)The Witness List includes:Steven R...
Study: Small Firm Plaintiffs ("Trolls") Have Unexceptional Impact on Patent Litigation
Posted on March 08, 2009A number of years ago, Jay P. Kesan and Gwendolyn Ball teamed together to write "How Are Patent Cases Resolved? An Empirical Examination of the Adjudication and Settlement of Patent Disputes" (link). Many practitioners have relied on the findings in the document, and the paper continues to enjoy a high rate of downloading in the SSRN E-Library...
Directing Method Step to Be Performed Outside U.S. Negates Joint Infringement
Posted on March 05, 2009Short Note On "Top Patent Blogs"
Posted on February 24, 2009?There are no grades of vanity, there are only grades of ability in concealing it?-- Mark Twain While these lists pop up from time-to-time, the IP Watchdog recently compiled a list of the "top 25 patent blogs." The list places yours truly at number 13:Certainly a respectable number, but not one to inspire vanity...
"No Risk For Me" Ex Parte Reexamination Sinks Motion to Stay in ED Tex
Posted on February 24, 2009Affinity Labs of Texas, LLC v. Dice Electronics, LLC, 9-08-cv-00163 (TXED February 20, 2009, Order).Plaintiff Affinity filed suit against the defendants on a patent directed toward systems and methods for connecting a portable audio player to an automobile sound system...
3rd Time's The Charm? Obama Prepares to Nominate Commerce Secretary
Posted on February 23, 2009Reports are coming out that President Obama's likely pick for Commerce Secretary will be former Washington Gov. Gary Locke. Locke was the first Chinese-American governor when he served two terms in the Washington statehouse from 1997 to 2005. Since leaving office he's been working for the Seattle-based law firm Davis Wright Tremaine on issues involving China, energy and governmental relations...
What Will Become of the "Check 21" Patent Reform Provision?
Posted on February 20, 2009A 271 Blog reader brought up an interesting point regarding patent reform and the banking system. Recently, Senate Minority Whip Jon Kyl (R-AZ) introduced the latest Patent Reform Act (S3600), which includes a "Check 21" exception (sec. 13, page 80):"With respect to the use by a financial institution of a check collection system that constitutes an infringement under subsection (a) or (b) of section 271, the provisions of sections 281, 283, 284, and 285 shall not apply against the financial institution with respect to such a check collection system...
Study Proposes Modifications to Patent Venue
Posted on February 19, 2009Sidney Rosenzweig, a visiting fellow at the Progress and Freedom Foundation, published a paper yesterday addressing issues related to patent reform and the venue statutes. Specifically, Rosenzweig identifies numerous deficiencies in the House and Senate bills...
Coalition for Patent Fairness Launches New Site, Blog
Posted on February 19, 2009Ramping up for the 2009+ patent reform efforts, the Coalition for Patent Fairness (CPF) has revamped its website and refocused its message on patent reform, claiming a more economic-based rationale for supporting reform:"Deficiencies in our patent system are holding our economy back by dampening innovation and job creation...
Business Method Patents - Down, But Not Out (At Least Not Yet)
Posted on February 18, 2009Transamerica Life Insurance Company et al v. Lincoln National Life Insurance Company, N.D. IA (1-06-cv-00110)Lincoln accused Transamerica and others of infringing U.S. Patent 7,089,201, titled "Method and apparatus for providing retirement income benefits...
Thopmson Reuters Issues 2009 Patent Focus Report
Posted on February 18, 2009Each year, Thomson Reuters issues an annual report on patenting issues at the world?s major issuing authorities, to "take a look at the stories behind the statistics." This year's report has some interesting findings, especially in China.CHINAOne of the big stories for 2008 was the emergence of Huawei Technologies Co Ltd, a telecom company based in Shenzhen, as the top PCT filer (1,737), placing it ahead of Panasonic (1,729) and Philips (1,551)...
Joff Wild Speaks With Dudas at IAM
Posted on February 17, 2009Joff Wild, editor of IAM Magazine and author of the IAM blog is providing a preview of his interview with former USPTO Director Jon Dudas. As expected, Dudas claims to have "no regrets" over his 6-year tenure, stating that "[d]ifferent industries and different sectors always have different priorities, and that is where disagreements occur...
Software Patents at the UK IPO
Posted on February 12, 2009While the USPTO marches to find consistency on patentable subject matter, I found this practice notice from the UK IPO dated December 8, 2008, dealing with computer programs in light of the recent Symbian decision (link). At first glance, this appears to be a more rational test than the "tied to a particular machine" analysis used at the BPAI under the post-Bilski era:4...
Friday Shorts - Deferred Examination, Gregg Withdraws, NEW ITC Blog
Posted on February 12, 2009Post Mortem at the PTO Deferred Examination Roundtable: Today, the PTO held their roundtable discussion on deferred examination. Tech companies voiced lukewarm support, manufacturers/biotech said "nice idea, but who needs it?", and the PTO claims they have ?huge, huge challenges in examining the applications coming through the door? and that, other than deferred examination, no one has come up with any better ideas...
Another Bilski Decision From the BPAI
Posted on February 11, 2009Ex Parte Nawathe et al., Appeal No. 2007-3360, February 9, 2009The applicants claimed a system and method for representing a normalized eXtensible Markup Language (XML) data structure as fixed sets of tables in a relational database (RDB). The examiner rejected the claims under 35 U...
China Approaching 1M Domestic Patent Filings Per Year
Posted on February 10, 2009The State Intellectual Property Office of China (SIPO) has published some year-end statistics, and the numbers are striking - based on an annualized projection of Chinese patent filings (SIPO only gives 11 months in the report), over 780,000 applications were filed in the year, of which 213,000 are utility model applications and 290,000 are design patent applications...
Letter to Obama from U.S. Manufacturers Questions Rationales For Patent Reform
Posted on February 10, 2009Earlier today, the Manufacturing Alliance on Patent Policy, representing more than 130 US manufacturing companies, sent a joint letter to President Obama voicing concerns over patent reform legislation. More specifically, the letter states that, if 2009's patent reform efforts are a repeat of 2007-08, the legislation would "harm the competitiveness, investment and employment of [the manufacturing] sector...
Patent Reform 2009 Gets Underway
Posted on February 09, 2009While rumblings persisted over the last two weeks, Congressional spokesmen and staffers have now come out publicly to confirm that (1) patent reform will be a "top priority" over the coming year, and (2) any resulting legislation will be on a "fast track...
Unlikely Duo Set Out to Set The Record Straight On NPEs and Patent Litigation
Posted on February 04, 2009"When the cat and mouse agree, the grocer is ruined."-- Iranian proverbToday it was announced that Nathan Myhvold is teaming up with Professor Mark Lemley to conduct a two-year study on patent litigation, and further analyze the frequency and effect of non-practicing entity (NPE) litigation on the patent system...
"Recession IP" - It's All On Sale!
Posted on February 04, 2009From Yesterday's Chicago Tribune:As firms streamline operations to save money amid the recession, a growing number are looking to generate cash by selling or licensing their dormant trademarks and patents. That's creating new demand for Chicago-based Ocean Tomo's intellectual property appraisals, auctions and other services...
"Crowdsourcing" Patent Peer Review
Posted on February 03, 2009Andy Oram over at O'Reilly Media penned an interesting article, titled "Peer-to-Patent and Article One Drag the Reclusive Patent Onto the Thoroughfare," which compares and contrasts various peer review models for the patent process. The article focuses on the recent efforts of Article One and Peer-to-Patent to challenge issued patents...
Obama Nominates Senator Judd Gregg (R-NH) For Sec. Commerce
Posted on February 03, 2009It was officially announced today that President Barack Obama nominated Republican Sen. Judd Gregg to be Commerce secretary. If confirmed by the Senate, Gregg would be in charge of overseeing the USPTO and instrumental in setting patent policy.Of course, now that it's official, let the dirt digging begin:Gene Quinn, "Judd Gregg?s Columbia University Patent Past" (link) - "One thing is for certain though, Judd Gregg does not have a long history to review on patent matters, but the man who will be the boss of the next Director of the United States Patent and Trademark Office does have one thorny patent issue in his past, namely the misguided attempts by Columbia University to extend its patent protection on a multi-million dollar process...
Housecleaning: ED Tex. Declines Venue in 3 Patent Cases
Posted on February 02, 2009Yesterday, Patently-O noted that the CAFC's TS Tech decision was beginning to have an impact on venue determinations in the ED Tex.This morning's Docket Navigator Docket Report discloses that on January 29 and 30, the ED Tex. issued 3 orders declining venue in patent cases:"Under the circumstances presented here, the convenience of witnesses and localized interests weigh in favor of transfer with the other factors neutral or weighing slightly in favor of transfer...
New Statistics on Inter Partes Reexamination
Posted on February 02, 2009Matthew A. Smith, adjunct professor at the George Washington University Law School, and Foley & Lardner attorney, has published the treatise "Inter Partes Reexamination," which provides an in-depth analysis of Inter Partes Reexamination practice before the United States Patent & Trademark Office...
The First Domino? C.D. Ca. Invalidates Business Method Patent Under Bilski
Posted on January 29, 2009Fort Properties, Inc. v. Master Lease LLC, (SACV07-365 AG) C.D. Ca., January 22, 2009Fort Properties filed suit against Master Lease, seeking a declaration from the court that Master Lease's patent on business methods for creating an investment instrument out of real property (US patent 6,292,788) was not infringed and/or invalid...
Study: Experienced Examiners Allow More, Cite Less
Posted on January 28, 2009In what is sure to be an oft-cited paper in the "Great Patent Reform Debate", professors Mark Lemley and Bhaven Sampat have brandished their magnifying glasses on examiner processes at the USPTO to see if certain examiner characteristics had statistical effects on the examination process...
WIPO: Global Economic Slowdown Impacts 2008 International Patent Filings
Posted on January 27, 2009WIPO issued a press release today on international filings, noting that the growth of PCT filings has dropped from 9.3% in 2007 to 2.4% in 2008.The most robust growth rates for PCT filings include the Republic of Korea (+12.0%), China (+11.9%) and Sweden (+12...
Monday Shorts: Jury Misconceptions, Patent Reform, and Peer-to-Patent
Posted on January 26, 2009Are Juries Misinformed in Patent Cases ? - Joe Mullin has a great piece over at Law.com titled "How Juror Misconceptions Affect Patent Trials." Despite the fact that most jurors think that infringement means inventors claiming they've been copied, research done using Stanford Law School's new IP Litigation Clearing House demonstrates that formal allegations and findings of copying are actually quite rare in patent disputes...
EDNY Nixes Therapeutic Pharma Patent Using Bilski
Posted on January 23, 2009King Pharmaceuticals, Inc et al v. EON Labs, Inc., E.D.N.Y (1-04-cv-05540), Jan. 20, 2009In a highly publicized case, King Pharmaceuticals brought an action against Eon Labs on patents relating to methods of informing patients about and administering the muscle relaxant metaxalone - marketed by King under the brand name "Skelaxin®" - with food...
N.D. Ca.: Quality, Not Quantity of Motions Is Most Relevant For Motion to Stay
Posted on January 21, 2009Yodlee, Inc. v. Ablaise Ltd. et al (4-06-cv-07222) CAND, Jan. 16, 2009The litigation between the patentee and the accused parties began in 2006, while concurrent litigation was ongoing in a different district. For the following year, fact discovery was stayed in light of developments in the other litigation...
Obama Administration Orders Reconsideration/Suspension of New Rules
Posted on January 21, 2009Yesterday, the new White House Chief of Staff Rahm Emanuel issued a memo to government agencies (e.g., the USPTO) that "no proposed or final regulation should be sent to the Officeof the Federal Register (the "OFR") for publication unless and until it has been reviewed and approved by a department or agency head appointed or designated by the President after noon on January 20, 2009...
Mammoth Paper on Patent Case Management To Be Published by the Federal Judicial Center
Posted on January 20, 2009Professor Peter Menell from the University of California, Berkeley School of Law, and a host of patent litigators, judges and academics are preparing to publish a paper titled "Patent Case Management Judicial Guide" that strives to provide a "best practices" overview for judges and practitioners alike...
Patent Litigation Sinking for 2009
Posted on January 20, 2009According to Stanford Law School's IP Litigation Clearinghouse, patent litigation dropped by 8% in 2008 (2,605 cases were filed). This is not unusual, considering that patent litigation has been dropping slightly each year since the 2004-05 peak. What is remarkable however, is that when you look at the last five months of 2008 (i...
