Posts in Patents

Report Finds Pharma Industry Remains in the Lead of Top 100 Innovator Companies

The 2023 top 100 innovators have been revealed in the second annual Innovation Momentum Report, once again uncovering forward-thinking patent development and showcasing some of the most innovative companies—both big and small. In an increasingly fast-paced and complex modern technological landscape, the report sheds light on the most promising and active players by looking at the dynamics of technology development over the past two years. This year, the list has 27 new entries, highlighting the constant evolution of the innovation landscape and the speed at which technology advances.

In Response to Questions Signaling Major Changes to Patent System, Commenters Ask USPTO: ‘Where’s Your Data?’

Yesterday, February 1, was the deadline for submissions to the U.S. Patent and Trademark Office (USPTO) on its call for responses to a number of questions purportedly aimed at making U.S. patents more “robust and reliable.” But many commenters have weighed in to question why the Office is relying on data driven by advocacy groups to explore potentially major adjustments to the U.S. patent system when, as the expert agency on patents, it has not yet undertaken a data-driven study itself to confirm the need for such changes. The key data being questioned is that of  the Initiative for Medicines, Access & Knowledge (I-MAK), an advocacy organization that has become a “principal, go-to source” for data on the number of patents and patent applications covering pharmaceutical innovations. Some of the questions raised in the USPTO’s Request for Comments (RFC) seem to be based on many of the premises of the I-MAK data.

Revolution Rope Inventor Tells Justices She Deserves Her Day in Article III Court

The inventor of a novel jump rope system (the Revolution Rope), Molly Metz, argued in a reply brief to the U.S. Supreme Court filed on behalf of her company, Jump Rope Systems, LLC, on Tuesday that her case against Rogue Fitness is justiciable and the company has standing despite the cancellation of her patent claims by the U.S. Patent and Trademark Office (USPTO). Jump Rope Systems filed the brief in reply to Rogue Fitness’s brief in opposition, which was filed on January 19. Metz and Jump Rope Systems originally sued Rogue Fitness in 2018. But after Rogue filed a petition for inter partes review (IPR), the Patent Trial and Appeal Board (PTAB) ruled that Jump Rope Systems’ two patents (US 7,789,809 B2 and US 8,136.208 B2) related to jump rope handle technology were unpatentable.

Patent Filings Roundup: Latest Mohan Rao Vehicle Semiconductor Patents Challenged; Competitor Suits Dominate

It was a relatively average week for patent filings, with 58 district court complaints and 19 new Patent Trial and Appeal Board petitions filed—that’s a tad low—all inter partes reviews (IPRs). There were more fake meat IPRs filed against Impossible Foods by Motif Foodworks; no discretionary denials last week; lots of frequent litigants saw IPRs instituted against asserted patents this week; unknown Qualserve Solutions LLC sued Samsung on what appears to be standard-essential LTE networking functions, though it’s unclear how handsets would exactly infringe; AGIS and Verizon appear to have settled; Speir Technologies [Magentar Capital] went down the line and hit TCL (after reportedly offering a five-year RPX license to settle all Magnetar suits with their members).

Kappos at PTAB Masters 2023: The PTAB Simply ‘Hasn’t Worked Out’ as Intended

During the PTAB Masters 2023 program, which was held this week on Tuesday and Wednesday at IPWatchdog’s headquarters in Ashburn, Virginia, former U.S. Patent and Trademark Office (USPTO) Director David Kappos explained on a panel about potential reform of the Patent Trial and Appeal Board (PTAB) that the PTAB was meant to be an alternative to district court, but “that hasn’t worked out.” Kappos was Director during the enactment and implementation of the America Invents Act (AIA), which established the PTAB.

The USPTO Claims it Wants to Ensure ‘Robust and Reliable’ Patents – But Its Questions Imply Another Assault on Patent Owners

Last October, the United States Patent and Trademark Office (USPTO) issued a Request for Comments on USPTO Initiatives To Ensure the Robustness and Reliability of Patent Rights. Responses to this request are due by this Thursday, February 2, 2023. Patent owners, especially small businesses and independent inventors, need two things of the patent system: 1) Reliability/believability. We need patents that are respected when they are issued. We do not want any doubt about their validity. 2) Flexibility. We use many different strategies during patent prosecution. Many of our strategies reflect the startup-nature of our inventions, where we are constantly working on the product-market-fit. We may need several bites at the apple to effectively protect our invention. The Request for Comments suggests several different changes to patent prosecution, none of which address small companies’ needs.

Cellspin Says Judge Gonzalez Rogers’ Financial Ties to Silicon Valley Require Recusal

Earlier this month, patent owner Cellspin Soft filed a motion for recusal  under 28 U.S.C. § 455 seeking the vacatur of a summary judgment order entered in the Northern District of California by U.S. District Judge Yvonne Gonzalez Rogers releasing several defendants from infringement liability, including Fitbit. Cellspin Soft’s motion points to several financial interests between Judge Gonzalez Rogers and Fitbit’s parent company Google, including business relationships developed by Judge Gonzalez Rogers’ husband through McKinsey & Company, as requiring recusal under Section 455, a statute that was recently raised by a petition for writ denied last December by the U.S. Supreme Court.

