Posts in Inventors Information

A new inventors’ rights group was launched Thursday, September 19, with the aim of “helping startups, small businesses, and entrepreneurs defend their intellectual property rights and access capital.” The Inventors Defense Alliance includes Professor Kristen Osenga, professor at the University of Richmond School of Law, as its chief policy counselor, and boasts a board featuring the Hon. Paul R. Michel, former Chief Judge of United States Court of Appeals for the Federal Circuit (CAFC); Russell Slifer, former United States Patent and Trademark Office (USPTO) Deputy Director; Alan Heinrich, attorney and adjunct faculty member at the UCLA School of Law; and Earl “Eb” Bright, president and general counsel of ExploraMed Development.

Last week, independent inventor Carrie Hafeman filed an opening brief  for the appellant at the U.S. Court of Appeals for the Federal Circuit (CAFC) seeking reversal of the Patent Trial and Appeal Board’s (PTAB) invalidation of her device location and theft prevention patent claims. The brief includes Hafeman’s most recent challenge to alleged abuses of Sotera stipulations by Big Tech firms working in concert to invalidate Hafeman’s claims. The appellate brief also challenges the PTAB’s claim construction and obviousness analysis in reaching its invalidity determinations.

In today’s global economy, securing international patent protection is important for companies seeking to maintain a competitive edge. For U.S. patent practitioners, understanding the nuances of the European patent system is essential for successful patent prosecution abroad. This article aims to provide insights into the European patent system, emphasizing key differences between U.S. and European patent laws, and offering best practices for inventors and patent practitioners to help them file patent applications in the European Patent Office (EPO) effectively.

During our conversation we explore much of what is happening in DC relating to patents and innovation, and specifically discuss matters ranging from proposed guidelines from the National Institute of Standards and Technology relating to use of march-in rights to control drug prices, to the recently introduced RESTORE Act, which is little more than one-page would largely if not completely overrule the Supreme Court’s eBay decision and create a presumption that victorious patent owners who have proved infringement and withstood all invalidity challenges would be presumed to be entitled to injunctive relief.

On August 12, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in Celanese International Corp. v. International Trade Commission (ITC) affirming the ITC’s ruling that process patents owned by Celanese were invalid due to secret sales of products made by the claimed process prior to the one-year on-sale bar codified at 35 U.S.C. § 102(a). Following the U.S. Supreme Court’s reasoning in Helsinn Healthcare v. Teva Pharmaceuticals (2019), the Federal Circuit rejected Celanese’s contentions that statutory changes wrought by the America Invents Act (AIA) altered the on-sale bar such that sales of products manufactured by an undisclosed process would not invalidate patents claiming that process.

If you are an inventor of a consumer product there are reputable companies looking for inventions and ideas to bring to market, and their business model is built on taking products to market over and over again, and they are in constant need of new products and improvements. They also realize litigation is wasteful when you are dealing with products that often have a 1-, 2- or 3-year shelf life, so they are willing to do deals that allow them to quickly get products onto shelves and into the stream of commerce, and inventors get paid.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Tuesday issued a precedential decision affirming the Patent Trial and Appeal Board’s (PTAB) invalidation of Sanho Corporation’s patent based on its finding that a key prior art reference was not exempt under 35 U.S.C. § 102(b)(2)(B). The so-called prior art exception under 35 U.S.C. § 102(b)(2)(B) provides that “[a] disclosure shall not be prior art to a claimed invention under subsection [102](a)(2) if . . . the subject matter disclosed had, before such subject matter was effectively filed under subsection (a)(2), been publicly disclosed by the inventor.”

The U.S. Patent and Trademark Office (USPTO) announced today that it has updated its Subject Matter Eligibility Guidance to more directly address emerging technologies, specifically artificial intelligence (AI). The guidance also includes three new and detailed examples using hypothetical claims to address common situations, such as “whether a claim recites an abstract idea or whether a claim integrates the abstract idea into a practical application.”

Filing a patent internationally demands attention to many considerations, including subject matter, where to file, budgets, timing, translations, and local legal and procedural frameworks. There are several jurisdiction-specific legal issues related to filing of patent applications that are more commonly appreciated such as the need to recognize where the subject invention was made and the citizenship and residency of the inventors.

Our patent system has been relentlessly attacked for the better part of the last 20 years. Patents have been blamed for everything from the creation of patent litigation abuse to high prescription drug costs. There is scant evidence of an actual causal relationship, yet the attacks continue. Knowing that it would be impossible to outright ban patents, the popular argument is that poor quality patents that should not have issued are responsible for a majority of litigation issues and drug prices. In response, Congress created the Patent Trial and Appeal Board (PTAB) at the United States Patent and Trademark Office (USPTO) in 2011 to make it easier to invalidate “low quality” patents without the need for federal district court litigation. Yet, after more than 10 years of invalidating issued patents through the PTAB, the criticism of our patent system has not abated.

Richard Dean Anderson popularized the famous character of Angus MacGyver in the 1980s TV Show, MacGyver. The character of MacGyver overcame obstacles by making equipment out of anything he could find, such as a paper clip, a piece of gum, and a tennis shoe – all compiled miraculously to somehow defeat the bad guy and save the day. While MacGyver is a TV institution that demonstrates the resourcefulness of the inventor persona in popular media, in patent law, inventorship is more complex and requires the application of U.S. Codes and case law with a thorough factual analysis of the contributions of the inventors.

On June 6, the U.S. Patent and Trademark Office (USPTO) published a notice in the Federal Register announcing that the Office would be reopening the public comment period for the development of inventorship guidance surrounding inventions developed by artificial intelligence (AI) systems. Although the USPTO will continue to collect public comments until the middle of June, public comments received from patent industry stakeholders so far are largely urging the agency to adopt inventorship guidance that provides a broad pathway to patentability for AI-assisted inventions.

The 1952 U.S. Patent Act’s section 103 takes a pass at overcoming hindsight bias by positing a hypothetical Person Having Ordinary Skills In The (relevant) Art, i.e. a PHOSITA. It took 13 years thereafter for the Supreme Court to breathe life into PHOSITA in the Graham v. John Deere, 363 U.S. 1 (1966) Trilogy, and in another 41 years it adjusted the barriers of a U.S. Court of Appeals for the Federal Circuit (CAFC) diversion of teaching, suggestion or motivation (TSM) requirements for detection of non-obviousness in KSR Int’l Co. v. Teleflex, 550, U.S. 398 (Fed. Cir. 2007).

The U.S. Patent and Trademark Office’s (USPTO) recent Request for Comments (RFC) on the impact of artificial intelligence (AI) highlights a critical juncture in intellectual property law—evaluating the impact of generative AI (GenAI) on the non-obviousness standard. As GenAI technologies integrate deeply with human intellect, possibly even enhancing cognitive capacities, we must reassess what constitutes “progress” and the constitutional value that intellectual property law was envisioned to advance.

While it’s appropriate to lament the lack of bipartisan cooperation in Washington, just because something’s bipartisan doesn’t mean it’s a good idea. Exhibit A could be Senator Tammy Baldwin (D-WI) and Senator J.D. Vance’s (R-OH) “Invent It Here, Make It Here” bill. Despite the name and its good intentions, it condemns promising federally funded inventions to waste away without doing a thing to build our domestic manufacturing base. It’s scheduled to be considered this Thursday in the Senate Commerce, Science and Transportation Committee.