Study: Apportioned Damages Would Decrease Patent Value Between $35-85B
Posted on January 15, 2009Yesterday a group of U.S. manufacturers released research entitled ?The Likely Adverse Effects of an Apportionment-Centric System of Patent Damages.? The research was conducted by Scott Shane, Ph.D., Professor of Economics at Case Western Reserve University in Cleveland...
Top Patent Holders: IBM Tips the 4K Mark for 2008
Posted on January 14, 2009While the PTO has eschewed publication of "top patent holders," independent patent research companies like IFI Patent Intelligence continue to track who is filing what in the PTO. In this year's "Top U.S.-Patent Recipients" list, IFI rounds out the top 20 this way: 1 INTERNATIONAL BUSINESS MACHINES CORP 4186 2 SAMSUNG ELECTRONICS CO LTD KR 3515 3 CANON K K JP 2114 4 MICROSOFT CORP 2030 5 INTEL CORP 1776 6 MATSUSHITA ELECTRIC INDUSTRIAL CO LTD JP (1) 1745 7 TOSHIBA CORP JP 1609 8 FUJITSU LTD JP 1494 9 SONY CORP JP 1485 10 HEWLETT-PACKARD DEVELOPMENT CO L P 1424 11 HITACHI LTD JP 1313 12 MICRON TECHNOLOGY INC 1250 13 SEIKO EPSON CORP JP 1229 14 GENERAL ELECTRIC CO 912 15 FUJIFILM CORP JP 869 16 RICOH CO LTD JP 857 17 INFINEON TECHNOLOGIES AG DE 814 18 LG ELECTRONICS INC KR 805 19 TEXAS INSTRUMENTS INC 757 20 HONDA MOTOR CO LTD JP 747To see the top-35 list, click here...
CAFC Walks Away From Comiskey During En Banc Review
Posted on January 13, 2009In Re Comiskey, 06-1286, January 13, 2009In a controversial move, the CAFC decided today to reject en banc review of Comiskey, where claims directed to "a method for mandatory arbitration resolution regarding one or more unilateral documents" were held to be non-statutory subject matter under 35 U...
JPO Considers Making Software and Business Methods Patentable by 2011
Posted on January 09, 2009Japanese newspaper Nikkei Shimbun is reporting that the JPO will begin a study in 2009 to "drastically revise" Japanese patent law. The main points of study include:Revising the definition of "invention" that is protected subject matter Making a system for promoting innovation by terminating the "right to seek an injunction" Revising "employee invention provisions" Studying ways to resolve disputes promptly and effectively Speeding up examination and responding to applicants' needs Making the text and provisions easy to understand The study is scheduled to begin at the end of January, and is expected to last one year...
C.D. Cal.: Discovery "Settlement Privilege" Does Not Exist
Posted on January 08, 2009Real Estate Alliance Ltd. v. National Association of Realtors et al. (2-08-cv-01657) CACD (December 23, 2008)In a patent case, the plaintiff requested that defendant "produce all documents relating to its settlement with Mr. Freedman - including the settlement agreement itself, drafts thereof, all correspondence between REAL and Mr...
House Rule Change May Cloud Transparency on Patent Reform
Posted on January 06, 2009Back in 1994, reforms to the House rules were made to tackle the issue of "secretive" legislative processes. The reforms included opening committee meetings to the public and media, term limits for committee chairmen, "truth in budgeting", elimination of the committee proxy vote, authorization of a House audit, specific requirements for blanket rules waivers, and guarantees to the minority party to offer amendments to pieces of legislation...
IEEE Releases Patent Portfolio Scorecard
Posted on January 06, 2009IEEE Spectrum has released its annual patent scorecard that ranks the "pipeline power" of U.S. technology patent portfolios. The survey scores a company's "pipeline power" by considering a variety of factors, including the number of patents issued to the company in a given year, the growth of its patent portfolio and the variety of the technologies a company patents (for more on the methodology, see here)...
PTO Director Jon Dudas Announces Resignation
Posted on January 06, 2009While a copy of the memo is not currently available, reliable sources (as well as Patently-O) are reporting that Jon Dudas has announced his resignation.See the post from Patently-O here.
Coalition Challenges Digital TV Patent License Fees
Posted on January 05, 2009Recently, an ad hoc group called the Coalition United to Terminate Financial Abuses of the Television Transition ("CUT FATT") has petitioned the FCC to require patent holders who charge "high" fees to prove that their license fees are reasonable, and have the FCC create basic rules for licensing of patents to prevent "possible price gouging...
Specification and Claim Language Helps Patent Escape "Divided Infringement" on SJ
Posted on January 05, 2009Level 3 Communications, LLC v. Limelight Networks, Inc., E.D. Va., 2:07cv589 (December 29, 2008)Level 3 sued Limelight over a number of patents related to a Content Delivery Network (CDN). The patent described a CDN as "a system that supports delivery of information, such as video, music, games, and software, to computer users or computers on behalf ofits subscribers (typically content providers)...
When Considering PTO Reform, Look to KIPO For Clues
Posted on December 23, 2008Earlier in the month, The US Patent Policy Advisory Committee issued its 2008 report that explored ways to tackle various quality and pendency issues affecting the PTO. The report concluded that application backlog "reached truly unacceptable levels in 2008...
More on Article One Patent Project
Posted on December 17, 2008Earlier the 271 Blog a href="http://271patent.blogspot.com/2008/11/patent-bounties-making-another-run.html"covered/a Article One's entry into the "patent bounty" space, where the company claimed to be something akin to a "Peer-to-Patent" project that compensated participants...
CAFC Provides Further Guidance on Means-Plus-Function
Posted on December 15, 2008Welker Bearing Co. v. PHD, Inc. 08-1169, December 15, 2008Welker appealed the district court's summary judgment of noninfringement. As part of the appeal, Welker challenged the district court's interpretation of "mechanism for" as a means-plus-function term under §112 ¶ 6...
Friday Shorts: PTO Backlog, More Bilski, Linux Defenders, 2007 Defendant Spike
Posted on December 12, 2008Former PTO Officials Testify Before Congress: former PTO leaders sharply criticized the PTO?s failure to address the 1.2 million case backlog, one former commissioner calling the problem "horrendous" (link)Bilski Starts to Pop Up in the District Courts: in the case of Every Penny Counts, Inc...
"Untenable" Claim Construction Leads to Plaintiff Rule 11 Sanctions
Posted on December 10, 2008Triune Star Inc. v. The Walt Disney Co., Case No. 07-1256 (C.D. Ill., November 24, 2008)Triune sued defendants over a patent relating to a ?telecommunications locating system.? Defendants moved for summary judgment of noninfringement, claiming, among other things, that prosecution history estoppel unequivocally cleared them of any infringement whatsoever...
BPAI Appeal Brief Rules Delayed, According to Last-Minute PTO Notice
Posted on December 09, 2008A FR notice will (officially) be published tomorrow, stating that the Appeal Brief Rules will be delayed, pending further OMB review.From the Notice:On October 8, 2008, the Office published a 30-Day Federal Register Notice stating that the proposal for the collection of information under the final rule was being submitted to OMB and requesting comments on the proposed information collection be submitted to OMB...
Claim Construction Estoppel Heads to the CAFC
Posted on December 09, 2008Shire LLC v. Sandoz, 07-CV-00197-PAB, December 5, 2008 (D. Co.)The district court issued an Order and Memorandum construing the claims in the patents at issue. In the Order, the Court declined to apply the doctrine of issue preclusion to another district court?s claim construction with respect to the same patents...
Tafas v. Dudas Oral Arguments Completed at the CAFC
Posted on December 05, 2008Today, a panel of the Court (Rader, Bryson, Prost) heard oral argument in Tafas v. Dudas before a jam-packed courthouse. Early reports indicate that the CAFC recognized, despite PTO assertions to the contrary, that the proposed continuation rules effectively set a ?hard limit? of two continuing applications, and are potentially in conflict with the statute...
Study: Patent Pools May Discourage Innovation
Posted on December 04, 2008Stanford University's Ryan Lampe and Petra Moser saw that regulators favor patent pools as a means to encourage innovation in industries where overlapping patents and excessive litigation cause problems. While the theory appears sound in principle, does the aggregation of patent rights actually spur innovation? Lampe and Moser decided to look at this issue in their recently published paper titled "Do Patent Pools Encourage Innovation? Evidence from the 19th-Century Sewing Machine"As you can tell from the title, Lampe and Moser had to go quite a ways back to see how innovation was affected - after all, it takes decades, if not a century, to determine the effects of patent pooling on an entire industry...
IEEE Publishes Interesting Study on Solar Panel Patenting
Posted on December 04, 2008IEEE reported on a a study from Semiconductor Insights analyzing U.S. patents in solar technology and trends in U.S. solar patents by company and technology. The study found that Canon, TSMC and Samsung are among the largest patent holders in solar photovoltaic panels, although they have no products in the field today...
S.D.N.Y.: Patentee Estopped From Asserting Patent After 4+ Year Delay
Posted on December 02, 2008Aspex Eyewear, Inc. et al v. Clariti Eyewear, Inc. (1-07-cv-02373) SDNY, November 26, 2008After Clariti initiated a product release, they received a letter from Aspex on March 2003, identifying 4 patents, along with a demand, stating that the matter was "very urgent and serious...
Interesting Claim on Big-3 Patents
Posted on December 02, 2008James E. Malackowski, president and CEO of Ocean Tomo LLC, writes an editorial in today's Detroit News:As Washington decides on aid to the ailing auto industry, top consideration should be given to the significant potential of these Big 3 technologies for stimulating economic and job growth and creating a greener and more fuel-efficient world ...
Are Inter-Partes Reexams Losing Their "Staying Power"?
Posted on November 25, 2008ESN v. Cisco Systems, Inc., E.D. Tex., 5:08-CV-20, November 20, 2008ESN sued Cisco for patent infringment. A few months later, Cisco successfully petitioned for an inter-partes reexamination (IPR). Shortly thereafter, the PTO issues a First Office Action rejecting every claim in the patent...
USPTO: It's OK To Start Filing Appeal Briefs Under New Format
Posted on November 24, 2008As a reminder, the new USPTO Appeal Brief Rules will go into effect December 10, 2008. In the meantime, ambitious appellants have already filed Briefs under the new format, in anticipation of the change. Unfortunately, some of those briefs were flagged for being non-compliant...
Thursday Shorts
Posted on November 20, 2008Federal Circuit Updates Internal Operating Procedures - After providing proposed changes to the public on Internal Operating Procedures (IOPs), the court recently voted to approve the changes. In addition to general changes to update the IOPs, the Federal Circuit also added two new sections in response to suggestions from the public...
Post-Bilski at the USPTO: Is the BPAI Looking to Create a "Software Per Se" Exception?
Posted on November 18, 2008"The United States is a nation of laws: badly written and randomly enforced."- Frank Zappa (1940 - 1993)Ex Parte Godwin, Appeal 2008-0130, November 13, 2008This opinion issued from a Request for Rehearing that was filed before the Bilski decision, and the opinion followed after (side note: the original Notice of Appeal was filed June 6, 2006)...
USPTO Releases Fiscal Year-End Numbers
Posted on November 18, 2008The USPTO FY2008 report is out, and, unsurprisingly, "the USPTO met and, in some cases, exceeded its patent pendency, production, and quality targets."According to the report,- Patents "maintained a high level of patent quality by achieving an allowance compliance rate of 96...
SBA Publishes Study Regarding Impact of Small Business Patenting
Posted on November 17, 2008Anthony Breitzman and Diana Hicks have published a report for the Small Business Administration (SBA), titled "An Analysis of Small Business Patents by Industry and Firm Size." The study is the third in a series that examines small business patent activity...
Patent "Bounties" Attempting a Comeback
Posted on November 17, 2008Borrowing from a page book of Peer-to-Patent and the long-defunct Bountyquest, the company Article One Partners, LLC has launched "a new global community to legitimize the validity of patents."Basically, the system works to recruit community members (also known as "Advisors") to search and report prior art against high profile patents...
Obama Transition Team Member Is No Fan of the U.S. Patent System
Posted on November 14, 2008Yesterday, it was reported by Condé Nast Portfolio that President elect Barack Obama is setting up agency review teams for his transition to the White House. The teams will be responsible for reviewing all the major U.S. government departments, advise the Obama administration on policy prior to inauguration day, and keep the new administration's nominees prepped and informed as they make their way through the confirmation process in Congress...
