Posts in Government

The Court held that dealing “physical playing cards” did not constitute patent eligible territory. This constituted a “purely conventional” activity, like the conventional computer implementation that fell short in Alice. The Court found there was no inventive concept sufficient to transform the subject matter into a patent-eligible application of an abstract idea.

Larger companies like Adobe can defend themselves in court, even in Texas, but upstarts and mom-and-pop small businesses do not have the time or resources to defend themselves in a Texas courtroom for prolonged periods of time. Given the rampant and growing abuse, Congress must pass comprehensive patent legislation that includes critical venue reform measures. Without venue reform, patent trolls will continue to bring lawsuits against America’s leading innovators and small businesses in jurisdictions that have no connection to an alleged infringement. The choice of forum should not be outcome determinative. That’s not justice.

Despite being grossly unfair to small inventors, the courts are routinely transferring cases to a venue containing the headquarters of the infringing multinational corporation, as happened in this case. Often cases are moved thousands of miles requiring outside counsel, travel, additional motions and legal work and other costs. Often the new venue is not experienced in patent cases and may take years longer to conclude the litigation. Part of the strategy for defendants is to fight a costly war of attrition against independent inventors and small businesses. Eventually they will be forced to give up. That is why patent reform that impacts venue matters so much, it is about raising costs, tipping the scales of justice and beating innovators into submission using procedural rules.

The PTAB is instituting 80% of inter partes review (IPR) petitions, which can only be interpreted as clear evidence of the extraordinarily low quality of patent examination at the USPTO. It is unclear why patent examiners are not being taken to task when only 20% of their work product is viewed as satisfactory on its face upon subsequent review by the PTAB. What business could ever exist with an error rate that high? It seems plainly clear on its face – the USPTO must have a serious problem with very low quality performance by patent examiners. So why isn’t the Patent Office doing something to correct the problem? Why aren’t they placing blame on the shoulders of the ultimate decision makers that allow garbage, illegitimate patents?

India, the world’s second-largest country by population, sends the most foreign workers to America on H-1B visas for specialty occupations by a wide margin. Statistics reported by the U.S. Department of State show that in 2012, 80,630 H-1B visas were issued to workers coming from that country. In second-place that year was China, which sent a total of 11,077 workers over on an H-1B visa; these numbers include submissions of visa extensions which don’t count against the annual cap of 85,000 new H-1B visas.

Given the fact that the IPR processes at PTAB have been worrisome for many patent owners, the possibility that Merrick Garland would continue his longstanding deference towards federal agencies should cause at least some concern. Many believe the procedures creating the post grant challenges implemented by the America Invents Act (AIA) are not only one-sided against the patent owner, but fundamentally unfair to the point where due process has been compromised. Rubber stamping agency decisions, as the Federal Circuit is doing with the USPTO, would be a terrible mistake and further erode already tattered patent property rights.

On Friday, March 18, 2016, in a one paragraph Order that for some reason is not available on the Court’s website, the United States Court of Appeals for the Federal Circuit denied that mandamus petition. The Court took the position that Trading Technologies simply has to go through the entire exercise of defending the ‘304 patent during a CBM review and then at the end they will circle back and determine whether the CBM should have been instituted in the first place. As if spending $1 million or more to defend a patent from a bogus challenge that never should have been instituted in a tribunal that clearly doesn’t have jurisdiction is no big deal. It just makes the Judges seem out of touch with the financial realities facing patent owners.

On the Republican side, front-runner Donald Trump, whose inability to be stopped by his own rhetoric has proven to be a hallmark of his campaign, has said himself that he is “changing” on this issue, at least where skilled talent is concerned. Trump has been on both sides of the H-1B visa issue, which makes it difficult to know what he really believes and what policy might become during a Trump Administration.

Simply stated, Senator Ted Cruz (R-TX) did not deserve the F foisted on him by the Engine study or amplified by the reporting by Wired and Ars Technica. Notwithstanding the inexplicable F given to Senator Cruz, the biggest error in the “report card” related to something that never happened. Senator Marco Rubio was given a B based on his vote in favor of the America Invents Act (AIA). The problem is that Senator Rubio missed that vote on the AIA and is also on record saying that had he been present he would have voted against the AIA. Indeed, there are many other inaccuracies and misleading statements that collectively left us wondering if the scoring of this “report card” intentionally misleads the public and reinforces the stereotype that the tech community only likes Democrats.

We set out to study the life cycle of appeals by conducting a stage-by-stage analysis to identify what fraction of applications were exiting the appeal cycle and how. Specifically, we obtained data (using LexisNexis® PatentAdvisorSM) corresponding to each appeal brief filed between January 1, 2010, and December 31, 2011. The data identified the stage at which the appeal exited the appeal process and the next significant event after exiting the appeal process. This assessment thus provides information pertinent to assessing what delays, costs and decision outcomes are truly associated with appeals… Examiners frequently terminate an appeal cycle expediently with an office action (often leading to an allowance) or an allowance, in which case the delay and a portion of the expense is avoided.

As we await the next Update from the Patent Office on subject matter eligibility, it may be worthwhile to consider further the role of examples given in the past by the PTO. The Patent Office’s July 2015 Update on Subject Matter Eligibility. Although examples of this sort can be helpful and are appreciated, they are not enough! In the Internet and computer arts, the existing examples offer limited use. The PTO has released only a few examples in the computer fields still, and in general they express fairly obvious points, such as the point that improvements to the computer itself remain eligible.

In the tech world, the H-1B visa for a person in a specialty occupation has been a heated issue at times. According to the official website for the U.S. Citizenship and Immigration Services (USCIS), the H-1B visa category applies to people who wish to perform services in a specialty occupation, services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, or services as a fashion model of distinguished merit or ability.

On March 10, 2016 the Federal Circuit sent two Patent Trial and Appeal Board (“PTAB” or “Board”) reexaminations back to the Patent Office. In proceedings initiated by IBM and SAS Institute Inc., the PTAB rejected claims for analyzing investment data in two patents owned by InvestPic LLC. The Board’s ruling turned upon two claim terms: (1) a “bias parameter” that determines a degree of randomness in sample selection in a resampling process”; and (2) “a statistical analysis request corresponding to two or more selected investments.”

Bamberg’s specification stated that plastics must not melt at ironing temperatures (up to above 220 degrees Celsius) because the effects would be undesired. Bamberg argued that while this was in the specification, the written description requirement was satisfied because one skilled in the art would understand that one could have a layer that melted above and below 220 degrees Celsius, but both may not be desired. The Court held there was insufficient evidence on the record to support the conclusion that Bamberg possessed a white layer that melted below 220 degrees Celsius because it specifically distinguished this as an undesired result.

There is evidence to suggest that the H-1B visa program for skilled workers has proven itself effective in helping the U.S. economy. The H-1B visa is intended to enable companies to hire skilled workers where there is no pool of talent capable of filling a new job… Of course, if we’re to explore the good inherent in the H-1B visa program, we must also expose the bad and speak to the at-times heartbreaking effects of this program on American workers, especially in instances where alleged abuses of the H-1B visa are involved.