Information Filled Under 'uspto' Category
Eighth Circuit: Federal Circuit Does Not Hold Appellate Jurisdiction over a Refusal to Compel Arbitration in a Patent Case Thursday, March 18th, 2010
Industrial Wire Products, Inc. (IWP) v. Costco Wholesale Corp ., 576 F.3d 516 (8th Cir
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Eighth Circuit: Federal Circuit Does Not Hold Appellate Jurisdiction over a Refusal to Compel Arbitration in a Patent Case
USPTO Director David Kappos was in London for a flying visit last week to attend the launch of a new publication that reports on the economic damage being done by the global patent backlog, as well as to announce a major work sharing initiative with the UK IP Office. While he was over here I had the chance to sit down with him to talk through some of the major issues he is currently grappling with
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BLOG: International work-sharing is key to tackling quality and backlog problems, says Kappos
The UK Patent Office has released a commissioned study examining the “economic impact of delays in processing patents.” The report (prepared by the consulting company London Economics) suggests that the delays (1) reduce the incentive to innovate; (2) increase the likelihood of filing applications on non-patentable inventions (for the benefit of patent pending status); and (3) the monopoly power held by the owners of non-patentable applications. The estimate of these costs on the world economy is $11.5 billion dollars per year.
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Cost of the Patent Backlog and the Proposed Solution
Thus, I make a number of visits every year to the U.S. Patent and Trademark Office ( USPTO ) in Alexandria, VA. During one such visit this week, I made a few observations that I’d like to share with our readers
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The Word From The USPTO Trenches. « Anticipate This!™ | Patent and …
Ex Parte Frye (BPAI 2010) ( precedential opinion ) In a newly issued precedential opinion, the Board of Patent Appeals and Interferences (BPAI) has ruled that examiner findings are given no deference when challenged on appeal. “[T]he Board reviews the particular finding(s) contested by an appellant anew in light of all the evidence and argument on that issue.” However, examiner findings that are not specifically challenged will not normally be disturbed by the BPAI. “If an appellant fails to present arguments on a particular issue – or, more broadly, on a particular rejection – the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection
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The BPAI’s Standard of Review for Examiner Rejections
The White House today announced that Judge Kathleen (Kate) O’Malley (N.D.Ohio) is the nominee to fill the empty judgeship position on the twelve-member Court of Appeals for the Federal Circuit. The position was previously filled by Judge Schall. Chief Judge Michel has announced that he will retire this Spring
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Federal Circuit Judge Kathleen O’Malley
If any information is incorrect, the applicant should immediately email the requested correction to TMPostPubQuery@ uspto .gov. For general information about this notice, please contact the Trademark Assistance Center at 1-800-786-9199. …
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Downloading a 142 MB PDF from the USPTO | The Invent Blog®
By Sarah Fendrick — In order to assess the burden of patent-related paperwork, the US Patent and Trademark Office has retained ICF International (ICF) to conduct an independent study. As described in a notice in the Federal Regster (75 …
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Patent Docs: USPTO Requests Comments on Office's Paperwork Burden …
The U.S. Patent and Trademark Office ( USPTO ) recently extended its temporary initiative aimed at reducing the backlog of unexamined patent applications. The Patent Application Backlog Reduction Stimulus Plan, which was originally …
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USPTO Extends Temporary Program Aimed at Reducing the Backlog of …
Etan Chatlynne reports post-KSR patent validity decisions with a special focus on the presumption of validity and the clear and convincing standard for rebutting that presumption.
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Investigating Patent Law’s Presumption of Validity—An Empirical Analysis
Last month, the USPTO issued a ruling that Enzo’s application and invention had indeed pre-dated Chiron’s. The diagnostic division of Bayer Healthcare, which has since been acquired by Siemens, markets the Versant branched DNA assays …
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USPTO Rules that Enzo Nucleic Acid Signal-Amp Tech Precedes Patent …
Chicago Area Creative Achievement Award : The Intellectual Property Law Association of Chicago ( IPLAC ) invites nominations for its 2010 Creative Achievement Award (formerly called the Inventor of the Year Award ). In addition to recognizing inventors, the award is intended to recognize significant achievements in the creation of a trademark or service mark and related branding, marketing, and advertising activities, as well as achievements in literary, visual, musical, dramatic, and other arts protected by copyrights. The annual award may fall in any one of these categories for inventive/creative activity conducted in the Chicago metropolitan area.