D. Del.: "Sustainable, Reasonable" Defenses Enough to Negate Willfulness
Posted on November 14, 2008Honeywell International Inc. v. Universal Avionics Systems Corp., No. 02-359-MPT, November 12, 2008Honeywell sued Universal over five patents dealing with aviation warning systems. After trial and appeal to the CAFC, the case was remanded. On remand, Universal filed a motion for summary judgment of no willful infringement...
Wegner: 10 Steps to Reform Inter Partes Reexamination
Posted on November 13, 2008Currently, one of the most significant flaws of inter partes reexamination is that the PTO has failed to meet the "special dispatch" statutory mandate to conclude all reexaminations within 12-18 months from filing. Since the beginning of inter partes reexaminations, there has never been even one merits appeal to reach the Federal Circuit in an inter partes reexamination...
CAFC: "Graham Analysis" Not Always Required For Double-Patenting
Posted on November 13, 2008In Re Basell Poliolefine Italia S.P.A., November 13, 2008, No. 2007-1450.Basell appealed two decisions of the BPAI resulting from a Director-ordered reexamination of Basell's patent. The Board affirmed the rejections of all the claims of the patent as unpatentable under 35 U...
Academic Podcast Discusses Bilski
Posted on November 12, 2008A relatively new site called the Intellectual Property Colloquium is posting round table "NPR-like" discussions relating to IP. The most recent show, hosted by Doug Lichtman from the UCLA School of Law, discusses In Re Bilski, and includes guests John Duffy (GWU) and Rob Merges (UC Berkley)...
USPTO To Increase PCT Transmittal and Search Fees
Posted on November 12, 2008From the PTO:The Office is adjusting the PCT transmittal and search fees to recover the estimated average cost to the Office of processing PCT international applications and preparing international search reports and written opinions for PCT international applications...
USITC Study Concludes Industrial Biotech Patents are "Facilitating and Not Stifling Innovation"
Posted on November 11, 2008A new staff research study by the U.S. International Trade Commission's ( ITC ) Office of Industries looks at innovation with regard to industrial biotechnology in the U.S. The report, titled "Patenting Trends and Innovation in Industrial Biotechnology" uses patent data, survey results, and profiles of firms in two emerging sectors ( cellulosic ethanol and bio-based plastics ) to "paint a new picture of innovation" in industrial biotechnology...
In Re Bilski: Did Computer and Software "Machines" Get a Pass?
Posted on November 04, 2008One certain takeaway from the Bilski opinion is that, if you expected any sort of closure whatsoever on 35 U.S.C. §101, you were sorely disappointed (see Rader dissent on that). While most practitioners have scoured Bilski to divine meaning from the opinion for computer software, it is becoming apparent that Bilski was not intended to resolve issues pertaining to computers, and especially ones considered "machines" for the purposes of section 101...
CAFC Decides Bilski, Rules In Favor Of the USPTO
Posted on October 30, 2008Read all the opinions (9-3, 132 pages) hereHIGHLIGHTS:** Freeman-Walter-Abele "inadequate" and "should no longer be relied on"*** HOWEVER, "'useful, concrete and tangible result' inquiry is [also] inadequate." Noted the CAFC: "As a result, those portions of our opinions in State Street and AT&T relying solely on a 'useful, concrete and tangible result' analysis should no longer be relied on (emphasis added)...
Update From the 271 Patent Blog
Posted on October 28, 2008Many readers have been wondering what happened to the blog, as I have not posted anything for the last month. The short answer is that the blog is alive and well and postings will resume shortly.So what happened? Well, the longer answer is a bit more complicated...
New Patent Reform Bill Introduced In Senate (Seriously!)
Posted on September 25, 2008"And I beheld when he had opened the sixth seal, and, lo, there was a great earthquake; and the sun became black as sackcloth of hair, and the moon became as blood"-- Revelation 6:12As the Horsemen of the Apocalypse plod through the financial markets, Congress, suffices to say, has has a rough patch heading into the final days of the current Session of Congress...
Study Over Impacts of Erroneous Litigation Vs. Settling Published
Posted on September 24, 2008Last month, the Journal of Empirical Legal Studies issued a press release over a study that suggested that a majority of plaintiffs making the wrong decision to go to trial ended up with a verdict that was less money than the settlement offer. You can read previous coverage by the 271 Blog on this topic here...
Happy Anti-Software Patent Day
Posted on September 24, 2008A global coalition of more than 80 software companies, associations and developers has declared the 24th of September to be the "World Day Against Software Patents".According to Benjamin Henrion, initiator of the StopSoftwarePatents coalition effort,The aim behind StopSoftwarePatents is to gather a worldwide coalition of businesses and civil society in order to get laws which clearly exempt software from patentable subject matter...
CAFC: Improper Revival of Abandoned Application Is No Defense For Infringement
Posted on September 23, 2008Aritocrat Technologies Australia PTY Lmtd. v. International Game Tech., September 22, 2008 (08-1016)Aristocrat accused IGT of patent infringment, where the patents-in-suit were revived in the USPTO after being abandoned for paying the national filing fee one day late...
First-To-File in the U.S., Small Entity Inventors, and Grace Periods
Posted on September 22, 2008University of Virginia law professor Margo A. Bagley has published a draft paper titled "The Need for Speed (and Grace): Issues in a First-Inventor-to-File World" that looks at various issues and concerns over a first-to-file regime (FITF) proposed recently in the Patent Reform Act...
Wednesday Shorts: Myhrvold Stalks, EPO Strikes, Lehman Sinks
Posted on September 17, 2008Nathan Myhrvold and Intellectual Ventures Set for Big Patent Play: over the last few years, Intellectual Ventures (IV) has amassed a whopping 20,000-plus patents and patent applications related to everything from lasers to computer chips. IV now ranks among the world's largest patent-holders -- and the company is ready to press tech giants to sign some of the costliest patent-licensing deals ever negotiated...
Most Litigious NPE's of All Time
Posted on September 16, 2008Joff Wild over at the IAM Blog recently chatted with Dan McCurdy, chairman of PatentFreedom and CEO of Allied Security Trust, who is issuing a list of the most litigious non-practicing entities (aka "patent trolls") for the next issue of IAM Magazine...
USPTO Issues Dual Memos on 112 Rejections
Posted on September 15, 2008Earlier in the year, the CAFC issued its opinion in Halliburton Energy Services, Inc. v. M-I LLC, 514 F.3d 1244 (Fed. Cir. 2008), where the court stated "[w]e note that the patent drafter is in tlle best position to resolve the ambiguity in the patent claims, and it is highly desirable that patent examiners demand that applicants do so in appropriate circumstances so that the patent can be amended during prosecution rather than attempting to resolve the ambiguity in litigation...
EPO Publishes Helpful Presentations From September Program
Posted on September 14, 2008The Organization for Economic Co-operation and Development and the European Patent Office recently held a conference on Sept. 3-4 in Vienna, titled "Patent Statistics for Decision Makers" that addressed issues such as patent valuation, patent strategies, business dynamics, and technology markets...
Forbes: Top Patent Revenue-Generating Universities
Posted on September 14, 2008Continuing the recent media focus on universities and patents, Forbes has a great article on IP cash cows, and which universities are "bottling the most milk" from their patent portfolios:(1) New York University2006 Research Expenditures: $210 million2006 Research-Related Income: $157 millionYield: 75% (2) Wake Forest University2006 Research Expenditures: $146...
Why Academia Takes Profits Over Wonder
Posted on September 11, 2008"In academia?s continuing pursuit of profit, the wonder of simple serendipitous discovery has been left on the curb."- Janet Rae-Dupree, "When Academia Puts Profit Ahead of Wonder", New York Times, September 6, 2008 (link)Over the weekend, the NYT's hand wringing editorial over the "corporatization" of university research has sparked debate in the patent community (see Patently-O, Patent Docs, Patent Hawk, IPBiz)...
Beating NPE Patent Holders At Their Own Game
Posted on September 10, 2008Electronics Design, Strategy, News (EDN) magazine published an article yesterday, titled "If You Can't Beat Patent Trolls, Join Them," which covers the latest in the manufacturers-vs.-NPE's battles:Stuck in apparent stalemate on the legislative side, large companies have formed two new organizations?Allied Security Trust (AST) and PatentFreedom LLC?that use market forces rather than laws to ward off trolls...
PTO General Counsel Toupin Continues to Promote AQS for IPO Annual Meeting
Posted on September 09, 2008Hal Wegner distributed an interesting presentation this morning from PTO GC James Toupin which confirms that (1) despite a potential "changing of the guard" in the coming elections, the PTO continues to push for the same reform measures, and (2) despite mounting criticism, the PTO continues to see no problems with the tactics used for instituting reform...
CAFC: Prior Art Recycling Permitted For Reexamination
Posted on September 08, 2008In Re Swanson, September 4, 2008 (07-1534)In 1997, the CAFC decided In re Portola Packaging, holding that ?prior art previously considered by the PTO in relation to the same or broader claims" would preclude reexamination requests on the same art.In 2002 Congress amended § 303(a) to include an additional sentence, explaining that the amendment ?overturns the holding of In re Portola Packaging" and that "[t]he existence of a substantial new question of patentability is not precluded by the fact that a patent or printed publication was previously cited by or to the Office or considered by the Office...
Light Reading For Labor Day: 2007 Annual US Court Report
Posted on August 29, 2008When you're not preoccupied wiping BBQ sauce from your hands (and children's faces) this weekend, the Statistics Division for the Administrative Office of U.S. Courts released its annual report (all 416 pages) on "Judicial Business of the United States Courts...
Patent Reform Touches DNC in Denver
Posted on August 27, 2008From the "Tech Daily Dose" for Congressional Daily:Rep. Zoe Lofgren, D-Calif., told a crowd in Denver on Tuesday that it is crucial for Congress to pass legislation to update the U.S. patent system next year -- even if the measure is a scaled back version of the broad, controversial language that was in play during the 110th Congress...
USPTO Seeks Volunteers for "Continuing Education for Practitioners" Program
Posted on August 27, 2008From a recent USPTO news release:The USPTO is developing a Continuing Education for Practitioners (?CEP?) system for on-line delivery of educational materials to patent practitioners, and is seeking help in piloting the on-line system. The CEP system is built on the recognition that a smoothly operating patent system requires well-qualified USPTO personnel working hand-in-hand with up-to-date patent practitioners...
Pending Study Suggests Plaintiffs Should Settle, Rather Than Litigate
Posted on August 26, 2008While it isn't patent-specific, a somewhat controversial study will be published in the Journal of Empirical Legal Studies that looked at 2,054 cases that went to trial from 2002 to 2005 to see if parties are better off settling rather than going to trial...
CAFC: "Original" Applications Include Continuations For the Purposes Of Inter Partes Reexam
Posted on August 19, 2008Cooper Technologies Co. v. Director U.S. Patent and Trademark Office, (08-1130), August 19, 2008Pursuant to section 4608 of the American Inventors Protection Act of 1999 (AIPA), the inter partes reexamination procedure is available for "any patent that issues from an original application filed in the United States on or after" November 29, 1999Cooper challenged the propriety of an inter-partes reexamination request on a continuation patent, filed after November 29, 1999, whose parent applications were filed before that date...
Gary Odom, a.k.a. Patent Hawk, Sues Microsoft for Patent Infringement
Posted on August 19, 2008Gary announced yesterday on his patent blog site Patent Prospector, that he has filed a complaint in the Eastern District of Texas, accusing Microsoft of infringing U.S. Patent 7,363,592, titled "Tool Group Manipulations."Download a copy of the complaint here.
CAFC Finds Infringement Under Doctrine of Equivalents, but Limits Injunctive Relief
Posted on August 19, 2008Voda v. Cordis Corp., 07-1297, August 18, 2008After a jury trial, the district court found that Cordis infringed Voda's patent related to cardiac guide catheters. On appeal, Cordin argued, among other things, that the district court erred in finding infringement under the doctrine of equivalents (DOE)...
Are We Heading for a "Subprime Patent Crisis"?
Posted on August 18, 2008Alberto Barrionuevo, president of the anti-software-patent Foundation for a Free Information Infrastructure (FFII), seems to think so:In many countries, many regulations (financial controls) were removed and so the market was finally flooded by what any common person would denominate "fake money"...
BMC/Muniauction Decisions Sink Global Patent Holdings Joint Infringement Claim
Posted on August 15, 2008Global Patent Holdings, LLC v. Panthers BRHC LLC, No. 9:08-cv-80013-KAM, August 12, 2008Global Patent Holdings (GPH) sued Panthers for infringing U.S. Patent Number 5,253,341, known as the ?Remote Query Communication System? patent (also known as the "JPEG patent")...
