Posts in Government

The U.S. Commerce Department’s United States Patent & Trademark Office (USPTO) recently announced that Patents for Humanity is being renewed as an annual program. Started as a one-year pilot in 2012, the program recognizes businesses, inventors, non-profits, and universities who leverage their intellectual property portfolio to tackle global humanitarian challenges. The renewal was first announced on February 20 as part of the Obama administration’s ongoing commitment to strengthen the U.S. patent system.

Professor Paul Janicke of the University of Houston Law School conducted a study of all damage verdicts in patent infringement cases between 2005 and 2007. He found no pattern of “runaway jury awards.” In fact, many of the biggest damage awards of that time, including the $1.5 billion award Lucent won from Microsoft, were set aside or greatly reduced by the judges. Even Apple’s $1 billion 2012 patent verdict against Samsung was recently slashed 43 percent. Why, then, are claims of a “broken” patent system rife with “excessive damage” awards so widely believed?

Any government truly interested in commercializing its research must realize that time is of the essence, risk is inherent in the process and deal makers should be supported by process. Napoleon adopted the motto: “Not a moment must be lost.” But quoting Napoleon may be too intimidating for times like these, so how about Larry the Cable Guy? Perhaps we still retain enough of the American spirit to embrace: “Git ‘er done!” Time will tell (perhaps sooner than we imagine). We’ve been trying to drive the federal R&D system with the parking brake on. It’s time to put product people behind the wheel, buckle the process people safely in, release the brake, hit the gas and get rolling. Those that used to be far behind are coming up fast in our rear view mirror.

In its complaint the FTC charges that the defendants violated the FTC Act by misleading consumers that the content on Jerk.com had been created by other Jerk.com users, when in fact most of it had been harvested from Facebook; and by falsely leading consumers to believe that by paying for a Jerk.com membership, they could access ”premium” features that could allow them to change their ”Jerk” profile. The FTC is seeking an order barring the defendants’ deceptive practices, prohibiting them from using the personal information they improperly obtained, and requiring them to delete the information.

As part of the Trademark Operation’s continuing series of roundtable discussions to gather stakeholder views on important issues, a roundtable discussion about USPTO’s practice regarding amendments to identifications of goods and services due to technology evolution will be held on Friday, April 11, from 2 – 3 pm. The session will be open to the public and webcast. The event will take place in the Madison Auditorium at the USPTO offices, located at 600 Dulany Street, Alexandria, Virginia 22314.

AIPLA believes that the so-called “single entity” rule for deciding method claim infringement under 35 U.S.C. § 271(a), where multiple actors perform the claim steps, as set out in recent Federal Circuit panel decisions as well as in the instant case, is based both on an incorrect construction of Section 271(a) and of the statutory structure of Section 271 as a whole. In concluding that only principles of agency law determine the ambit of such infringement liability, the Federal Circuit has mistakenly strayed from the traditional tort law basis of patent infringement and has created loopholes for method claim infringement that drastically reduce the exclusive rights conferred by validly issued patents – it has, in effect, reduced the scope of method patents until they have little relevancy… Direct infringement should not be limited only to an agency-type relationship between parties…

The USPTO today announced the creation of a new Office of International Patent Cooperation (OIPC). The OIPC will be led by Mark Powell who will serve as USPTO’s first Deputy Commissioner for International Patent Cooperation and report directly to the Commissioner for Patents Margaret (Peggy) Focarino. The establishment of the OIPC reflects USPTO’s strong commitment to work with global stakeholders and intellectual property (IP) offices to develop means to increase quality and create new efficiencies within the complex processes of international patent rights acquisition, and its commitment toward global patent harmonization, which both protects America’s ideas and makes it easier to do business abroad.

What seems to be happening is that the PTAB is literally applying KSR v. Teleflex in a way that many initially feared it would be applied, but in a way it has never been interpreted by the Federal Circuit. Under a literal reading of KSR nothing is patent eligible… If you are a defendant in a patent infringement litigation and you haven’t filed an inter partes review, what are you waiting for? The Patent Office giveth with the examiners allowance and taketh away with a PTAB decision. As long as the PTAB is killing patents can you blame defendants and their lawyers? It would be practically malpractice for a defense attorney in a patent infringement case to fail to recommend seriously considering inter partes review.

