Posts in Guest Contributors

Technology is in a constant state of evolution, and the Internet of Things (IoT) is no exception. The top five emerging markets for the IoT – medical, fitness wearables, industrial, automotive, and smart homes – are driven by patented IP, much of which is being applied in IoT inventions. The patents for the five technology areas of the IoT – Things, networking, computing and storage, services and analytics – differ in content and maturity. The bottom line is that the technologies at the beginning of this system, Things, and at the end of this system, analytics, are the newest. The technologies in between, networking, computing and storage, and services, are established, but will evolve and scale for IoT. It is in these “in between” areas that we see the most dominance of mature companies.

In a November 10 ruling, the Federal Circuit held that routine quality control testing of each batch of a generic drug as part of the commercial production process, after FDA approval, is not protected by the Hatch-Waxman safe harbor provision of 35 U.S.C. § 271(e)(1). However, infringement only occurs under 35 U.S.C. § 271(g), as a result of “making” a product, which does not include quality control testing.

According to Limelight, the district court’s construction of “tagging” was limited to using a “pointer” or “hook” to prepend or insert a virtual server hostname into a URL. The Court rejected “prepending” as a claim limitation because even though the ‘703 patent described prepending as a preference, there was no indication from the claims or prosecution history that tagging was limited to this preferred embodiment. The Court found no error in the jury instructions and held that Limelight was bound to the stipulated construction of “tagging” originally read to the jury.

Judge Leval found fair use and ruled in favor of the defendants. However, this was quickly reversed and remanded by the Second Circuit Court of Appeals under the logic that that previously unpublished works were immune from fair use due to a right of privacy. Leval now thinks his opinion deserved to be reversed, but the Court of Appeal’s opinion was even more problematic. He opined that the “[i]nability to quote from unpublished documents would seriously impair history, political commentary, [and] journalism.” As he described Craft v. Kobler (1987), New Era Publications v. Henry Holt & Co. (1988), and American Geophysical Union v. Texaco (1992), a pattern became clear: Judge Leval’s application of the fair use doctrine throughout the past thirty years has been based on furthering the advancement and edification of the public.

There is a lot of hype around the Internet of Things (IoT) yet many, if not most, are confused by what IoT really is and what it means for their IP and their business. If you are a new player in the IoT market, you most likely will be filing patent applications for new innovations; however, since IoT is being built on established technology, you need to be aware that there are hundreds of technology companies that may already own the seminal foundation patents. Many companies new to the IoT market may have strong and expansive portfolio positions for assertion. This makes it difficult at best to discern whether or not IoT inventions are really new or just recycled technology.

Abraham Lincoln once called the patent system one of the three greatest advances in human history, along with the discovery of America and the printing press… The result is a patent system in crisis, which threatens our economic future. Small businesses received 30 percent of U.S. patents in 2000. Last year the number plummeted to 19.5 percent. Small companies undertake the risk and expense of developing breakthrough technologies that made us the most prosperous nation in history. When they lose confidence in the patent system the country will suffer.

The sole modification in the figure amended was to change one of the 13 amino acids in the structure of daptomycin from an L-stereoisomer to a D-stereoisomer of asparagine. At the time of the invention, it was universally believed that daptomycin included the L-stereoisomer. Not until years later did Eli Lilly discover the error. In any case, the certificate of correction did not affect the validity of the patent, because daptomycin had been described in numerous ways in the application, including by referencing another application that described how to make daptomycin, which would have inherently included the D-stereoisomer.

Imaginal appealed, arguing that the district court improperly construed the disputed claim language, because: because it: (1) ignored the written description and claim language; (2) relied too heavily on general purpose dictionary definitions; and (3) improperly excluded a preferred embodiment. The Federal Circuit disagreed. It held that nothing in the patent claims or specification restricted the vision guidance system to only one particular system that is excluded from the claims (“without”). Accordingly, the Federal Circuit affirmed.

Advanced Steel sued X-Body Equipment for infringement of a method of loading shipping containers with bulk material. The “proximate end” of the claimed transfer base, for moving loaded material, was disputed by the parties. X-Body successfully argued on summary judgment that the piston-and-cylinder for its container packer was not connected to the proximate end of its transfer base, but instead was connected at a point on the bottom of the container packer. Under the district court’s construction of “proximate end” (which means “the extreme or last part lengthwise”), there was no literal infringement or infringement under the doctrine of equivalents.

The PTAB has seen more than triple the number of inter partes review (IPR) petitions—now the preferred way for a company accused of infringement in court to challenge a patent’s validity—than it projected when the challenge first became available in 2012. But the fact that proceedings can run simultaneously presents challenges.

This years’ list of the top 50 companies having been granted design patents was dominated by technology, automotive, and consumer product companies, with foreign corporations representing more than 40% of the top 50 with a total of 20 companies. According to the IPO data, in 2014 the top 50 design patent recipients received a combined total of 4,743 design patents, compared to 4,599 granted to the top 50 recipients in 2013. Specifically, the growth in 2014 was just under an increase of 150 design patents that were granted in 2014 compared to an increase of nearly 400 that occurred year-to-year from 2012 to 2013. Despite the recent slowdown, however, the prospects remain strong for continued growth in design patent applications in the coming years, especially as innovators look toward design patents to strengthen their IP portfolios.

How does one deal with a public shaming? Nothing I learned in school or during 35 years of practice prepared me for this. But I had to take affirmative action to preserve my sanity and some modicum of dignity. The first thing I did was to take steps to avoid awkward encounters. In that vein, I withdrew from the Linn Inn of Court and the Union League Club, and skipped my law school reunion. Some friends criticized those decisions, but I needed to retreat and lick my psychic wounds.

In their submission to the Washington Post’s series this week on so-called “patent reform” and “patent trolls,” James Bessen and Michael Meurer repeat the same junk science claims we’ve all heard many times before. This narrative is the unfortunate byproduct of unreliable and unscientific studies. This past March, I joined forty economists and law professors in a letter to Congress expressing “deep concerns with the many flawed, unreliable, or incomplete studies about the American patent system” that have been injected into the patent policy debate. Unfortunately, Bessen and Meurer themselves have produced some of this junk science, infected with mistakes that render their conclusions utterly meaningless. For example, they once estimated that litigation by so-called “patent trolls” cost the U.S. economy $29 billion in 2011. This figure has been thoroughly debunked and criticized for the fundamental and methodological flaws, such as using proprietary, secret data collected by a company that has a stake in lobbying for more legislative revisions to patent litigation rules.

While the startup probably had an initial 100% market share due to a temporary de facto monopoly, such share rapidly decreases as soon as others start selling to the same customers. Worse, many times, one of those fast followers is a large entrenched company that has deep R&D teams, seemingly unlimited budgets, well-known brands and established distribution channels in many key geographies that took decades to build. They can play catchup really fast. In other words, the only thing going for the startup at that point (assuming it could not possibly achieve this scaling up over such a short period of time) is the uniqueness of its technology and its ability to out innovate others. This in turn is only true if the new technology it brings to market is adequately protected against free riders; otherwise one is simply doing others’ bidding and subsidizing their R&D… In short, innovation without protection is simply a form of philanthropy!

Puerto Rico was discovered by the Spaniards on Nov. 19, 1493, during Columbus’ second voyage. For the next 400 years, it was a Colony of Spain, with two brief interruptions, but with no formal transfer of ‘ownership’. The patent activity with (at the time) a foreign power (the USA) is surprising in the latter parts of the 19th century. This article takes a look at the patents issued by the USPTO to Puerto Rico residents within the period.