PTO Limits Scope of Patent Agent Representation
Posted on August 14, 2008Today's Federal Register issued final rulemaking, effective September 15, 2008, that proscribes a patent agent from giving an opinion on infringement or validity, except for situations where an opinion of validity is "reasonably necessary and incident to the preparation and prosecution of patent applications or other proceedings before the Office involving a patent application or patent...
BPAI Precedential Opinion: Examiners Must Provide "Reasoned, Fact-Based" Evidence For Prior Art Rejections
Posted on August 14, 2008Ex Parte Whalen II, Appeal 2007-4423, July 23, 2008Whalen's application claimed a composition for embolizing an aneurism, which the Examiner rejected for anticipation, and obviousness.The primary issue in the rejections centered around a claim element reciting embolic compositions having a viscosity of at least 150cSt (centiStokes) at 40 degrees C...
Patent Reform Crawling Back In 2008? Lemley Proposal For Damages May Provide Answers
Posted on August 13, 2008Friday's CongressDaily reported that Senate Minority Whip Kyl and his staff are in the process of drafting patent reform legislation, and they are expected to unveil their proposal in September. According to sources, the draft "is said to be much different from the version introduced by Senate Judiciary Chairman Patrick Leahy and Sen...
BPAI Appointments: Fixed
Posted on August 12, 2008Statement by the Press SecretaryWASHINGTON--(BUSINESS WIRE)--On Tuesday, August 12, 2008, the President signed into law:S. 3295, which provides for the appointment of administrative patent judges and administrative trademark judges in the U.S. Patent and Trademark Office...
W.D. Wis.: All Instances of Materiality Should Be Argued for Inequitable Conduct
Posted on August 12, 2008Silicon Graphics v. ATI Technologies, Inc., W.D. Wis., 06-cv-611-bbc (August 1, 2008)Silicon Graphics (SG) sued ATI for infringement of 3 patents. ATI counterclaimed that the patents were invalid and unenforceable. In pretrial rulings, Judge Crabb found no basis for infringement on 2 of the patents, and SG conceded at the final pretrial conference that the remaining patent was not infringed and agreed to dismiss the claims with prejudice...
USPTO Clarification: Continuation Rules Not Retroactive, Despite Appeal
Posted on August 07, 2008The USPTO issued a clarification today, stating that practitioners should not try to overcompensate by taking "preparatory actions" for portfolios in light of the continuation rule appeal. Worry not: if the injunction is overturned at the CAFC (shudder), the PTO will not retroactively apply the rules:[T]he changes in 37 CFR 1...
Bill Fixing BPAI Appointments Ready For Bush's Signature
Posted on August 07, 2008On August 5, S.3295 was cleared from the Senate and presented to the President for signature. The Senate bill was referred from the House Committee on the Judiciary as H.R.6362.The bill addresses the questioned consitutionality of the appointment of about 50 administrative patent and trademark appeals judges by amending title 35 section 6:(c) Authority of the Secretary- The Secretary of Commerce may, in his or her discretion, deem the appointment of an administrative patent judge who, before the date of the enactment of this subsection, held office pursuant to an appointment by the Director to take effect on the date on which the Director initially appointed the administrative patent judge...
USPTO: Say Goodbye To Facsimile Submissions
Posted on August 06, 2008The PTO is proposing to revise the rules of practice to limit the types of correspondence that may be submitted to the Office by facsimile. From the latest Federal Register:[T]he Office believes that given: (1) The costs and quality concerns regarding facsimile transmitted correspondence; and (2) the newly upgraded EFS?Web electronic filing system, which offers the same benefit of quick submission to the particular area of the Office that needs to act on the correspondence, it is now appropriate to terminate the use of facsimile transmissions as a method for filing most correspondence intended to become part of the file record of a patent application, patent or reexamination proceeding...
The Advantages of Inter Partes Reexamination
Posted on August 06, 2008Conventional wisdom used to be that a recommendation to an accused infringer to seek inter partes reexamination bordered on legal malpractice. While inter partes reexamination requests are relatively rare, their popularity is increasing. A primary reason for the increased popularity is the advantages that inter partes reexamination requests provide: (1) no presumption of validity, (2) broadest reasonable claim construction, (3) no discovery into the accused product, (3) direct involvement with technically trained decision makers at the PTO, and (4) advantageous treatment for stays oif litigation...
CAFC: Nonregulated Equipment Exempt From Hatch-Waxman "Safe Harbor"
Posted on August 05, 2008Proveris Scientific Corp. v. Innovasystems Inc., (07-1428), August 5, 2008Innova makes and sells a device known as the Optical Spray Analyzer ("OSA"), which measures the physical parameters of aerosol sprays used in nasal spray drug delivery devices. While the sprays are subject to FDA approval, the OSA is not...
WIPO Releases 2008 Worldwide Patent Report
Posted on August 04, 2008The World Intellectual Property Organization (WIPO) has released "The World Patent Report: A Statistical Review," which is an annual publication, and the 2008 edition is the third edition in the series. The reports are part of a continuing effort at WIPO to "improve statistical information on patent activity covering as many countries as possible across the world and to develop and provide new indicators that are relevant to current policy issues...
Consumer Groups File CAFC Amicus Brief in Support of USPTO Rule Changes
Posted on July 29, 2008A coalition of consumer advocacy and public interest groups recently filed an amicus brief at the CAFC, arguing that the PTO's "continuation rule changes" would curtail abusive behavior by patent applicants and improve patent quality.The brief continues the same themes raised in earlier amicus briefs at the district court, that endless continuations harm the public good and hinder innovation...
Peterlin Resigns from USPTO
Posted on July 29, 2008From a USPTO press release:Margaret J.A. Peterlin, deputy under secretary of Commerce for IntellectualProperty and deputy director of the United States Patent and Trademark Office(USPTO), has announced that she will be leaving the USPTO in August with plansto pursue employment opportunities in the private sector...
Judge Plager: Regrets "Unintended Consequences" of State Street
Posted on July 29, 2008Recently, CAFC Senior Judge Jay Plager spoke at a symposium at George Mason University, where he called for a "rethinking" of several aspects of patent law by returning to its origins in property law.According to BNA,[Plager] called for a renewed focus on setting recognizable patent ownership boundaries and on strengthening the notice function that patents are intended to serve...
Wednesday Shorts
Posted on July 23, 2008USPTO Issues Warning on Patent Drafting Outsourcing: The PTO issued a "reminder" in today's Federal Register that foreign patent prosecution remains subject to 15 CFR 730-744, and that technology exports must be pre-approved approval by the Bureau of Industry and Security (BIS) at the Department of Commerce...
Patentee's Litigation Deemed "A Collosal Waste of Time"; Sanctions Granted
Posted on July 22, 2008Advanced Magnetic Closures, Inc. v. Rome Fastener Corp., S.D.N.Y. (98 Civ. 7766), July 17, 2008Adbanced Magnetic Closures (AMC) sued Rome Fastener ("Romag") in 1998 for infringing a patent on a magnetic snap fasteners commonly used in the fashion industry to secure the flaps on ladies? handbags...
USPTO Files CAFC Appeal Brief: Tafas v. Dudas
Posted on July 22, 2008As expected, the USPTO continues its appeal after the district court ruled that the PTO lacked authority to limit the number of claims and continuations that applicants could file. OnJuly 18th, the PTO submitted a brief to the CAFC that presented the following 3 issues:1...
Trouble Ahead for the USPTO's Appeal Brief Rules?
Posted on July 21, 2008If anyone thought that the manner in which the USPTO Appeal Brief Rules were implemented was, well, a bit "askew", there appears to be evidence that your instincts were correct. Last Friday, David Boundy circulated a Federal Register Notice that apparently was not publicized on any of the PTO's list of Federal Register Notices...
"Blockbuster" Academic Studies on KSR, Obviousness
Posted on July 21, 2008Professor Joseph Scott Miller of the Lewis & Clark Law School ( and author of the Fire of Genius Blog) has put together a special issue of the law journal that focuses upon the many aspects of the KSR Supreme Court obviousness ruling. Thus publications include:? Gregory N...
Rethinking the Role of the ITC In Patent Cases
Posted on July 16, 2008When Section 337 of the 1930 Trade Act was enacted, its original purpose was to protect US businesses against unfair foreign competition. Coupled with government subsidies, tariffs and seizures, US businesses were provided with potentially potent weapons for stifling foreign encroachment on US business interests...
USPTO Patent Quality - It's Not As Bad As You Think
Posted on July 15, 2008Over the past five years, there has been an obsession within the patent community to find ways to increase "patent quality." No matter how you define it, most people agree that there have been periods where the PTO appeared dodgy in its role as a gatekeeper for "high quality patents...
CAFC: Web-Based Implementation Deemed Obvious; Joint Infringement Nixed
Posted on July 14, 2008Muniauction, Inc. v. Thomson Corp., July 14, 2008 (2007-1485)After a jury trial, the district court ruled that Thomson wilfully infringed Muniauction's patent related to conducting original issuer auctions of financial instruments. The district court awarded enhanced damages, and entered a permanent injunction against Thomson...
Are Royalties Too High in High-Tech? Recent Study Says "No"
Posted on July 10, 2008Over the past few years, a lot of attention has been paid to the level of royalties that are charged by holders of IP rights, especially when patents are essential to an industry standard. The FTC and the DoJ have been especially active trying to control IP costs among various standardized industries...
C.D. Cal.: Patentee Must Make Affirmative Act For DJ Jurisdiction
Posted on July 09, 2008Panavise Products, Inc. v. National Products, Inc., CV 08-1300 ABC (May 30, 2008)Panavise was releasing a product that they feared could infringe National Products (NP) patent. Viewing the litigation history of the patent, Panavise saw that they had sued other unrelated parties in the past (6 suits involving 12 entities), and made public statements declaring that the patent was "essential" to the technological area...
BPAI Weighs In Again On Computer-Implemented Inventions and Section 101
Posted on July 08, 2008Ex Parte Wasynczuk, No. 2008-1496, June 2, 2008 (Informative Opinion)In a rather interesting appeal, the PTO applicant appealed a section 101 rejection on two sets of claims, where a system claim (claim 1) recited a "computer-implemented system" and a method claim (claim 9) recited a "computer-implemented method for simulating operation of a physical system...
USPTO: Reexaminations May Not Be "Specially Expedited"
Posted on July 07, 2008Reexamination Control No. 95/008,972: After a Reexamination Request was granted on US Patent 5,253,341, the patentee filed a petition to suspend the rules under 37 C.F.R. 1.183 so that the reexamination proceedings would be handled on a "specially expedited basis" in light of concurrent litigation, and in light of the fact that an earlier reexamination on the same patent took seven years...
Congress Prepares Fix for BPAI Appointments
Posted on July 07, 2008Recently, House IP subcommittee chairman Howard Berman introduced H.R. 6362, which would amend title 35 to "provide that the Secretary of Commerce, in consultation with the Director of the United States Patent and Trademark Office, shall appoint administrative patent judges and administrative trademark judges, and for other purposes...
A Different Kind of Battle At the USPTO Over 35 U.S.C. 101
Posted on June 27, 2008Back in 2005 (just prior to today's "great patentable subject matter debate"), a certain buzz was created when Andrew Knight began promoting the idea of "storyline patents" and followed up by filing applications (e.g., 10/722,463) in pursuit of his goal of establishing a new form of intellectual property...
Disclaimer From Familial Patent Nullifies Infringement
Posted on June 25, 2008Heuft Systemtechnik GMBH v. Industrial Dynamics Co. (07-1417) June 25, 2008 (noprecedential)Industrial Dynamics Co. (IDC) appealed a district court claim construction which led to a finding of infringment. The patent-in-suit was a divisional application directed to a "method and apparatus for inspecting rotating container," having a thin prosecution history...
Company Files Defamation Action Against Patent Holding Company
Posted on June 23, 2008Cognex Corporation v. VCode Holdings, Inc. (a.k.a. Acacia), No. 06-cv-01040, (D. Minn.)Cognex has established a reputation for aggressively defending itself against patent infringement from holding companies. Back in 2005, the company successfully defended itself against Lemelson and invalidated 14 patents asserted in the action...
CAFC: Misrepresentation Does NOT Have to Bear on Patentability For Inequitable Conduct
Posted on June 20, 2008Scanner Tech. Corp. v. ICOS Vision Systems Corp. N.V. , (2008-1081), June 19, 2008During prosecution, Scanner became convinced that a new product launched by ICOS was infringing on the claims of a patent application. Accordingly, Scanner filed a Petition To Make Special, pursuant to MPEP 708...