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Patently-O Bits and Bytes No. 322
A Patent Examiner offered the following perspective on the seeming rise in the number of restriction requirements: The numbers cited in this article to indicate an enormous rise in restriction requirements within the biotech group since the early 90's are misleading. While restrictions have risen since that time what has really changed is the percentage of biotech restriction requirements which are written compared to those which are done telephonically and thus included within the FAOM. I have been a biotech examiner for almost twenty years
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Rise in Restrictions: A Response
Michael Kasdan and Joseph Casino discuss recent shifts in reasonable royalty jurisprudence with a particular focus on the recent cases of Cornell , Lucent , and Lansa . Together, these decisions “indicate an emerging trend to more carefully scrutinize the evidentiary and economic basis of reasonable royalty-based patent damages awards in the setting of the appropriate royalty base, the application of the entire market value rule, and the calculation of the appropriate royalty rate.” [ Download Kasdan.Casino.Damages ] Cite as Michael Kasdan and Joseph Casino, Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards , 2010 Patently-O Patent L.J
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Federal Courts Closely Scrutinizing and Slashing Patent Damage Awards
A recent article co-written by former PTO Director Jon Dudas along with Stepen Maebius and Sean Tu makes a strong statement regarding the rise in restriction requirements: Restriction practice has clearly grown in the past few years. In 1993, there were only approximately 1,000 restriction requirements in the biotech practice group (out of approximately 32,000 first office actions)
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Rise in Restrictions
The Marking Requirement : Here is how the marking statute has been interpreted. If a patentee sells (or authorizes the sale of) a product that is covered by the patent, the patentee can only collect past-damages for patent infringement if either (1) the product was properly marked as patented or (2) the infringer had actual notice of its infringement and continued to infringe. If there is no authorized product covered by the patent, then the patentee can collect past damages (up to six years) even if the infringer had no knowledge of the patent. Method claims typically do not have a corresponding product.
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The Marking Requirement: Here is How the Statute has been Interpreted.
Marking Products as Patented : Many manufacturers mark their products as patented by listing the associated patent number on the product or its packaging. The marking serves as constructive notice to potential infringers — allowing a patentee to collect damages for infringement even if the infringer had no actual knowledge of the patent
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False Marking and Patent Reform
Simonian v. Blistex, Ciba, Pfizer, 3M, Edgecraft, Darex, Cisco, Bunn-O-Matic, Oreck, Novartis, Merck, etc. (N.D.
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False Marking False Marking False Marking False Marking all at up to $500 per offense
Senator Patrick Leahy (D-VT) announced this morning that a “tentative agreement” has been reached on the patent reform bill with Senator Jeff Sessions (R-AL). “No one will think this is a perfect bill, but we are close to a comprehensive patent reform bill that benefits all corners of the patent community.” Leahy did not provide any further details except that the compromise will “address” the issues of “runaway damage awards” and patent quality. The reform bill has already been passed by the House
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Patent Reform Moving Forward
In DaimlerChrysler Corp v American Motors Corp the Trademark Trial and Appeal Board followed the recent decision of the US Court of Appeals for the Federal Circuit in In re Bose Corp and denied DaimlerChrysler’s motion for summary judgment on the question of whether American Motors Corp had attained registration of its trademark by way of fraud on the USPTO.
