Posts Tagged: "Guest Contributor"

Hybrid electric vehicles pose a number of potential environmental and economic benefits that make it an important sector within green technology. Hybrids store an electrical charge in a battery that either reduces the amount of power required from an internal combustion engine or, in the case of all-electric vehicles, powers the entire car. This technology is in many ways still in its early developmental stages, but already some car manufacturers are selling hybrid models that reach 100 miles per gallon of gasoline, according to the U.S. Department of Energy. This reduces the amount of gasoline needed from imports and reduces fossil fuel emissions to almost nil.

“Reverse payment” cases are an outgrowth of a key feature I noted in my first article on the basics of Paragraph IV Certifications: the filing of an Abbreviated New Drug Application (ANDA) by the generic drug maker with a Paragraph IV Certification is treated as a technical act of patent infringement.[2] After receiving notice of the Paragraph IV Certification, the patent owner/NDA holder has 45 days to bring suit, otherwise the FDA can move forward on approving the ANDA.[3] Conversely, if the patent owner/NDA holder does bring an infringement suit within the prescribed 45 day period, the FDA cannot approve that ANDA for 30 months, unless the patent(s) that are the subject of the Paragraph IV Certification are earlier deemed invalid or not infringed in that suit.[4]

Many recent patents and patent applications have been released within the month by the U.S. Patent & Trademark Office that either improve on recycling methods or make better use of recycled material. A fully-recyclable cardboard bicycle that can bear heavy loads is the subject of one application. Halliburton Energy Services has also filed two applications for recycling asphalt and ceramic materials while drilling wells. Another application from fabric developer Tintoria Piana looks to reclaim cotton from old mattresses. Even diesel soot may see more reuse through recycling, thanks to an application assigned to Dearborn Financial. We’ve also found one very interesting patent awarded to a solo inventor from Missouri that can allow for the reuse of rubber from tires through heated vapor distillation.

Solar energy is one of the alternative energy forms that many believe can be an effective part of the new alternative energy that replaces our current carbon-based fossil fuel situation. However, solar radiation can be inconsistent based on time of day or weather, and large surface areas must be used to collect enough solar energy to generate a meaningful amount of electricity. In most of these applications, we can see solar cell panel technology being applied to individual devices and machines, collecting enough energy to charge a battery or at least reduce energy used from other sources. These patent applications describe cars, digital cameras, irrigation systems and even digital cameras with solar energy collection technology.

Normally when we discuss the impact of the Bayh-Dole Act, allowing universities and small companies to commercialize inventions made with federal support, we focus on the life sciences where the resulting new drugs and therapies dramatically improved lives for millions around the world. However, the celebration of Earth Day is an appropriate time to consider the contributions our publicly funded research organizations– partnering with an entrepreneurial private sector– make in protecting our environment.

Patent applications published recently by the U.S. Patent & Trademark Office show Samsung’s goals of developing stronger systems of software protection and user interfaces for gesture-based gaming systems. Another patent application assigned to Samsung Electronics could protect an important advance in cancer treatments. One of the recent patents awarded to Samsung from the USPTO protects a more efficient system of location tracking designed for parents.

Our analysis of the full set of cases across the chosen years confirms what we saw in the smaller sample: patent infringement litigation by patent monetization entities has risen dramatically over a remarkably short period of time. One of the most striking results is the following: in 2012, litigation by patent monetization entities now represents a majority of the patent litigation filed in the United States. Specifically, patent monetization entities filed 58% of the patent lawsuits in 2012. This is a sharp rise from 2007, when patent monetization entities filed only 24% of patent infringement litigations.

Of note, recently the U.S. Patent & Trademark Office published multiple patent applications filed by Research In Motion that pertain to smarter, more efficient forms of electronic communication for both cell phones and computers. Another patent application offers some promise for slowing the progress of cyber-bullying on social networks. Yet another patent application takes uses a touchscreen to store fingerprint information to determine ownership for images captured by the device. Still another application of potential interest is one that seeks protection for a system making it easier for mobile content providers to sell digital content, particularly periodicals.

Frito-Lay brought a lawsuit against Medallion Foods for allegedly trademark infringement, trade dress infringement, unfair competition, and dilution under United States Trademark Act. Frito-Lay also alleged willful patent infringement under the patent laws of the United States.