Thursday Shorts: Asia Patent White Papers, EPO Pendency Continues To Grow
Posted on June 19, 2008Chinese Patent Statistics - research and analytics company Evaluserve released a white paper titled "Patenting Landscape in China - History, Growth and Utility Model", which discusses various statistics on Chinese patent practice, as well as strategies utilized by patent filers:Some Chinese companies have adopted a strategy that involves filing 10-year patent applications and 20-year patent applications for the same invention on the same day, thereby ensuring the same priority date with the SIPO...
USPTO: PCT Fees Going Up
Posted on June 18, 2008From the latest Federal Register:Title 37 of the Code of Federal Regulations, part 1, is proposed to be amended as follows:Section 1.445: Section 1.445(a)(1) is proposed to be amended to change the transmittal fee from $300.00 to $415.00. Section 1.445(a)(2) is proposed to be amended to change the search fee from $1,800...
Obama On the USPTO: Reading from the CPF Playbook?
Posted on June 17, 2008Excerpt from interview with Senator Obama from the WSJ:As I mentioned during the speech, there may be programs that no longer work. There's certainly all kinds of previsions [sic] in our tax code that are antiquated and are not spurring economic growth...
Study: 53% of Pharma Patents Approach Expiration Before Litigation Strategies are Implemented
Posted on June 17, 2008A new study developed by market intelligence firm Cutting Edge Information reveals that the majority of pharmaceutical companies are waiting until their patents on drugs are nearly run out before they start to work on patent litigation strategies.According to the study:? 66% do not begin counter-generics planning until at least two years after product launch...
Danforth: FTC Patent Reform Is Needed
Posted on June 16, 2008Last month, John Danforth, former general counsel of Rambus and legal adviser published an article in the Legal Times that was highly critical of the FTC's "much ballyhooed but misguided antitrust case against Rambus Inc." that was recently overturned by the DC Circuit (see earlier 271 coverage here)...
Dudas Issues Letter to Congress In Response to Berman's Questions
Posted on June 12, 2008On April 29, Howard Berman, Chairman, Subcommittee on Courts, the Internet, and Intellectual Property sent a letter to USPTO Director Jon Dudas, asking very direct questions on USPTO management and practice (see earlier 271 coverage here).Dudas has now responded, and his response and supporting documentation have been posted on Greg Aharonian's website (link - ...
Wednesday Shorts: Patent Tools, Enforcement Company Updates, and More
Posted on June 11, 2008More Patent Tools (Part 1): Rolf Claessen, who is a partner at the German firm von Kreisler Selting Werner, and proprietor of the wonderful IPNewsflash website, has added a patent PDF download tool covering numerous countries. To try it out, click here...
USPTO Issues Controversial New Rules For Patent Appeals
Posted on June 10, 2008"Smithers had thwarted my earlier attempt to take candy from a baby, but with him out of the picture, I was free to wallow in my own crapulence."- Mr. Burns, episode #2F20, "Who Shot Mr. Burns? (Part 2)"Like it or not, they're here - the new BPAI procedures for ex parte appeals...
Supreme Court Reverses CAFC in Quanta: Method Patents Exhaustible
Posted on June 09, 2008Quanta Computer, Inc. v. LG Electronics, Inc., No. 06-937, June 9, 2008.LGE holds a number of patents related to computer technology. LGE licensed the patents to Intel, authorizing them to manufacture and sell microprocessors and chipsets using the LGE Patents...
CAFC: Extrinsic Evidence OK When Patentee Chooses Inconsistent Claim Language
Posted on June 05, 2008Helmsderfer v. Bobrick Washroom Equipment, Inc. (2008-1027), June 4, 2008The patentee appealed the claim construction for the term "partially hidden from view" on a patent related to baby diaper changing stations. The district court construed the term to mean "hidden from view to some extent but not totally hidden from view...
(Another) Challenge to the Constitutionality of BPAI Appointments
Posted on June 04, 2008Aldor Solutions Corp. v. Dudas, (1:08cv897), U.S. District Court for the District of ColumbiaPlaintiffs are the co-owners of patent application Serial No. 09/694,095, ("the '095 application") titled "On-line System For Memorial, Legacy, Funeral and Remembrance Arrangements, Services and Transactions...
Patent Enforcement Companies Keep Trying to Skirt eBay v. MercExchange
Posted on June 04, 2008Say what you will about patent enforcement companies (i.e., "patent trolls", "non-practicing entities", etc.), but they certainly aren't short on creative ideas when it comes to getting new angles on patent litigation strategy. Since the Supreme Court's decision in eBay v...
USPTO Looks to Revise Fees for FY 2008
Posted on June 03, 2008SUMMARY: The United States Patent and Trademark Office (Office) is proposing to adjust certain patent fee amounts for fiscal year 2009 to reflect fluctuations in the Consumer Price Index (CPI). The patent statute provides for the annual CPI adjustment of patent fees set by statute to recover the higher costs associated with doing business...
FTC Looking to Break Down "Patent Walls" For Standardized Technologies
Posted on June 03, 2008Federal Trade Commission (FTC) Commissioner J. Thomas Rosch presented a speech before the Newport Summit on Antitrust and Economics on May 31, where he discussed the effect of "patent trolls", standardized technologies, and potentially anticompetitive "patent walls", where[A] firm independently develops and manufactures a product that competes in what constitutes a relevant market for antitrust purposes, and then files multiple patent applications covering certain features of the product and the patents issue...
CAFC: DJ Plaintiff Must Take "Significat, Concrete Steps To Conduct Infringing Activity" To Satisfy MedImmune Test
Posted on May 29, 2008Cat Tech LLC v. TubeMaster, Inc. (2007-1443), May 28, 2008TubeMaster developed a method of putting catalyst into reactor tubes using loading devices. Tube Master designed four different configurations for its devices, and has generated detailed computer drawings drawings for each of its configurations...
CAFC: Notice Must Be Provided For JMOL When Factual Disputes Exist
Posted on May 28, 2008Southwestern Bell Telephone Co. v. Arthus A. Collins, Inc. (2007-1577), May 27, 2008 (nonprecedential)After a pretrial hearing, both parties briefed the district court on issues of prosecution history estoppel. The next day, in a telephone conference, the district court granted Southwestern Bell's motion in limine on prosecution history estoppel and also granted JMOL that one of the claim limitations ("randomly receive") was not literally present in the accused device...
Singapore "Image Linking" Patent Causing Waves In The Web Community
Posted on May 27, 2008Over the weekend, the IT blogosphere exploded (along with my inbox) over news of Singapore-based Vuestar Technologies' claim that they hold "significant Technology Patents focusing on Internet searching via visual images, identity security and copyright assets...
Another Critical Study on Inter Partes Reexamination
Posted on May 21, 2008Heralded as an "alternative to litigation," recent research strongly suggests that Inter Partes Reexamination has become "an augmentation of litigation strategy rather than an alternative" (more than half (52%) of patents in inter partes re-exams are known to be in litigation during that time)...
Protective Orders and Reexamination Requests (W.D. Wis.)
Posted on May 20, 2008In an interesting order from Silicon Graphics v. ATI Technologies, Inc., No. 06-cv-611-bbc (W.D. Wis., April 22, 2008), a situation arose where the defendants and the plaintiff expressly agreed to a protective order to limit the use of confidential information related to the patents-in-suit...
Weekend Shorts - CAFC Statistics, China, Patent Reform, and New IAM Publications
Posted on May 18, 2008State of the Federal Circuit: On May 15, 2008,Chief Judge Michel addressed the Federal Circuit Judicial Conference and gave a "State of the Court" speech on the CAFC. The transcript, along with some statistical charts, may be downloaded here (link). Some of the interesting factoids include:? Despite over 100 Petitions for Rehearing En Banc each year (slide), the CAFC grants approximately zero to one each year...
CAFC: Lack of Diligence Does Not Convert PTO Error Into An Applicant Error
Posted on May 14, 2008E.I. DuPont v. MacDermid Printing Solutions (2007-1568), May 14, 2008When DuPont asserted its patent and sought a preliminary injunction, MacDermid countered that the patent was invalid for public use prior to the 102(b) critical date. While DuPont initially conceded the critical date, a closer examination discovered that the patent stemmed from a provisional application that was listed in the application, but priority was not properly claimed due to a PTO oversight...
Congress Requests Answers From The USPTO; Rough Times Ahead?
Posted on May 13, 2008"The ancient Romans had a tradition: whenever on of their engineers constructed an arch, as the capstone was hoisted into place, the engineer assumed accountability for his work in the most profound way possible: he stood under the arch."-- Michael ArmstrongOn April 29, Howard Berman, Chairman, Subcommittee on Courts, the Internet, and Intellectual Property shot off a letter to USPTO Director Jon Dudas, asking some rather pointed questions on USPTO management and practice...
Updates on Congressional IP/Legal Legislation
Posted on May 12, 2008House Passes H.R. 4279 - Last Thursday, the House passed H.R. 4279, titled "Prioritizing Resources and Organization for Intellectual Property Act of 2008" (PRO-IP). While patent reform continues to stumble, copyright protection is getting stronger than ever...
Friday Shorts: Bilski, Troll Tracker, Patent Reform
Posted on May 09, 2008Bilski Oral Arguments Aweigh! Yesterday, the CAFC heard oral arguments for In re Bilski, No. 2007-1130 to consider what, and what is not, patentable subject matter. To listen to an MP3 of the oral arguments, click here.Eyewitness accounts are rolling in - over at the PLI Blog, Gene Quinn has a good play-by-play of the oral arguments (link)...
D.C. District Court Unleashes On Patent Holding Company
Posted on May 08, 2008In Re Pabst Licensing GMBH & Co. KG Litigation, District Court For the District of Columbia, May 6, 2008, Misc. Action No. 07-493 (RMC)A spat broke out between the parties during discovery that resulted in an order levying multiple sanctions against the patent holder, Pabst...
Thomson Reuters Publishes New Study on Patents and Innovation
Posted on May 07, 2008Thomson Reuters recently published two issues of World IPToday, analyzing global patent activity and technology innovations for2007. The first report, "World IP Today: A Thomson Reuters Report On Global Patent Activity in2007" highlights patent output from the G8 countries (Canada, France, Germany,Italy, Japan, Russia, the United Kingdom and the United States) plus Chinaand South Korea...
CAFC: Unasserted/Cancelled Claims are "Probative Evidence" of Embodiments Covered
Posted on May 06, 2008PSN Illinois, LLC v. Ivoclar Vivadent, Inc. (2007-1512)After reexamination, PSN was left with a single claim in a patent covering a method of fabricating porcelain veneers for teeth. The method recited the step of eroding away a "statute" of a tooth from a porcelain veneer restoration "leaving said restoration ready for mounting on said tooth...
USPTO / EPO / JPO Progress on "Common Application Format" For Expedited Examination
Posted on May 05, 2008The USPTO, EPO and JPO have been meeting for a while to establish an application format for expediated examination among the offices. Recently, the offices signed a "memorandum of understanding" that allowed a framework for applicants to prepare a single application in a common application format for acceptance in each of the three offices...
New Precedential KSR Decision From the BPAI
Posted on May 05, 2008Ex Parte Fu (Appeal 2008-0601), March 31, 2008In a somewhat unremarkable, yet meaningful decision, the BPAI upheld a 103 rejection on an application related to an electrostatographic imaging member having a charge transport layer containing a specified surfactant that reduces crystallization of the charge transport layer material...
NYT: Patent Reform "Boon To Lobbyists", Dudas Claims Applications Are Getting "Worse and Worse"
Posted on April 29, 2008In a new article, the New York Times discusses some divergent perspectives on the patent reform act, noting that over the last 15 months, In 15 months, the Coalition for Patent Fairness and the Coalition for 21st Century Patent Reform collectively spent $4...
CAFC Scolds PTO On Taking 3 Years To Deal With Appeal
Posted on April 29, 2008In Re Reuning (2007-1535), April 25, 2008 (nonprecedential)The applicants filed an application in 2001 under a petition to make special in order to accelerate examination. Two years later, the BPAI issued a first decision reversing the rejections on 2 claims, but sustaining the rejection to the other 64 claims, noting that "the appellants have not presented any patentability arguments for these claims...
