Posts Tagged: "USPTO"

Buffalo is a small Texas town of less than 2,000 people. On the way into town, school zone signs flank both sides of a speed limit sign. I drove through on a Sunday, when school zones do not apply, so I didn’t slow down. Almost immediately, the police lights lit up and I was awarded a speeding ticket. When I started to fight the ticket, I was met with resistance at every level of city government. It quickly became clear that the speed trap was a significant source of revenue for the small town and that the judge, mayor, city employees and even the officer who pulled me over all benefited from that revenue. So, I just paid the ticket and walked away. It is the very definition of a corrupt system when those who make the rules and decisions receive financial benefit from the results of their rules and decisions. New Vision Gaming v. SG Gaming, Inc. (Federal Circuit No. 2020-1399) illustrates this phenomenon as it applies to the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB).

An Administrative Law Judge (ALJ) at the International Trade Commission (ITC) recently determined that Samsung Phones violate key patents on magnetic emulator technology for contactless payment systems from Pittsburgh’s Dynamics, Inc. We have been collaborating for years in the academic and public sectors on issues raised in that case, and are consulting consult with Dynamics because we think these issues are vital to our innovation ecosystem, our national economy, and our commitments to international partners. It is especially illustrative of the serious risks facing these vital public interests that far too frequently when there has been a full and fair adjudication determining that there has been infringement of multiple patents and that those patents are neither invalid nor unenforceable, the headline more than suggests that the infringer has been cleared of responsibility.

The U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) released its ninth annual International IP Index yesterday, finding that the United States, Japan and Europe remained at the top of the global intellectual property rankings, while emerging markets like the United Arab Emirates, China and Mexico continued to improve their scores. Despite the pandemic, the overall global IP environment improved, and the report underscored the critical role that strong IP economies played in combating COVID-19. The report, titled “Recovery Through Ingenuity,” covers the IP framework in 53 global economies across 50 unique indicators. 32 of these 53 economies had positive improvements in their scores over the 2020 report.

It was another typical Patent Trial and Appeal Board (PTAB)/district court split this week, with 33 petitions (two of them post grant reviews [PGRs]) and 71 district court complaints filed. There’s a seemingly new non-practicing entity (NPE) campaign by Jeffrey Gross, Netcom Global Solutions, LLC, with a few new filings, a Chinese e-Bike manufacturer, Hangzhou Chic Intelligent Tech., Co., Ltd & Unicorn Global, Inc.] who has sued a number of companies over U.S. patents in district court; and somehow the Symbology (and other Rothschild) suits continue to find defendants to sue, this time targeting mall storefronts David Yurman and Perfumania.com. A number of petitions were filed against NPE K.Mizra (also associated with NPE Ginegar LLC, who last week continued to assert U.S. Patent 9,367,531).

As previously reported on this blog, a bipartisan group of senators recently reintroduced a bill in Congress called the “Inventor Diversity for Economic Advancement Act of 2021,” or the ‘‘IDEA Act,’’ S.632; H.R.1723.  The Senate Committee on the Judiciary is scheduled to hold its hearing on the IDEA Act this Thursday morning.  Citing a report that “only 22 percent of all U.S. patents list a woman as an inventor,” the sponsor’s press release explains that the bill’s purpose is “to close the gap that women, minorities, and others face when procuring patent rights in the United States.” To advance this putative goal, the bill adds Section 124 to the Patent Act that will require the U.S. Patent and Trademark Office (USPTO) to annually collect and report personal demographic data from patent applicants including “gender, race, military or veteran status, and any other demographic category that the Director determines appropriate, related to each inventor listed with an application for patent.”  Accordingly, the USPTO Director would be granted plenary authority to collect information on “any other demographic category” such as those the sponsors have already identified in their previous version of the bill, namely: ethnicity, national origin, sexual orientation, age, disability, education level attained, and income level…. Unexpectedly, however, this bill would actually harm small business and underrepresented inventors. As explained below, this legislation is contrary to patent law; it proposes a dangerous method for injecting identity politics at the USPTO, where it never has nor should play any role, and where there is no evidence that the USPTO has displayed prejudice or discrimination.

Senators Thom Tillis (R-NC) and Tom Cotton (R-AR) sent a letter on Monday to the acting Director of the United States Patent and Trademark Office (USPTO), Drew Hirshfeld, asking him to “initiate a pilot program directing examiners to apply a sequenced approach to patent examination,” rather than the traditional “compact approach.” This proposed pilot program would require a select group of examiners and applicants who elected to participate in the program “to engage in a full examination of the grounds of patentability and then, once that process is complete, a full examination of the grounds of eligibility.”

On March 17, the U.S. Court of Appeals for the Fourth Circuit reversed and remanded a decision from the U.S. District Court for the Western District of North Carolina in a Lanham Act statutory interpretation case. The case involved plaintiffs Snyder’s-Lance, Inc. and Princeton Vanguard, LLC (collectively “Princeton Vanguard”) and defendant Frito-Lay North America, Inc. (“Frito-Lay”). The district court held that a party to a trademark dispute who appeals a decision of the Trademark Trial and Appeal Board (TTAB) to the U.S. Court of Appeals for the Federal Circuit (CAFC), resulting in the vacatur, remand and issuance of a new decision by the TTAB, may not then seek judicial review of that second decision in federal district court. The Fourth Circuit disagreed and ultimately reversed and remanded the case back to the district court.