USPTO Issues Final Rule to Eliminate CLE Certification Program

The United States Patent and Trademark Office (USPTO) yesterday announced a final rule to eliminate the provisions within the agency’s rules related to voluntary continuing legal education (CLE) certification and recognition for registered patent practitioners and individuals granted limited recognition to practice in patent matters before the USPTO. The rule also eliminates the Office of Enrollment and Discipline (OED) Director’s ability to publish the CLE status of patent practitioners. It will go into effect on February 27. The agency received critical comments from a variety of patent practitioners and interest groups about the USPTO’s lack of compliance with federal administrative law statutes related to agency rulemaking. Additionally, stakeholders highlighted the increased administrative and financial burden for patent practitioners if the CLE program was implemented.

Rising to the Top in a Post-Pandemic IP World: A Look at the Most Active Patent Litigators and the Latest District Court Patent Litigation Data

As economists predict market slowdowns, companies focus on the need to protect their market share by enforcing their intellectual property (IP) rights or possibly monetizing it to bring value to their balance sheet. A company’s value, reputation, and success can be directly tied to its intellectual property, and therefore, it is critically important to safeguard that IP. According to the United States Patent and Trademark Office (USPTO), economic growth is driven by innovation and supported through intellectual property. Thus, it is essential that we study the relationship that exists between innovation-related growth and the trends in IP data.

A Look at the Comments on USPTO-FDA Collaboration Initiatives: How Bad Data Could Chill Critical Drug Innovation

In the days leading up to the recent all-day listening session on initiatives pursued by the U.S. Patent and Trademark Office (USPTO) and the U.S. Food and Drug Administration (FDA) to address drug patent issues, 30 public comments were filed in response to the Federal Register notice issued last November seeking input on ways that both agencies could promote both innovation and patient access to generic pharmaceuticals. Some comments cited data pointing to supposed issues with artificially extended market exclusivity for branded drugs, while at least one pharmaceutical firm called out a well-known data source as improperly inflating that company’s patent data. Suggestions for intra-agency collaboration included more access to drug dossier information during patent prosecution, although concerns were also raised regarding the prospect that such increased engagement could tax agency resources to the detriment of all patent applicants.

SCOTUS Sustains Blow to Patent Prosecution Practice in Denying Juno v. Kite Rehearing

The Federal Circuit’s decision in Juno v. Kite undermines effective prosecution practice and ultimately patent enforcement. The Juno panel held that to satisfy the written description requirement, a patent needs to demonstrate to a skilled artisan that the inventors possessed and disclosed in their filing the full scope of every genus being claimed. By denying rehearing to the Federal Circuit’s 2021 decision on the scope of the written description requirement, Juno v. Kite demonstrates how once again, the courts never consider anything from a prosecutor’s point of view. Here’s why Juno v. Kite is bad for patent prosecution practice.

Opinion: Restoring The Road Less Traveled – American Invention at a Crossroad

As Robert Frost poetically noted, two roads diverged in the woods he was exploring. One road was well trod, easy to traverse, and the other less traveled, difficult and getting weedy. Sadly, although Americans pride themselves on innovation, American innovation, particularly inventorship, is now the difficult road. Bad decisions made in previous forks in the road have gradually undermined the innovative spirit in our nation, but some inventors in Washington, DC, next week want to change course before we automatically go down the well-trod path.

An Alternative to Claim Mirroring in Initial Patent Application Filing

While working as a patent examiner at the U.S. Patent and Trademark Office (USPTO) in Art Unit 2121 (artificial intelligence, or AI) I noticed that the typical patent application that I examined had seven method claims, seven apparatus claims, and six computer-readable medium (CRM) claims. In the typical application, the method and apparatus claims were mirrors of each other, and the first five CRM claims were mirrors of claims 1-5 and the last CRM claim combined the subject matter of claims 6 and 7. While examining a typical patent application, I only had to find prior art that taught these seven unique claims to reject the entire patent application. This led me to ponder why applicants are wasting the 13 other claims included with the standard filing fee with mirrored claims. Though best practice is to have multiple statutory categories with mirror claims by the time of allowance for enforceability reasons, there is a potential advantage for the applicant to file fewer mirror claims initially.

ITIF Report: The U.S. Underestimates China as an ‘Imitator’ Rather Than an Innovator at Its Own Peril

On January 23, the Information Technology & Innovation Foundation (ITIF) published a report entitled Wake Up, America: China is Overtaking the United States in Innovation Output, which applies innovation and industrial performance metrics for comparing relative innovation outputs from foreign technological rivals China and the United States. The report, produced by ITIF’s Hamilton Center on Industrial Strategy, is the latest indicator that China is close to surpassing the United States in terms of innovation output per capita and calls upon U.S. policymakers to develop a national economic and technology policy to restore U.S. dominance in innovation.

New York Court Finds Playlist Patent Ineligible as Abstract

On January 24, the U.S. District Court for the Southern District of New York held EscapeX IP LLC’s U.S. Patent No. 9,009,113 patent ineligible as being directed to an abstract idea. The patent covers a process for allowing users to upload “dynamic albums” to be stored on their devices. The district court granted Block, Inc.’s (better known as music streaming platform Tidal) motion to dismiss the patent infringement suit pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. According to the district court opinion, the patent’s specification states that “the patent seeks to remedy certain problems that currently exist with music streaming, including artists’ inability to effectively monetize their music, their lack of control over content once users have downloaded it, and the disconnect between streaming services and artists’ social media pages.”