Posts Tagged: "patent office"

Inter partes review proceedings unconstitutionally assign to an Article I executive branch tribunal matters reserved for Article III Judges that make up the Federal Judiciary. This is in violation of Separation of Powers principles, which is particularly problematic given that we are talking about property rights being stripped from patent owners by administrative law judges in a proceeding designed to be a district court alternative. These administrative tribunals also adjudicate patent validity without a jury, in violation of patentees’ Seventh Amendment rights.

Sadly, this is not an isolated case. I’ve seen similar rejections in a diverse (and utterly random) number of art areas and technologies ranging from predictive computer algorithms, to voice recognition technology, to methods for user-customization of advertising received on a device. While some of the rejected claims were arguably directed to an abstract idea, only a small minority had any apparent connection to “organizing human activity” as that phrase has been used in the case law.

Earlier today the United States Senate confirmed Michelle Lee to head the United States Patent and Trademark Office, a position that has been vacant since the resignation of David Kappos at the end of January 2013. Lee’s official title will be Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.

Senator Coons: ”[P]atents are not just foundational. Patents are really about the American Dream. They are about what it means to come to this country or be from this country and believe in the possibility that you and a team of folks that you work with can invent and develop and then protect a groundbreaking innovation. Patents are about constantly laying a stronger foundation upon which future generations can continue to innovate and about insuring we will find solutions to the challenges that face us, not just here but around the world… So here is the truth. We need to both strengthen patents and target real abuse. They are not mutually exclusive…”

The summit will bring together entrepreneurs, business leaders, academics, government officials, and thought leaders in the innovation ecosystem to engage on how government, academia, and industry can work together to spur economic growth. The event will include panels on the evolving role of urban innovation in the American economy, the role of government and universities in technology development, and discussions on what investors and startups want to see in developing policy around innovation.

The USPTO has put SAWS to rest, literally. The USPTO has posted a message on the agency’s website explaining that after conducting an internal review of the SAWS program the agency has ”decided to retire this program.” Furthermore, the USPTO explained that ”[a]ny applications currently in this program will now proceed through prosecution absent any additional SAWS-related processing.”

On Thursday, February 26, 2015, the Senate Judiciary Committee unanimously approved the nomination of Michelle Lee to serve as the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office (USPTO). Ranking Member Patrick Leahy (D-VT) was quick to urge the Senate to confirm Lee, who has been pending since last year.

The 2015 Innovation Festival will be held on September 26th & 27th and will explore how today’s inventors are creating the world of our future. In preparation for the event, the USPTO and the Smithsonian are now accepting applications of inventors interested in exhibiting their inventions at this year’s event.

The USPTO will soon publish the Final Rules governing processing and examination of international design applications filed pursuant to the Hague Agreement. The Agreement and the USPTO’s Final Rules are all expected to go into effect on May 13, 2015. U.S. design patents resulting from applications filed on or after May 13, 2015 will have a 15 year term.

SAWS is not a minor agency-internal policy that has no impact on applicants. Accordingly, the agency should have gone through official rulemaking (e.g., notice-and-comment) processes. Currently, the program structure does not give any clear indication as to which applications will be designated as SAWS applications and does not provide applicants with notice of such designations. Both of these issues violate procedural due process. Had the agency complied with rulemaking requirements, commenters would have likely identified such issues and the USPTO may have been able to address them.

This latest budget increases the amount of money that will be available to the United States Patent and Trademark Office, although the amount specifically appropriated is less in FY 2016 than it was in FY 2015. This has lead some to incorrectly claim that the USPTO will have access to less funding in FY 2016 compared with FY 2015. According to the IPO, the FY “2016 budget proposes that the agency will draw from its operating reserves and other income to fund its total estimated obligations of $3.499 billion, including enhanced investment in its IT infrastructure.”

Earlier today the United States Patent and Trademark Office released the promised patent eligible subject matter examples, which together with the recently released guidance will give applicants, patent prosecutors and patent examiners more information about how the USPTO interprets the state of the law in this all important area. The USPTO guidance with respect to biotechnology has been much further…

She then pivoted to address the other side of the issue, which relates to issuing patents that should never have been issued in the first place. Lee explained: “I’ve see the effect of patents that should not have issued, or that have issued with a scope that is too broad. There is a also a cost associated with that as well… On average a start-up may get between $10 to $15 million to last over a number of years, and there are statistics that indicate that patent litigation can cost cost well over $1 million. So you can see if there is abusive litigation or a patent that should not have issued, there is a cost to our businesses.”

Drew Hirshfeld, Deputy Commissioner for Patent Examination Policy, went over the highlights of the USPTO interim guidance, explaining “first, we were able to narrow the funnel that we use to determine which claims should be analyzed for subject matter eligibility.” In this regard Hirshfeld was discussing how the USPTO modified the proposed guidance, which was initially released for comment and the guidance that was release in December 2014. In the proposed guidance from March 2014, the USPTO would have had examiners apply the patent eligibility matrix if the claims “recited or involved” a judicial exception to patent eligibility. In the final guidance, Hirshfeld explained, that the USPTO opted for “directed to” language instead, which is narrower than the expansive “recited or involved” standard.