Posts Tagged: "patent"

In this case, the Supreme Court considered an arrangement by which brand firm Solvay paid generics Watson (now Actavis) and Paddock roughly $30 to $40 million to delay entering the market with generic versions of testosterone gel. The Eleventh Circuit upheld the activity, concluding that “absent sham litigation or fraud in obtaining the patent, a reverse payment settlement is immune from antitrust attack so long as its anticompetitive effects fall within the scope of the exclusionary potential of the patent.” The court explained that “[p]atent holders have a ‘lawful right to exclude others from the market’” and that a patent “conveys the right to cripple competition.”

The Supreme Court reversed the Eleventh Circuit, concluding that, while a valid patent allows a patentee to charge “higher-than-competitive” prices, “an invalidated patent carries with it no such right.” The Court recognized the policy encouraging settlements. But for five reasons, it found that that policy did not dictate immunity for pay-for-delay settlements.

Ever since March 19, 2013, I have been feeling slightly uncomfortable asking one question to some of my new clients. What is that question you ask? It is: “What was your household income in the preceding calendar year?” So, why am I asking a question that makes this Registered Patent Attorney sound more like a Certified Public Accountant? Answer: The AIA.

One application assigned to IBM would protect a system of allocating software resources to a user’s network account once their presence is detected at a facility. An patent awarded by the USPTO protects an IBM invention involving a visual-based help tool for button icons within software applications. IBM is also involved in developing a number of systems to aid computer users on a personal basis. One application describes a system of ordering computer icons on a user interface based on contextual factors, like the time of the week. Two related applications would protect a system of analyzing web applications for possible malicious data, protecting millions of computer browsers. Lastly, we also look at a newly devised system of filtering online shopping reviews based on the characteristics of an individual shopper.

By holding that Myriad’s claimed cDNA was patent-eligible, Thomas’ opinion reaffirms the major holding in Diamond v. Chakrabarty that claimed subject matter which truly only the “hand of man” can make (not simply snipped out of “mother nature”) will make it to the patent-eligibility zone. (Whether that same cDNA makes it to patentability zone under 35 U.S.C. § 102 and especially under 35 U.S.C. § 103 is another and far more important story.) I would also be careful in reading too much into Thomas’ statement (which is also dicta) about “very short series of DNA which may have no intervening introns to remove in creating the cDNA” might be patent-ineligible. By definition, cDNA (i.e., complementary DNA) is a DNA molecule which is created from mRNA (i.e., messenger RNA) and therefore lacking the introns in the DNA of the genome. Thomas (or his clerks) may not have realized that what they were talking about isn’t what would be defined (at least by a molecular biologist) as cDNA. So the impact of that statement should have minimal, if any impact.

The latest incarnation of the SHIELD Act was introduced on February 27, 2013, and changes direction as if the first iteration were waived off in disgust before it could even lower its gears. SHIELD Act 2, scuttles the “reasonable likelihood of succeeding” idea floated and introduces a new tool aimed at walling off the troll: a bond requirement. If the plaintiff is not an original inventor or assignee, did not make a substantial investment in practicing the invention, or is not a university, that troll must post a bond. Like SHIELD Act 1, SHIELD Act 2 does not require the troll to fire the first shot. Interestingly, under SHIELD Act 2, Facebook would have had to post a bond in its battle against Yahoo! and theoretically an involuntary but necessary party joined as a plaintiff could be required to post bond.

“Patty Sue Just Won’t Go Away.” So went a 2002 article in the San Francisco Chronicle, one of a many articles spanning several years about Patricia McColm, a vexatious litigant blacklisted since 1994. She was the Most Vexatious Pleader of the vexatious litigants. If she were a patent attorney, frightened examiners would give her a 100% allowance rate without amendments. If the anti-joinder provisions of the America Invents Act (“AIA”) applied to Patricia McColm, she would have her own clerk’s office. One draws similarities between the problems presented by firms such as Intellectual Ventures, Acacia, and Lodsys and those presented by Ms. McColm, and a flurry of proposals were recently introduced in Congress.

The baffling aspect of the opinion is that the Court seems to agree that both the DNA of claim 1 and the DNA of claim 2 are man-made and do not occur in nature. Of claim 1, the Court states that “isolating DNA from the human genome severs chemical bonds and thereby creates a nonnaturally occurring molecule”. Page 14 (emphasis added). Of claim 2, the Court states that “the lab technician unquestionably creates something new when cDNA is made.” Page 17 (emphasis added). According to the way many patent attorneys (and Judge Rader) think, that should be sufficient to comply with §101. But the Court does not see things this way.