The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) is extending the nominations deadline for the 2014 National Medal of Technology and Innovation. The medal is presented each year by the president of the United States and is this country’s highest award for technological achievement. The deadline is being extended June 2, 2014.

It seems undeniable that Alice missed many opportunities to score easy points. Indirect arguments were made by Alice that didn’t seem very persuasive. Indeed, if one is to predict the outcome of the case based on oral arguments alone it did not go well for Alice today. Only three things give Alice supporters hope after this oral argument as far as I can tell. First, the government seems to be asking the Supreme Court to overrule precedent in Bilski that is not even four years old, which simply isn’t going to happen. Second, the egregious overreach and outright misleading nature of the CLS Bank argument should raise a legitimate question or two in the mind of the Justices. Third, the reality simply is that at least the systems claims recite numerous specific, tangible elements such that it should be impossible to in any intellectually honest way find those claims to cover an abstract idea.

Sen. McCaskill introduced S. 2049 in February 2014 which would require the FTC to promulgate rules to prohibit unfair and deceptive acts and practice in the sending of patent demand letters, including requiring each such letter to identify the patent number, the claims, a description of the manufacturer and model number of each accused product or service, notice that the recipient may have the right to have the manufacturer defend against the infringement, the identity of the person with the right to enforce (including each owner, co-owner, assignee, exclusive licensee, and entity with the authority to enforce the patent, and the ultimate parent entity), any FRAND licensing commitments, any basis for a specific license amount, and each PTO proceeding or litigation involving the patent. Bad faith assertion would be enforceable by the FTC or attorney general of a State in federal court.

The Department of Commerce’s United States Patent and Trademark Office (USPTO) today commemorated the issuance of the 700,000th design patent during a ceremony with United States Secretary of Commerce Penny Pritzker at Langdon Education Campus in Washington, DC. The patent for the ornamental design for a “Hand-Held Learning Apparatus” was issued to Jason Avery of Berkeley, California and is currently assigned to Emeryville, California-based LeapFrog Enterprises, Inc. (NYSE: LF). The ceremony also included the launch of a new Intellectual Property (IP) Patch developed as a joint project between the USPTO, Girl Scout Council of the Nation’s Capital and the Intellectual Property Owners Education Foundation (IPO).

Last week the United States Patent and Trademark Office announced that they will be holding a roundtable event on April 10, 2014, to discuss President Obama’s desire to find ways to allow the public to provide the Patent Office with prior art… [T]he real problem facing the Patent Office isn’t just that the industry by and large has completely rejected preissuance submissions, but rather the real problem is why. I have repeatedly heard this: “Why would I want to file prior art to help make the patent stronger?” In fact, at a recent conference I heard one attorney who had filed a preissuance submission explain that a strategic decision was made not to file the best prior art because if the patent examiner issues the patent anyway the client decided they wanted to hold on to the best prior art to challenge the patent later.

U.S. patent litigation has followed the centuries-old “American Rule” under which each party to a litigation pays its own legal fees and costs, regardless whether it wins or loses the litigation. A narrow exception exists in patent cases, but only in “exceptional cases” under 35 U.S.C. § 285, such as where the losing party engaged in litigation misconduct, or if the patent was fraudulently procured, or if the losing party raised arguments that were both objectively baseless and made in bad faith. Despite the long tradition of litigants paying their own legal fees and costs, Congress has shown interest in changing the playing field and deviating from the American Rule in patent cases. This comes at a time when the U.S. Supreme Court is already considering two cases that relate to the definition of “exceptional cases” in § 285 that may well alter how this existing exception to the American Rule is applied in practice.

The Board cancelled 95.2% of all claims for which trial was instituted, and cancelled 82.9% of all claims that were initially challenged by the petitioner… These bleak statistics have lead Federal Circuit Chief Judge Randall Rader to at the AIPLA annual meeting in October 2013 call the PTAB “death squads killing property rights.” Then again on Friday, March 21, 2014, at a conference hosted by the George Mason University School of Law, Chief Judge Rader said he was “troubled” by the many differences between proceedings at the PTAB and in the district courts, particularly pointing to the disparities in the treatment of the same evidence concerning the same claims. Rader mentioned that his recent comments about the Board being a “death squad” for patents in contested proceedings may be more accurate than some originally thought, considering the dismal track record for survivability of challenged claims in the first wave of final written decisions.