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REPORT: Motion for summary judgment denied on issue of fraud intent
On February 26, 2010 (Friday), I will be speaking as part of the Stanford Technology Law Review annual Symposium. This year's focus is USPTO Reform. Topics include : Quality and Pendency: Drilling Down to Backlog, Deferred Examination, Patent Worksharing and Other Integers to Achieve Primary Goals led by Hal Wegner The Role of Applicant Incentives in Patent Office Reform led by Dennis Crouch Patent Examination Policy and the Social Costs of Examiner Allowance and Rejection Errors led by Ron Katznelson Examiner Characteristics and the Patent Grant Rate led by Mark Lemley & Bhaven Sampat Other participants include Professors Colleen Chien (SCU), John Duffy (GWU), Jeff Lefstin (Hastings), Roberta Morris (Stanford), Arti Rai (Duke & USPTO), and Brenda Simon (Stanford) as well as Jon Dudas (Foley & Lardner), Leonard Heyman (VMWare), Ed Reines (Weil Gotschal), Robert Sachs (Fenwick & West), Lee Van Pelt (Van Pelt), Janet Xiao (Morrison Foerster), and Mallun Yen (Cisco)
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Upcoming Symposium and The Role of Patent Applicant Incentives in Patent Office (PTO) Reform
Guest Post by Paul Cole, visiting professor of IP law at Bournemouth University Dosage Regime/ ABBOTT RESPIRATORY G 0002/08 – 19 Feburary 2010 Patentability of the present application was governed by EPC 2000 rather than EPC 1973, and the referring Appeal Board considered it an important point of law whether medicaments for use in therapeutic treatments could be considered novel where the only feature of novelty was a dosage regime.
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New regime for use claims (dosage regimes) before the European Patent office (EPO)
An interesting article today at the New York Times, detailing an interview with Nathan Myhrvold at Intellectual Ventures . Intellectual Ventures is a self-proclaimed “invention company” located in Bellevue, Washington. Nathan Myhrvold, an ex-Microsoft executive, founded the company in 2000 with the goal to nurture fundamental innovation and invention. To date, Intellectual Ventures has acquired at least 30,000 patents. Intellectual Ventures’ activities are not limited to buying patents, however. The company apparently has 650 employees including scientists and engineers, and an in-house invention effort and lab that last year applied for 450 patents. Most interesting is Mr. Myhrvold’s expressed interest in building a market for “invention capital,” where patents will be valued as a separate asset class, like real estate or securities. He recently articulated his vision in an article published in the Harvard Business Review here . We highly recommend reading both of these articles. Non-practicing entities (NPEs) such as Intellectual Ventures are often maligned in industry as “patent trolls”, since they generally do not create any products themselves and instead generate revenue primarily by licensing patented technologies. However, could more of their business model really be what our economy needs to finance start-ups with new ideas, and revitalize otherwise dying industries? Any thoughts from our readers? See also an earlier 2007 post by AT! on the Intellectual Ventures company here .
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NY Times Article – Turning Patents Into “Invention Capital”.
Per this story earlier in the week at the San Francisco Chronicle, Microsoft Outlook users now have the option of integrating their LinkedIn accounts with their Outlook email via a “Outlook Social Connector” now available from Microsoft. Upon downloading and installing the Outlook Social Connector, Outlook will aggregate contact information from both the user’s LinkedIn and Outlook accounts. Additionally, a summary of the contact’s most recent LinkedIn activity, status updates, accepted connections and e-mails is provided in a new window pane under an e-mail to the contact. If the contact with which the user is corresponding is not yet connected by LinkedIn, the user can simply select and request to add them to the user’s LinkedIn network through the Outlook interface. For those interested in trying the out the new Outlook Social Connector, click here to download the latest version from Microsoft
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Integrating LinkedIn With Outlook Email.
My recent study of BPAI written description requirement jurisprudence was prompted by reading the US Government Brief in the en banc case of Ariad v. Eli Lilly. In the brief, the government indicated its continued support for a separate written description requirement as a tool that the agency uses to eliminate claims during patent prosecution.
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Ariad v. Eli Lilly: Written Description Requirement
[ Download the Draft Essay ] Essay Overview : In the pending case of Ariad v. Eli Lilly , an en banc Federal Circuit is considering whether Section 112 of the Patent Act as properly interpreted includes a written description requirement that is separate and distinct from the enablement requirement. Although the USPTO has no direct role in the infringement dispute, the government submitted an amicus curiae brief arguing that a separate written description requirement is “necessary to permit the USPTO to perform its basic examination function.” However, when pressed during oral arguments the government could not point to any direct evidence supporting its contention.
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An Empirical Study of the Role of The Written Description Requirement in Patent Prosecution
The following letter has been sent to many patent attorneys and patent agents asking them to consider joining the USPTO examiner corps. * * * * * February 5, 2010 Dear ______ Deputy Under Secretary Sharon Barner and I wanted to contact you directly to let you know about an exciting opportunity for a career as a USPTO patent examiner.
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Dear Patent Attorney and Patent Agent: Consider Joining to the PTO