New Study On Claim Construction Reversal Rates
Posted on April 29, 2008"Learn from the mistakes of others - you can never live long enough to make them all yourself"- John Luther With all the talk of claim construction and CAFC reversal rates, Professor David Schwartz from the John Marshall Law School set out to see if there was any empirical data that could signal a possible solution to the courts and the claim construction conundrum (the "Safire-esque" sound to this phrase is purely coincidental)...
N.D. Ill. Stays Global Patent Holdings Infringement Claim
Posted on April 28, 2008Global Patent Holdings LLC v. Green Bay Packers (00-C-4623), April 23, 2008Back in July of 2000, Global Patent Holdings (GPH) (formerly Techsearch LLC) filed suit against numerous defendants alleging infringement of U.S. patent No. 5,253,341, which claimed an improved method and apparatus for downloading compressed audio and visual data as well as other graphical information from a remote server to an end user station for the purpose of decompressing and displaying the data...
Appeals Court Throws Out FTC Ruling Against Rambus
Posted on April 22, 2008Earlier, the Federal Trade Commission determined that Rambus, while participating in a standard-setting process on DRAM memory, deceptively failed to disclose to the standard setting organization (JEDEC) the patent interests it held in four technologies that were standardized...
Any Idea What This May Be?
Posted on April 22, 2008I just noticed this from the OMB:AGENCY: DOC-PTO RIN: 0651-AC19 TITLE: Changes to Implement Electronic Patent Publication STAGE: Proposed Rule ECONOMICALLY SIGNIFICANT: No RECEIVED DATE: 03/06/2008 LEGAL DEADLINE: None I originally thought I was out of the loop on this one, and then I couldn't find any notices from the PTO, and no chatter from the blogosphere...
CAFC Reverses Key Parts of Judgment in Finisar v. DirecTV
Posted on April 21, 2008Finisar Corp. v. The DirecTV Group (2007-1023) April 18, 2008 (link)By a jury verdict, the E.D Texas found that DirecTV willfully infringed Finisar's U.S. Patent No. 5,404,505 (the ?505 patent), and the jury awarded $78.9 million in reasonable royalty damages, and $25 million in enhanced damages...
Patent Reform on Wobbly Legs in Senate
Posted on April 20, 2008On Friday, the Wall Street Journal ran an article claiming that S. 1145 has hit an "impasse" at the Senate, and quoted Pennsylvania's Sen. Arlen Specter as saying "I think we need more time to get it right." More telling however, was a quote from Senate Judiciary Chairman Patrick Leahy, who spoke of the bill in past tense, saying that the bill "was a missed opportunity," adding that the dispute over S...
More on Patent Revenue and Distribution
Posted on April 20, 2008Last week, Peter Detkin, founder and Vice-Chairman of Intellectual Ventures (IV) was quoted as saying that small inventors only received the "crumbs" when it came to patent licensing revenue. Apparently, this statistic was generated by IV, but has been picked up from the likes of Acacia Research, which claims in this presentation from March 2008 that only 1% of patent revenue and distribution is received by small companies, individual inventors, universities and research labs...
Interesting Statistic Cited By Peter Detkin
Posted on April 15, 2008The Embedded Systems Conference is taking place today and tomorrow at the Fairmont Hotel in downtown San Jose, California. Today's IP Symposium included Peter Detkin, founder and Vice-Chairman of Intellectual Ventures, as a keynote speaker. EDA DesignLine reported on the symposium and attributed the following to Detkin (link):He [Detkin] said that the mission of the patent system is to encourage and reward inventions and disclosures...
New Pre-First Action Pilot Program Announced at the USPTO
Posted on April 14, 2008From the PTO:The United States Patent and Trademark Office (USPTO) is initiating a pilot program in which, in certain art areas, applicants who comply with the requirements set forth in this notice will receive the results of a prior art search conducted by the examiner, via a condensed Pre-Interview Communication, and then be permitted to conduct an interview with the examiner to discuss the cited prior art references, before the examiner issues an Office action on the merits that sets forth the rejections...
CAFC: Patentee Has Burden To Establish Priority of CIP
Posted on April 14, 2008PowerOasis Inc. v. T-Mobile USA, Inc., (2007-1265), April 11, 2008 (link)A CIP patent asserted by PowerOasis was challenged in the district court over prior art that became available before the CIP, but after the filing date of the parent patent. After finding that the parent application did not provide support for the subject matter claimed in the CIP (i...
Update on Precedential Opinions from the BPAI
Posted on April 10, 2008Since the beginning of the year, the PTO has released two new precedential decisions:Ex Parte Letts, Appeal 2007-1392, January 31, 2008 (link)Instead of separately arguing each claim under a subheading as required by 37 C.F.R. § 41.37(c)(1)(vii), the Appellant in this case generally argued features without making specific references to the claims...
Cracks Forming in the Passage of Patent Reform Act
Posted on April 09, 2008Today the Congressional Quarterly (CQ) is reporting that Senator Arlen Specter (R-PA) is pulling his support for S.1145, stating that he "cannot join" his colleagues "on some parts of the bill, citing apportionment of damages as a "principle sticking point...
Who at the USPTO Will Fix Inter Partes Reexaminations?
Posted on April 09, 2008The American Inventors Protection Act, signed into law on November 29, 1999, made a number of landmark patent reforms, including the establishment of an inter partes reexamination procedure.Initially shunned by 3rd parties, inter partes reexamination practice has grown considerably in the last few years: in 2003, only 23 requests were filed in the USPTO; in 2007, 126 requests were filed (see PTO statistics here)...
AIPLA Releases Latest Model Patent Jury Instructions
Posted on April 08, 2008In light of changes to patent law since the last revision (2005), the AIPLA recently published its Model Patent Jury Instructions. The current revision includes case law throughDecember 31, 2007.Download a PDF copy here (link)Download Word copy here (link)Hat Tip: I/P Updates
Reports Are In on Ocean Tomo's Record-Breaking Patent Auction
Posted on April 07, 2008Ocean Tomo recently announced that the Spring 2008 Live Intellectual Property Auction, held on April 2nd at The Ritz-Carlton San Francisco, had cumulative sales totaling $19,629,500, with an average sale price per lot of $370,368. From Ocean Tomo's press release:In a historic moment, Lot 25, a notable IP portfolio owned by the subsidiary of a world-renowned multi-national corporation, sold for $6,600,000, setting a new world record for the highest selling price for a patent lot at a multi-lot live IP auction...
Friday Shorts
Posted on April 04, 2008Standard for Invalidity Tested at SCOTUS: In Microsoft Corp. v. z4 Tech., Microsoft argued that z4's patent was invalid under 102(g), and sought a lowered standard of invalidity for art that was not considered by the PTO. Relying partly on the dicta from the SCOTUS KSR decision ("[w]e nevertheless think it appropriate to note that the rationale underlying the presumption [of validity] - that the PTO, in its expertise, has approved the claim - seems much diminished here"), Microsoft is asking the SCOTUS to formally take a stance on the presumption...
Commerce Department Renews Support for AQS's in S. 1145
Posted on April 03, 2008Carlos Gutierrez from the Department of Commerce sent a letter today to Arlen Specter, expressing "strong support" for a "key element" of S. 1145: Applicant Quality Submissions (AQS).The Administration strongly supports the AQS provision in the bill in its current form and believes that enactment will prove to be the strongest step toward improved patent quality...
*** USPTO Continuation Ruled Dead (For Now) ***
Posted on April 01, 2008Judge Cacheris from the ED Va. granted GSK?s and Tafas?s Motions for Summary Judgment finding that the PTO?s "hard limit" on the number of continuation applications and claims per patent were excessive extensions of PTO authority:Because the USPTO?s rulemaking authority under 35 U...
271 Blog On Vacation
Posted on March 30, 2008Although I have been remiss in keeping everyone posted, the 271 Blog has been off on vacation for the last week. I anticipate being back on Wednesday, and will resume posting shortly thereafter. See you soon!- Peter
CAFC Chides Counsel, Court, On Claim Construction Conduct
Posted on March 19, 2008LSI Industries, Inc. v. ImagePoint, Inc., (2007-1292), March 19, 2008In this nonprecedential case, the CAFC reversed almost every disputed claim term construed by the district court which was the basis for summary judgment of noningfringement. During litigation, the district court openly admitted it was in over its head with the patent case, and reached out to counsel for guidance...
PTO Budget Amendment Approved
Posted on March 18, 2008From the Congressional Daily (link): The Senate unanimously approved last week an amendment to the fiscal 2009 budget resolution condemning the diversion of funds from the Patent and Trademark Office.When PTO funds are diverted for other purposes, the office's examiners cannot approve patents as quickly and that hinders the economic benefits these innovations could potentially bring, according to Sen...
Gor Blimey! Software Patent Rejection Gets Pipped at the Post (UK-IPO)
Posted on March 18, 2008Lest anyone think the USPTO is the only office having issues with patentable subject matter, the UK-IPO is now in full-fledged "struggle" mode trying to conform the Office's policy on software patents with that of the EPO.The UK Patents Act is aligned with the European Patent Convention (EPC)...
The Latest From Delaware
Posted on March 17, 2008The good people at the Delaware IP Law Blog have picked up steam after a quiet February and are back with some great posts. Last week, there was the interesting observation that, as a per cent of the civil case load, Delaware outranks the E.D. Texas and E...
Latest Amendments to S.1145
Posted on March 14, 2008The Senate has released the latest amendments to the Patent Reform Act in advance of Senate Floor Debate:Interlocutory appeals: limits interlocutory appeals of claim construction orders to those which the district court determines have a reasonable basis for disagreement, and the appeal may advance the ultimate termination of the litigation;Best Mode amendment: best mode would be considered for obtaining a patent, but not for invalidating;Reexamination amendment: restores third-party reexamination;The "CAFC Telework" amendment: ensures that CAFC judges that do not reside within a 50-mile radius of Washington DC use chambers of an existing courthouse in the district where they reside...
Latest Ex Parte Reexamination Statistics from the PTO
Posted on March 14, 2008The latest statistics on Ex Parte Reexamination (through December 2007) have been released by the PTO. As expected, the number of reexamination requests continue to climb:2002 - 272 filings2003 - 392 filings2004 - 441 filings2005 - 524 filings2006 - 511 filings2007 - 643 filings2008 - 165 filingsThe success rate for requestors has not changed, and continues to favor requestors...
PWC Releases 2008 Patent Damages Study
Posted on March 13, 2008Aron Levko, together with Vincent Torres and Joseph Teelucksingh have released the 2008 PricewaterhouseCooper Patent Litigation Study, and it appears from the study that previous trends in patent litigation have continued into this year. Specifically, the study found that:? The annual median damages award since 1995 has remained fairly consistent, when adjusted for inflation...
Patent Troll Tracker Litigation Update
Posted on March 12, 2008Joe Mullen, reporter at IP Law & Business magazine and author of the Prior Art Blog has some additional information on the Ward/Albritton lawsuit against Frenkel and Cisco (see 271 Blog post below). As many have noticed already, the Ward complaint "making the rounds" is an amended complaint...
*TROLL TRACKER SUED*
Posted on March 11, 2008"I am altering the deal. Pray I don't alter it any further" - Darth Vader, Empire Strikes Back (1980)John Ward v. Cisco Systems, Inc. (2007-2502-A), 188th District, Gregg County TexasOn February 27, John Ward filed a complaint in district court alleging defamation against Richard Frenkel (aka the Patent Troll Tracker) and Cisco...
PTO Publishes Impact Analysis on "Alternative Claim Language" Proposal
Posted on March 10, 2008Examination of Patent Applications That Include Claims Containing Alternative Language (RIN 0651?AC00), March 10, 2007In August 0f 2007, the PTO issued a notice stating that Markush-type claiming and other alternative claiming formats were being restricted for practice before the PTO:The Office is proposing to revise the rules of practice pertaining to any claim using alternative language because patent applicants sometimes use Markush or other alternative format to claim two or more independent and distinct inventions and/or to recite hundreds, if not thousands, of alternative embodiments in one claim...
CPF Ups the Ante on Patent Reform, Spells Out Damage Apportionment
Posted on March 09, 2008On March 5, the Coalition for Patent Fairness (CPF) issued a letter to Senators Leahy, Specter and Hatch proclaiming that, not only is damage apportionment necessary, apportionment considerations need to be codified to provide a template for judges to instruct juries:A serious and continuing problem in the calculation of a reasonable royalty is the lack of adequate jury instruction...
USPTO: The Toughest Place to Get a Patent?
