Posts in Government

The Federal Circuit has found claims to a graphical user interface (GUI) patent to be patent eligible. See Trading Technologies International, Inc. v. CQG, Inc. The decision of the panel, authored by Judge Newman and joined by Judge O’Malley and Judge Wallach, is noteworthy for several reasons. First, the Court did not believe that their ruling affirming the district court to merit a precedential designation. This would suggest that the panel did not believe the decision would add to the body of precedential law, which would appear to make this an easy case for the panel. Second, the claims that have been found to be patent eligible under 35 U.S.C. 101 in this “easy decision” are currently under review by the Patent Trial and Appeal Board (PTAB) in a Covered Business Method (CBM) review because the PTAB believed the graphical user interface patent claims are likely patent ineligible.

We just don’t need another lawyer or lobbyist to run the USPTO. We need more this time. We need someone from the grassroots who understands the very real hurdles facing America’s most innovative segment. Congressman Thomas Massie (R-KY) comes to mind. He has built a company based on his patents and is a strong advocate for strong patents for startups. Hans Høeg, Congressman Massie’s Chief of Staff, also comes to mind. He is an inventor with a couple dozen patents and a startup built on patents. He also has four years navigating Congress and the government in his role working for Massie. He understands how patents work at the grassroots level, he understands the processes of the USPTO, he is experienced in patent law and licensing, and he understands how to navigate politically.

This week’s news headlines include nomination hearings for the potential incoming U.S. Commerce Secretary, the Supreme Court’s granting certiorari for an important case in biologics, a patent infringement suit targeting the NFL, the expiration of copyright protecting the works of a very influential science fiction author from the early 20th century, and another sports figure — this time UFC Lightweight Champion Conor McGregor — filing trademark applications.

Perhaps when the Senate Banking Committee convenes to consider the nomination of Wall Street attorney Jay Clayton as the new head of the Securities and Exchange Commission they should ask about efficient infringement and the infringe at will culture. What is your position, Mr. Clayton, on the legal obligation of a public company to shareholders? Should publicly traded companies inform shareholders that patent assets are worthless, or at least worth less, given the legal and regulatory climate in America? Should publicly traded companies systematically infringe and ignore all patent rights? Should publicly traded companies be using billions in shareholder monies to aggressively collect patent assets while they are simultaneously using millions to lobby against the viability of patents? What exactly do shareholders have a right to know?

The Supreme Court has scheduled oral argument in Lee v. Tam for January 18… The genesis of the case is a Portland, Oregon all-Asian-American band called The Slants, founded by petitioner Simon Shiao Tam. An application for trademark was made and the USPTO said “NO” on the basis that “The Slants” is a highly disparaging term and therefore must be denied registration under Section 2(a) of the Lanham Act… The cultural and societal value of the free flow of speech trumps government regulation. The Supreme Court should uphold the Constitution and confirm the importance of robust political debate, cultural discourse, and the right to use ANY words as part of a personal identity.

For the year patent infringement cases dropped by 22 percent from the previous year, from 5,823 cases in 2015 down to 4,520 cases in 2016. 2016 actually saw the lowest number of patent infringement lawsuits filed since 2011, when 3,578 cases were filed. There was no month during 2016 where more than 460 patent suits were filed; both 2014 and 2015 had at least one month where more than 650 patent suits were filed in district court.

Among the names under consideration is Randall Rader, the former Chief Judge of the United States Court of Appeals. But according to patent expert and noted commentator Hal Wegner, who generally does have well placed sources for this kind of information, the short list currently includes Phil Johnson (Johnson & Johson), Michael McKeon (Fish & Richardson), and Steve Pinkos (American Continental Group)… Another scenario being floated is that current USPTO Director Michelle Lee will be asked to stay on, a rumor flamed by remarks by Congressman Darrell Issa (R-CA) made at a CES panel last weekend… There has also been some speculation that Kevin Rhodes, who is Chief IP counsel at 3M, is or was under consideration at one point.

The Board’s determination was “potentially lawful but insufficiently or inappropriately explained.” The finding of obviousness was vacated and the case was remanded for further proceedings… Obviousness findings grounded in common sense must contain explicit and clear reasoning that provides some rational underpinning as to why common sense compels such a result.

In appealing from a final IPR decision, the appellant must have standing, based on evidence of record or supplemental evidence showing an “injury in fact.” Alleged economic injury must be specific and proven, and does not arise just from statutory appeal provisions or from IPR litigation estoppel when appellant’s infringement of the challenged patent is not a potential issue.

After several articles and webinars discussing appeals outcomes at the USPTO, we have received numerous requests for Pre-Appeal Brief Conference data to explain how advantageous the program really is for applicants. Using the vast data resources of our system and Public PAIR, we studied all appeals from January 1, 2006 (six months after the program was instituted), to the present day, including pending PBC cases. For the purposes of this article, we were chiefly concerned with the overall effect that a PBC had on the outcome of an appeal. As such, we have indicated that a PBC ended with a “decision for applicant” when the application was either allowed or prosecution was reopened following a PBC decision, regardless of whether the decision was due to the PBC decision itself or a subsequent pre-appeal brief office action. What we found was that, while few PBCs result in an allowance from the PBC decision itself, they have a net positive effect on an application’s overall appeals success. An explanation of our findings follows.

There is a plausible case that the US law on obviousness is indeed compatible with the EPO problem-and-solution approach. It could even be said that the steps of the problem-and-solution approach appear to have been inspired by US law and practice! Under present working styles, USPTO examiners concentrate on the claims and spend little or no time reading the description. If they are to initiate obviousness rejections using the problem-and-solution format they would have to change habits and consult the description to locate any effects related to the distinguishing features.

Not only are these two young men rising NFL stars who look as though they will have very promising careers; they’re also intellectual property owners. An Associated Press report published last August identified both Dak and Zeke as among a growing group of young sports professionals who have applied for trademark registration of character marks involving their names or nicknames. Prescott is still currently in the process of obtaining a trademark from the U.S. Patent and Trademark Office for U.S. Trademark Serial No. 86467076. This application seeks to register a standard character mark for “DAK ATTACK” in two classes, trademark class 25 for clothing and trademark class 41 for education and entertainment services.

A patent and copyright squabble involving two players in the networking space for information technology (IT) development, which has ramped up in recent years, saw an interesting round of events play out in federal court and regulatory agencies this past December. At the center of the brouhaha is American networking and telecommunications giant Cisco Systems (NASDAQ:CSCO) of San Jose, CA, which has filed multiple legal actions against Arista Networks (NYSE:ANET) of Santa Clara, CA, alleging that Arista has moved into the networking equipment market using technologies developed and patented by Cisco, specifically through former Cisco employees who founded Arista.

I believe it’s not a good thing to be an inventor in the US and I hope that Trump’s “America first” will apply to inventors. Let me explain why. My name is Jean-Paul Castille, I have a degree in Engineering from “Ecole Nationale Supérieure des Arts et Métiers” (ENSAM), a major engineering school of France and I am an independent inventor. I am the president of Antor Media Corporation, a US patent licensing firm. My career has been dedicated to invention, the development and commissioning of prototype systems in different areas of the industry.

The Senate Judiciary Committee is where any action relating to intellectual property reform will be played out during the 115th Congress, at least on the Senate side of the Capitol. Unlike in previous years, we enter 2017 without much support for a fresh round of patent reform, but at least some patent reform measures are sure to be introduced during the 115th Congress… Look for efforts to grant the Copyright Office greater autonomy and independence during the 115th Congress, even a push to remove the Copyright Office out form under the Library of Congress… Without further ado, meet the Republicans on the Senate Judiciary Committee.