Obama’s action plan was heavily influenced by a report, “Patent Assertion and U.S. Innovation,” which was released by the President’s Council of Economic Advisers, the National Economic Council, and the Office of Science & Technology Policy. The full text of the report can be read here. It is surprising that a report that was prepared by such an august and high-level set of entities could be so blatantly biased and one-sided. The body of the report slams PAEs and points to everything that’s bad about them. It creates an artificial distinction by referring to “good” patent middlemen as “patent intermediaries,” although there is no indication in the report of what are the characteristics of a good “patent intermediary” versus an evil PAE.

USPTO to Examiners: “As of today, naturally occurring nucleic acids are not patent eligible merely because they have been isolated. Examiners should now reject product claims drawn solely to naturally occurring nucleic acids or fragments thereof, whether isolated or not, as being ineligible subject matter under 35 U.S.C. § 101.”

Interest in design patents is increasing, in part, because they can be obtained relatively inexpensively and quickly. Dennis Crouch recently reported that from 2010-2012 the majority of design patents issue within 12-months of their filing date (see “Design Patents Are Still Relatively Quick” by Dennis Crouch, Patently-O, January 21, 2012,. In addition, most design patents issue without amendment and with little or no file wrapper estoppel, potentially leading to a “cleaner” patent with potentially fewer issues to be raised in litigation that could negatively affect the scope of the patent. The number of design patent filings has increased approximately 20% since 2009 (Robert Olszewski, “State of the Technology Center,” USPTO Design Day 2013), and, with this increase it is reasonable to expect an increase in design patent enforcement

Alexsam, Inc. v. IDT Corporation is a non-remarkable patent infringement decision with a remarkable dissent. What is noteworthy about the case is not the majority opinion, but the dissent by Judge Haldane Robert Mayer. Mayer’s dissent discusses why the patent is invalid under 35 U.S.C. § 101, which is curious because the 101 issue was not raised by the defendants during the appeal nor even mentioned during oral arguments. While Mayer’s dissent is not a binding opinion, if another judge on the panel signed on to Mayer’s reasoning then the patent would have been held invalid based on an issue not raised during the appeal.

As a constant developer of new technologies, Microsoft is seen often as an assignee on a great many U.S. Patent & Trademark Office patents and applications every week. This week on Companies We Follow, IPWatchdog is taking a look at this corporation’s more intriguing patents as of late, including many of those that will affect consumer media use.

A few of the patent applications profiled here detail specific improvements to consumer entertainment, especially where movies are concerned. One application would protect a system of rendering video elements as separate from browser elements for easier user customization. Another application describes a more intuitive system of digital recording for live events. A third application in this area improves movie recommendation systems by taking contextual factors into account.

Marketing and advertising interests for businesses are also showcased in a few official documents. One patent we’re including here protects a method of creating an individual consumer profile based on web events, like visiting a webpage. Microsoft has also filed a patent application for a system of monetizing video recommendation portals for business advertising.

Keurig makes and licenses brewers and beverage cartridges (pods) that are known as “K-Cups.” JBR makes beverage cartridges that are known as “OneCups,” which are made to be used with the Keurig brewers. Back in January 2013, the Court held a Markman hearing, which is a pretrial evidentiary hearing that’s typically held whenever someone alleges patent infringement, and a memorandum and order interpreting certain pertinent terms used in two of the patents at issue was issued in March 2013. The current case deals with JBR’s motions for summary judgment with respect to the issue of infringement of the entire design patent (referred to as the ‘362 patent) and certain specific claims associated with two of the brewer patents (the ‘138 and the ‘488 patents).

Articles, such as this one, tout arbitration as an alternative: faster, cheaper and more confidential than litigation, with other benefits as well. However, in actual practice, relatively few patent disputes are submitted to arbitration. Worldwide, only a few hundred requests to arbitrate patent disputes are filed each year. By comparison, in 2012 more than 5,000 patent lawsuits were filed in U.S. District Courts, not to mention courts of other nations. So what’s the problem? If arbitration is so great, why are so few patent disputes resolved in arbitration? More important, are patent litigants missing something? Should they rely on arbitration more often?

From an end-user’s perspective, it shouldn’t matter whether the normalization is done in hardware, in software or in a combination of hardware and software. And from the perspective of an interface designer, one would expect to be able to protect an invention that takes raw data from human input and causes a computer to scroll “intuitively” irrespective of whether implemented in hardware, software or a combination thereof. But therein lies our current §101 case law predicament.