Posted on March 06, 2008Earlier, the 271 Blog reported on USPTO Commissioner Dudas' testimony before Congress (link), where he commented that the allowance rate for applications has dropped to 44%. As recently as November 2007, the USPTO indicated that allowance rates were at 51% (link)...
W.D. Wis.: "A Few Examples" Of Allegedly Infringing Products is Insufficient Notice
Posted on March 05, 2008Taurus IP, LLC v. Ford Motor Company, Western District of Wisconsin, Case 3:07-cv-481, February 4, 2008Taurus launched a patent infringement suit against 3 car companies, alleging infringement of their patent relating to a computer system for managing sales information...
Joff Wild Responds to "End Software Patents"
Posted on February 29, 2008Understandably, great exception was taken to the bombastic claim that the software industry spends $11.4 billion dollars on patent litigation. From this morning's post:Clearly, what the [End Software Patents] authors have done is take 55 [the number of cases alleged to be filed each week], multiply it by 52 [weeks] and then multiply that figure (2860) to get the $11...
Costs of Patent Prosecution
Posted on February 28, 2008When people decide to patent, the inevitable question of "how much will it cost?" comes up. While not everyone has a handy copy of each AIPLA cost survey, Alan Kasper, First Vice-President of the AIPLA, provided a brief glimpse into the costs involved in his testimony before Congress:Average Cost of Preparation:? Preparation and filing of an original application of minimal complexity (10 page specification, 10 claims) = $8,548...
Dudas and Others Testify Before Congress
Posted on February 28, 2008Yesterday, the Subcommittee on Courts, the Internet, and Intellectual Property Oversight held a hearing on the USPTO (link). The witness list included Jon Dudas, who published his remarks on the Committe on the Judiciary website.An interesting comment appears on the second page of Dudas' testimony:Our patent examiners completed over 362,000 patent applications in 2007, the largest number ever, while maintaining for the second year in a row an examination compliance rate1 of 96...
"End Software Patents" Launches With Website and Report
Posted on February 28, 2008Coming in fashionably late to the "great patent reform debate", this organization (covered previously here) "will initially focus on two approaches: 1) assisting corporations that choose to challenge software patents in the courts and at the U.S. Patent and Trademark Office (USPTO) on the basis that patents for software and designs with no physically innovative step have no legal validity, and 2) public education aimed at passing laws to protect software from patent law...
District Court Uses eBay to Enjoin Patentee From Enforcing Patent
Posted on February 27, 2008Unitronics v. Samy Gharb, Civil Action No. 06-27 (RMC), District Court for the District of Columbia, January 30, 2008After receiving letters accusing them of infringement, Unitronics filed for a declaratory judgment seeking a ruling of noninfringment, patent invalidity, and a judgment that Gharb had intentionally interfered with Unitronics? contractual relations...
Tempering (Over) Zealous Advocacy - Courts Overturn Verdict, Sanction Counsel $10M
Posted on February 26, 2008"There are only two tragedies in life: one is not getting what one wants, and the other is getting it."- Oscar WildeMedtronic Navigation Inc. v. Brainlab, Civil Action No. 98-cv-01072-RPM, District of Colorado, February 12, 2008When judges become infuriated over hyper-aggressive litigation, they issue sanctions, and even set aside verdicts...
Unmasked: The Patent Troll Tracker Steps Forward
Posted on February 25, 2008Less than 6 months after having a bounty placed on his identity (recently upped to $15k) by Ray Niro, the Patent Troll Tracker has stepped forward and revealed himself - he is none other than Rick Frenkel, Director of Intellectual Property at Cisco Systems, Inc...
Bilski Presentation Tomorrow in Chicago
Posted on February 25, 2008Tomorrow I'll be a featured speaker at the Chicago Bar Association's (CBA) Section of Intellectual Property Law, discussing the upcoming Bilski case and the state of patentable subject matter.The presentation should start shortly after 12:00PM, and is expected to last about an hour (MCLE Credit is available)...
CAFC Creates Potential Conflict in De Nove Review of MPF Claims
Posted on February 25, 2008Aristocrat Tech. v. Multimedia Games, Inc. (2007-1375), February 22, 2008, Non-PrecedentialAristocrat appealed the order from the Central District of California entering summary judgment of invalidity for indefiniteness of their patent. Multimedia filed a motion for summary judgment arguing that a disputed claim was invalid for indefiniteness, because the specification of the patent failed to disclose necessary structure corresponding to several of the means-plus-function limitations...
Thomson Publishes Patent Focus Report for 2008
Posted on February 21, 2008Joff Wild, editor of Itellectual Asset Magazine, author of the IAM Blog, and contributor to Thomson's Knowledge Newsletter, has issued the "Patent Focus Report for 2008." In the report, Joff looks at the patent activity for China, Europe, Japan, India and the U...
ND Cal.: Late Claim for Inventorship Barred by Laches
Posted on February 20, 2008Mark Moore v. Broadcom Corp. (c06-05647), February 12, 2008While working at Intermec, Inc., inventor Beard filed for a provisional application in 1997 that was ultimately converted and issued as a U.S. patent. Right around the same time, Beard was collaborating with Moore to start a new venture, and they discussed various concepts that were subsequently patented...
KSR Invades Preliminary Injunctions at the CAFC
Posted on February 19, 2008Erico Int'l Corp. v. Vutec Corp. (2007-1168) February 19, 2008After surviving reexamination, Erico alleged that their J-Hook patent was being infringed by the defendants. While one of the defendants assured Erico that they would stop selling the allegedly infringing product, they "sold the very products it promised to retain and continued to manufacture and sell knock off J-Hooks...
Monday Shorts - Business Method Challenge at the CAFC
Posted on February 18, 2008Bye Bye Business Methods? The CAFC decided, sua sponte, to order an en banc rehearing of In Re Bilski. The following 5 questions were presented:1. Whether claim 1 of the 08/833,892 patent application claims patent-eligible subject matter under 35 U.S...
Study: "Tough" IP Enforcement Not Only Keeps Competitors in Check, But Also Your Employees
Posted on February 14, 2008"Don't let your employees do to you what you did to your former boss"- Golden Rule attributed to Roger Borovoy, former GC at IntelWith all the talk about "spreading innovation", one topic that doesn't get much coverage is one of the most common ways in which knowledge gets diffused throughout industries - employee defections...
Once Again: Claim Amendment Sinks DOE
Posted on February 12, 2008International Rectifier Corporation v. IXYS Corp. (2007-1063), September 11, 2007Earlier, this case was tried before the CAFC, where the court vacated-in-part and reversed-in-part a summary judgment of direct infringement on patents relating to MOSFET technology...
Know When to Walk Away . . . And Know When to Run
Posted on February 12, 2008Thomas & Betts Power Solutions v. Power Distribution, Inc., Civil Action No. 3:O7CV167-HEH, E.D. Va., February 8, 2008Thomas & Betts (T&BPS) filed a declaratory judgment action against Power Distribution (PDI), claiming patent noninfringement and invalidity...
In Re Nuijten: En Banc Denied
Posted on February 11, 2008In Re Petrus A.C.M. Nuijten, (2006-1371) Fenruary 11, 2008In a 9-3 decision, the CAFC denied Nuijten's petition for panel rehearing and rehearing en banc. Judges Linn, Newman and Rader dissented from the denial, stating that the law surrounding 35 U.S...
Tafas v. Dudas: Continuation Rules Oral Argument Recap
Posted on February 10, 2008On Friday, Judge Cacheris heard oral arguments from Tafas, GSK and the USPTO on three motions for summary judgment regarding. As was expected, the blog coverage was fast and furious, but ultimately, Judge Cacheris decided to take the matter "under advisement," agreeing to issue an opinion at a later date, noting that "there is a lot of paper to consider" (see the court's minute entry here)...
E.D. Va: Contents of Inequitable Conduct Must Be Stated With Particularity
Posted on February 07, 2008Applied Interact LLC v. Continental Airlines, Inc., Civil Case No. 2:07cv341 (E.D. Va., January 17, 2008)Applied Interact ("AI") filed a complaint against Continental and MN Airlines alleging that they infringed 5 patents "by [their] unlicensed use of printing boarding passes over the Internet," and infringing another patent "by [their] unlicensed use of sweepstakes conducted over the Internet...
Close Call at the BPAI - Near-Precedential Decision Sinks Computer Claim Under Utility Requirement
Posted on February 06, 2008Ex Parte Nehls et al., Appeal 2007-1823, Decided: January 28, 2008After a busy Summer in 2007, the BPAI has been (ominously?) quiet as of late, issuing no precedential opinions since Ex Parte Catan in July 2007, and only issuing 4 informative opinions during the same time...
Patent Reform - Letters Ho!
Posted on February 05, 2008Now that S.1145 is heading into the final stretch, more and more position letters are being sent to congressional members and fellow practitioners, voicing support and opposition to specific provisions of the Act.Bush Administration Letter:Yesterday, the Assistant Secretary of Commerce for Legislative and Intergovernmental Affairs Nathaniel F...
Ex-PTO Commisioners Weigh in on Patent Reform
Posted on February 01, 2008Former Commissioners Gerald Mossinghoff & Stephen Kunin are preparing a position paper on various parts of the Patent Reform Act of 2007. In general, they support many of the provisions of the Act, while expressing their reservations on other provisions...
CAFC: Damage Apportionment in Action
Posted on January 31, 2008American Seating Company v. USSC Group, Inc. (2007-1112) January 39, 2007USSC appealed a jury verdict which awarded American Seating damages for patent infringment relating to tie-down wheelchairs for mass transit transportation. Likewise, American Seating was appealing a JMOL that reduced damages due to convoyed sales being improperly included in the calculations...
Tensions Rise as Patent Reform Hits "The Final Stretch"
Posted on January 30, 2008On Monday, various companies, industry groups and universities are reported to have met to discuss the Patent Reform Act, where Patrick Leahy, chairman of the Senate Judiciary Committee, appeared at the meeting. Hewlett Packard's GC Mike Holston, who spoke with Reuters recently about the meeting, commented that "we're 95 percent of the way there ...
N.D. Ga.: Supreme Court's Twombly Decision Doesn't Affect Pleadings in Patent Cases
Posted on January 29, 2008CBT Flint Partners v. Goodmail Systems, Inc. (1:07-CV-1822-TWT) December 14, 2007CBT filed its complaint against Goodmail Systems and other parties alleging infringement of patents relating to methods for billing a fee to a party initiating an e-mail communication when the party is not on an authorization list...
CAFC Denies Patentee "Benefit of Ambiguity", Holds Patent Invalid Under 112
Posted on January 28, 2008Halliburton Energy Services, Inc. v. M-I LLC (2007-1149), January 25, 2008Halliburton appealed a summary judgment decision from the ED Texas which held claims invalid for indefiniteness under 35 U.S.C. 112(2). Halliburton's patent relates to oil field drilling fluids that are fragile gels...
Friday Post - Ringtones from the USPTO
Posted on January 25, 2008The USPTO's website has a "Kids' Pages" section that contains a collection of sounds filed under a "Trademark Soundex." It's a collection of trademarked sounds in MP3 and WAV formats. According to some readers, the site makes for a good source of ringtones for your cell phone...
ISO Pushing Forward to Establish International Standard for Patent Valuation
Posted on January 25, 2008In an ambitious effort, the International Organization for Standardization (ISO) is moving forward to establish an international standard for patent valuation. According to an email letter from the project?s leader Alexander Wurzer (received yesterday at the IAM blog), the ISO is seeking participants to help in this projectThe International Organization for Standardization, ISO, has published a new work item proposal for the standardization of patent valuation processes...
FTC Asserts Antitrust Authority on Patent Licenses in Standardized Technologies
Posted on January 24, 2008In the Matter of Negotiated Data Solutions LLC (File No. 0510094)In an unusual move, the Federal Trade Commission decided in a 3-2 ruling that the FTC had the authority to file a complaint against company Negotiated Data Solutions ("N-Data") for allegedly charging "excess" licensing royalties for patents related to Ethernet technology in violation of Section 5 of the FTC Act...
USPTO Clarifies "Duty to Disclose" Language in Oaths/Declarations
Posted on January 23, 2008The USPTO has indicated that, in order to comply with 37 CFR 1.63(b)(3), an oath or declaration must acknowledge a duty to disclose information material to patentability as defined in 37 CFR 1.56:All oaths or declarations filed on or after June 1,2008, will be required to include the language expressly set forth in 37 CFR 1...