In its amended complaint Frito-Lay alleged that Medallion Foods’ tortilla chips result from processes, which infringe one or more claims of United States Patent No. 6,610,344 either literally or under the doctrine of equivalents. Additionally, Frito-Lay contends that Medallion Foods is liable for infringing the ‘344 Patent under U.S.C. § 271, as well as the infringement being willful, entitling Frito-Lay to enhanced damages under §284.

Both sides tried to limit the scope of trial through pre-trial motion practice. On October 4, 2012, Frito-Lay filed a motion for summary judgment on Medallion Foods’ sale or public use affirmative defenses and counterclaims. Frito-Lay “contends that it is entitled to summary judgment because Defendants [Medallion Foods] failed to produce clear and convincing evidence that the chip sold by Frito-Lay in a test market had fluted edges, and all testing of a bowl-shaped chip with fluted edges occurred under confidentiality agreements.” The Court went through a thorough analysis and granted in part, and denied in part the motion.

Recent patent applications filed by Oracle, and released by the USPTO, highlight the technology developer’s planned upgrades to current software systems, including dead memory retrieval by garbage collection applications and automated event grouping for timeline user interfaces. Another application describes a more exact system of mileage tracking for business expense reports. A recent patent also promises to give end users a better ability to tailor their search queries to provide better search results.

“Carve outs” essentially involve a situation where there is an FDA approved drug for which the generic drug maker seeks to market that drug, again through an Abbreviated New Drug Application (ANDA), but instead for an FDA approved use, where also that FDA approved use is unpatented. While these “carve outs” also involve the filing of a Paragraph IV Certification, there is a slight but important twist in that Certification: inclusion of what is called a “section viii statement” that the generic drug maker “is not seeking approval for a method of use that is claimed in the patent.” When submitting the “section viii statement,” the generic drug maker must also provide a proposed label that removes or “carves out” the claimed method of use.

Recent patent applications assigned to Boeing show the company’s desire to create more adaptive in-flight management in response to unforeseen conditions. Another patent application describes a new system of solar energy collection that can generate energy from a very wide spectrum of light waves. One patent issued to Boeing also provides an interesting new development in the arena of laser light communication for data transmission.

Microsoft Corporation was a huge winner at the U.S. Patent & Trademark Office this past week, as the Washington State-based computer software developer received 65 patents from the USPTO and had another 49 patent applications published. Many of Microsoft’s more intriguing applications deal with upgrades in responsiveness to user input, including e-mail address book synchronization and a collection manager for content users follow online. Microsoft also received a patent that improves the parsing of handwritten digital text for conversion into textual characters.

In my opinion the best way to judge the success or failure of the patent system is by looking broadly at the type of competition it enables or disables in the marketplace. And that doesn’t mean focusing solely on patent litigation statistics – of course there are going to be fights when such a high stakes prize as mobile computing is up for grabs and of course firms competing with such different business models are going to come into conflict. But look at what that competition has done for innovation and product advances and for consumer choice and pricing. You need the option of patent protection to provide the necessary freedom of choice in market approach, (whether it is open, proprietary or a blend of both), to enable competition between firms employing different market approaches and the innovation engendered by that competition.. The correct focus for this issue is not the intrinsic merit of the concept of patent protection, but rather what the existence of patents does to promote business model diversity and what that in turn does to promote innovation. This is the important point and at least in my view it seems clear that having patents enables more business model diversity and consequently more innovation than not having them.

In a moment of extreme weakness, I agreed to Gene’s request to doing a primer on Paragraph IV Certifications under the Drug Price Competition and Patent Term Restoration Act, commonly referred to as Hatch-Waxman. I don’t know if you would call me an expert, but I’ve studied many, many cases involving Paragraph IV Certifications under Hatch-Waxman. The courts have found Hatch-Waxman to be a hydra-like monster with a labyrinth of sections that are frequently confusing (or worse yet, conflicting). Paragraph IV Certifications are a particular trouble spot in Hatch-Waxman. So if you’re up to diving into the “belly of this beast,” let’s examine the characteristics of this most infamous of the Hatch-Waxman monsters. To understand Paragraph IV Certifications, you must first address what an Abbreviated New Drug Application (ANDA) is. ANDAs are how generic drug manufactures expedite the approval of their generic drugs.