Reid: Patent Reform a Top Priority (Sort Of)
Posted on January 22, 2008Sen. Harry Reid made a statement today on the floor of the U.S. Senate, outlining Democrats? legislative priorities for the first session of 2008. While patent reform was mentioned as a "priority" in Reid's speech, it appears that it will have to wait its turn in the legislative agenda:Together we must address these growing challenges, both foreign and domestic...
Petitioner Seeks Certiorari on 11th Amendment Immunity on Patent Cases
Posted on January 22, 2008Biomedical Patent Management Corporation v. State of California (on cert.)States have become major players in the patent market. Many of the largest universities and research institutions are state-owned, and their inventions increasingly contribute substantial revenues to the state...
Is the Media Convincing the Public that the Patent System is "Broken"?
Posted on January 21, 2008It's been common knowledge that, generally, as a subject becomes more esoteric, the public relies more greatly on mainstream press coverage to formulate opinions. The recent media coverage of the U.S. patent system has caught the attention of scholars, practitioners and entrepreneurs, where commentators have increasingly referenced media coverage that casts the patent system in a negative light (e...
Article Looks at Effects of NPE Patents on Innovation
Posted on January 20, 2008Different entities use the patent system in different ways, depending on their respective business models. A recent paper, titled "Don?t Feed The Trolls?", written by economists John Johnson, Gregory K. Leonard, Christine Meyer and Ken Serwin, acknowledged this dynamic briefly and looked at the propriety of reforming the patent system to combat "trolling" or promoting other goals...
Quanta Oral Arguments: Will the Supreme Court Clarify the Exhaustion Doctrine?
Posted on January 16, 2008By Charles R. Macedo, Esq., Joseph Casino, Esq., Michael Kasdan, Esq., and Howard Wizenfeld, Esq. (link)Today, for the first time in half a century, the Supreme Court heard oral argument on the extent to which a patentee can license its patents to different members of the same sales chain for the same product...
Seagate Wipes Out Willfulness in the ND Illinois
Posted on January 16, 2008Trading Technologies International Inc. v. eSpeed, Inc. (04 C 5312), Jan. 3, 2008At trial, the court instructed the jury in light of the Seagate standard on willfulness. After trial, the jury rendered a verdict that defendants willfully infringed plaintiff's patents...
Draft Report of S. 1145 is (Unofficially) Available
Posted on January 15, 2008The IPO recently reported that a draft of the Senate Judiciary Committee's report on S. 1145 has been circulated in the Washington lobbying community and on the internet. The draft report provides some interesting insight on the bill approved by the Senate on July 19, 2007, but does not contain any new or compromise provisions...
IFI Releases Top Patent Filers For 2007
Posted on January 15, 2008IFI Patent Intelligence announced its annual compilation of the world?s top-ranked U.S. patent holders for 2007. According to the report, most of the top 25 companies attained fewer grants in 2007 than in 2006, with five exceptions including Samsung (up 11%), Microsoft (up 12% and now in the top 10), Denso Corp...
Patent Litigation Down? "Bollocks!" Says the Troll Tracker
Posted on January 14, 2008While early reports are indicating that the number of patent cases have dipped slightly in 2007, the Patent Troll Tracker has done what few others have done, and has looked at patent litigation for 2007 according to the number of defendants named in complaints...
EPO Proposes Punitive Fees for Excess Claims
Posted on January 13, 2008The European Patent Office has announced a new fee schedule that plans to go into effect on April 1, 2009. Under the new schedule, applicants filing more than 15 claims in an application will pay a fee of 200 ? ($ 287) per each excess claim. If the claims exceed 50, the "per-claim" fee jumps to 500 ? ($ 717) for each excess claim...
CAFC: Unindexed Document on FTP Server Questioned as Publicly-Accessable Prior Art
Posted on January 13, 2008SRI International v. Internet Security Systems, Inc. (2007-1065) January 8, 2008Prior to filing its patent application, SRI posted a document on an FTP server pursuant to ongoing research. The document contained subject matter that overlapped the filed application...
Picking and Choosing Your Battles in the ED Tex.
Posted on January 12, 2008Blackboard, Inc. v. Desire2Learn (9:06-CV-00155) December 3, 2007Heading into summary judgment, Judge Clark let the parties know that, when it comes to choosing issues to argue before the court, less can be more in most cases:The parties in this case have, between them, filed 48 motions, responses and replies in less than 14 months, which, including attachments and exhibits, comprise no fewer than eleven thousand pages...
W.D. Wisconsin - Disclosure in Specification Limits Claim Term, Vitiating Infringement
Posted on January 07, 2008Netcraft Corp. v. eBay, Inc. (3:07-cv:00254-bbc), December 10, 2007Netcraft Corporation owns several patents related to internet billing methods. It argued that Ebay, Inc. and PayPal, Inc. are infringing its patents by providing a third party payment system to customers wishing to make secure purchases over the Internet...
Patent Shorts
Posted on January 06, 2008USPTO Gets Funding Increase - the PTO has received a budget increase of about 9 percent for the government's 2008 fiscal year. The Office received the president's full funding request of $1.9 billion in a budget bill passed by the U...
Leahy, Hatch Address Patent Reform Act for 2008
Posted on December 28, 2007On December 18, Senators Patrick Leahy and Orrin Hatch briefly addressed the Senate version (S. 1145) of the Patent Reform Act during a floor speech. While the speeches were not very detailed, they suggested two things - (1) the Senate wants to move as quickly as possible on the Patent Refrom Act, and (2) the pending legislation will have numerous changes before it is put up for a vote...
Public Interest Groups File Amicus in *Support* Of Continuation Rules in ED Va.
Posted on December 26, 2007Eleven Public Interest groups recently filed a collective amicus brief in the E.D. Va., supporting the PTO's position on the continuation rule changes. The brief borrowed heavily from Lemley & Moore's 2004 paper titled "Ending Abuse of Patent Continuations" and the FTC's 2003 report to conclude that limiting continuations will help the public interest:To be sure, while there is indeed a strong public interest in supporting innovation, that does not mean that incentives for patents should always be raised without considering the corresponding cost to society...
Happy Holidays From the 271 Blog!
Posted on December 20, 2007U.S. Patent 7,258,592 - "Santa Claus visit kit" 1. A kit for creating an illusion that suggests a Santa Claus visit in a premises, said kit comprising:a) items revealed to a child audience comprisingi) a displayer Christmas diorama that, when assembled, at least partly bounds a region in which small items can be placed, said diorama having a plurality of panels, a first image being imprinted on one of said panels; ii) amusement items for use by at least a member of said child audience in carrying out steps that said child audience is invited to believe will assist Santa Claus in making said visit; and b) items at least temporarily concealed from the child audience, said concealed items comprising means for making boot print resembling marks to mark an illusionary trail of Santa Claus in said premises and a card having a second image, the second image being similar to the first image but also containing a representation of Santa Claus...
Litigation Statistics Suggest China's IPR Progressing for Plaintiffs
Posted on December 19, 2007Will Lewis, student at the University of San Diego School of Law, engaged in some recent number-crunching to get a sense on the state of IP enforcement in China. Basically, Lewis took IP cases from the Beijing Courts, Guangzhou Intermediate People's Court, Jiangsu Courts, and Zhejiang Courts, segregated cases having domestic-only parties from cases having at least one foreign entity, and tabulated the outcomes of the cases...
ED Va.: Continuations Count as "Original Applications" For the Purposes of the AIPA
Posted on December 18, 2007Cooper Technologies Co. v. John W. Dudas (1:07cv853) (November 30, 2007)Cooper sued for infringement on two patents, where one patent (filed in 2003) was the last of a series of continuations dating back to 1994. The defendant filed an inter-partes reexamination request with the PTO, seeking to invalidate the continuation patent...
USPTO: Telework Is the Answer
Posted on December 18, 2007Deborah S. Cohn, acting PTO chief administrative officer, writes in the Federal Times:We have seen that a successful telework program can result in greater employee productivity and performance, reduced traffic congestion and air pollution, and reduced real estate costs...
Study Shows USPTO Backlog Is Tied More to Non-Final Actions, and Not Continuations
Posted on December 14, 2007George Mason University Assistant Professor of Systems Engineering & Operations Yifan Liu and J.D. Candidate Ayal Sharon reviewed the backlog problem at the PTO, and applied a "queueing theory" analysis to filings to determine where the problems may lie...
AUTM Releases Report on University Tech Transfer
Posted on December 13, 2007The Association of University Technology Managers (AUTM) has released its latest survey on technology licensing and related activity for U.S. academic and nonprofit institutions and technology investment firms.According to the report, university tech transfer is booming...
OMB Approves IDS Rule Changes for PTO
Posted on December 12, 2007The OMB completed its review of the IDS Rules and published its approval on RegInfo.gov (link). From the website:Title: Changes to Information Disclosure Statement Requirements and Other Related MattersAbstract: The U.S. Patent and Trademark Office (Office) amends its regulations on information disclosure statement (IDS) requirements and other related matters to improve the quality and efficiency of the examination process...
Applicants Question PTO's Focus on "Compact Prosecution" In Upcoming Reform Measures
Posted on December 11, 2007One of the most important aspects of patent prosecution and application pendency is the the concept of "compact prosecution", which is described in MPEP § 2106(II):It is essential that patent applicants obtain a prompt yet complete examination of their applications...
Peterlin Lawsuit Dismissed in the DC District Court
Posted on December 10, 2007Aharonian v. Gutierrez (07-1224) December 6, 2007Earlier this year, Aharonian and other plaintiffs complained that the appointment of MargaretPeterlin to the position of Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office was unlawful because she is not a ?citizen of the United States who has a professional background and experience in patent or trademark law...
USPTO's Patent Advisory Committee Releases Annual Report
Posted on December 07, 2007The Patent Public Advisory Committee (PAC) was created to advise Congress on the policies, goals, performance, budget and user fees of the USPTO with respect to patents. The Committee is charged with preparing an annual report that is submitted to the Secretary of Commerce, the President, and the Committees on the Judiciary of the Senate and the House of Representatives...
Are Opinions of Counsel Truly "Irrelevant" Under Seagate?
Posted on December 07, 2007That's the question being asked in the case of Dell v. Lucent Technologies (E.D. Tex, 4:03-cv-347), where Lucent has filed a Motion In Limine to preclude Dell from mentioning to the jury that Lucent did not rely on an opinion of counsel in defense of Dell's willful infringement allegations...
BIO Submits USPTO's Annual Report to Congress
Posted on December 06, 2007After releasing the 2007 annual report, the PTO remarked in the report that the Office achieved "record breaking year-end numbers that reveal historic improvement in the quality of patent and trademark reviews and subsequently the quality of issued patents and registered trademarks" (see earlier 271 Blog post here)...
W.D. Wisconsin: "Significant Support" for Non-Infringement Vitiates Willfulness
Posted on December 05, 2007Franklin Electric Co., Inc. v. Dover Corp. (05-C-598-S), November 15, 2007Franklin sued Dover for infringing its patents related to underground tanks. The district court found in favor of Dover on summary judgment, ruling that Dover's products did not infringe...
LES Launches Certified Licensing Professional (CLP) Program
Posted on December 05, 2007The Licensing Executive Society has created a Certified Licensing Professional (CLP) certification, which is is a professional designation intended to distinguish those who have demonstrated "experience, proficiency, knowledge and understanding of licensing and commercialization of intellectual property through involvement in patenting, marketing, negotiation, legal, and intellectual asset management...
IRS Looking at New Taxable Category Based on Patents
Posted on December 04, 2007FromFederal Register / Vol. 72, No. 186 / Wednesday, September 26, 2007 / Proposed Rules:[T]he IRS and Treasury Department continue to be concerned about the patentingof tax advice or tax strategies and believe that adding a new category of reportable transaction to the section 6011 regulations for patented transactions will assist the IRS and Treasury Department in obtaining disclosures of tax avoidance transactions and in providing effective tax administration...
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can you patent the idea of letting, for a proper price, adults direct a porn scene for there own possesion over the internet or in person? A scene witch will be a one of a kind and owned by them without the ability for r
Probably not, as it's already been done....
Is it libel to write blog posts and/or online reviews about a local business that defames one's reputation?
Libel is the form of defamation expressed in fixed-- usually written form. Sland...
Should I copyright software I developed?
Depends on whether you are concerned that someone might make unauthorized copies...
Will vonage go bankrupt as a result of the Verizon patent suit over VOIP technology?
Vonage will most certainly be bankrupted if it doesn't sell itself first. I...
How does one get a patent?
Contact the patent office for your state or country (you can look this up throug...
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