The United States Patent and Trademark Office (USPTO or Office) earlier today published a Request for Comments in the Federal Register asking for public input into proposed changes to the General Requirements Bulletin for Admission to the Examination for Registration to Practice in Patent Cases Before the United States Patent and Trademark Office (GRB). The Office is considering changing the criteria applicable in ways that would streamline the process for both applicants and the Office of Enrollment and Discipline (OED), the office within the USPTO tasked with administering the Patent Bar Exam and implementing the rules pertaining to admission to practice before the Office.

This week in Washington IP news, the Senate Judiciary Committee will debate passage of the IDEA Act and the ARTS Act, while House subcommittees will explore pathways to sustainable technologies, especially those used to develop aviation fuel from biomass. The Information Technology & Innovation Foundation hosts a series of events this week, including an event to clarify march-in rights under the Bayh-Dole Act featuring Joe Allen, a key staffer for Senator Birch Bayh during passage of Bayh-Dole and a regular IPWatchdog contributor. The U.S. Patent and Trademark Office will also host its regular trademark and patent workshops, as well as events to celebrate Women’s History Month, including a Women’s Entrepreneurship Symposium event focused on funding resources for women entrepreneurs.

Gloria Steinem wrote Moving Beyond Words: Age, Rage, Sex, Power, Money, Muscles: Breaking Boundaries of Gender in 1994. Steinem was an iconic figure in a movement that began several decades earlier and continues today to close the gender gap and ensure women have equal pay for equal work, among many other issues. In the intellectual property world, this movement is presently playing out in efforts to bring more women into STEM fields, as well as the patent bar and inventorship. There has been much debate about whether these efforts are misguided and how we should proceed, so IPWatchdog reached out to the experts—women at the top of their fields in IP—for their take on the challenges that they’ve faced and ways forward. From personal experiences to practical advice, here is what they had to say.

A strong and predictable intellectual property system is crucial to protecting and promoting American innovation around the globe. It allows American businesses of any size to compete globally, creating millions of American jobs. Strong intellectual property rights provide a strong foundation for America’s role as the world’s innovation and technological leader, powering our world with the next generation of technology to help kids learn, to connect remote workers, provide better access to healthcare and help make our planet more sustainable. The role of innovation (from vaccines to communication technology, content creation, etc.) has never been more crucial than during the ongoing COVID-19 pandemic. The ability to protect what one creates or invents grows our economy and GDP, generates incentives to continue the innovation process, and makes our country safer and more secure from foreign adversaries.  

On March 16, the European Patent Office (EPO) released the Patent Index 2020, which gives the public a snapshot view of the filing activities going on at the EU’s patent granting agency during the past year. Total patent application filings declined only slightly during 2020 to just over 180,000 patent applications, a reduction of 0.7% compared to the EPO’s 2019 patent filing totals. Despite a 4.1% decrease in patent application filings at the EPO, the United States still held the top spot among individual countries with 44,293 EPO patent filings. Patent application filing totals also dropped in Germany (down 3% to 25,954 filings) and Japan (down 1.1% to 21,841). The United States, Germany and Japan were ranked first, second and third, respectively, in the EPO Patent Index 2020.

Patent Trial and Appeal Board (PTAB) filings held at 25 this week, with one post grant review (PGR) and 24 inter partes reviews (IPRs); district court patent filings jumped significantly, however, to 95, with Cannon’s lengthy scorched-earth filings against dozens of competitors making up the bulk of that jump. The IPRs were propped up by a handful of Samsung-filed petitions against Aquis; Samsung also continued to trickle out petitions against Ericsson related to the now-infamous FRAND 5G rate case ping-ponging between China and the Eastern District of Texas. Hisense and LG filed a number of IPRs related to a semiconductor dispute with Polaris, and Qualcomm continued to battle Vector Capital-backed Monterey Research at the Board over non-practicing entity (NPE) semiconductor assertions, earning institution on at least three of the IPRs they’ve filed to date. And Amazon is having mixed luck with IPRs against a failed voice technology company they have a long history with.

As an update to my posts from 2017, 2019, and 2020, it has now been more than seven years since the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision. Yet the debate still rages over when a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none” (as eloquently phrased over 73 years ago by then-Supreme Court Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.). Further, it has been 10 years since famed venture capitalist Marc Andreessen wrote an influential op-ed piece in the Wall Street Journal titled “Why Software Is Eating the World.” This digital transformation where software is “eating the world” is undeniable.

On March 12, the U.S. Court of Appeals for the Federal Circuit (CAFC) granted Janssen Pharmaceuticals’ motion to dismiss Mylan Laboratories’ appeal and denied Mylan Laboratories’ request for mandamus relief, holding that the court lacked jurisdiction to hear Mylan’s appeal and that Mylan had failed to qualify for mandamus relief. In 2019, Janssen Pharmaceuticals sued Mylan Laboratories in district court for infringing U.S. Patent No. 9,439,906 (the ‘906 patent). In response, Mylan Laboratories petitioned the Patent Trial and Appeal Board (Board) for inter partes review (IPR) of the ‘906 patent, raising four grounds for the unpatentability of certain claims, all based on 35 U.S.C. §103. In opposition to the institution of the IPR, Janssen Pharmaceuticals argued that the IPR “would be an inefficient use of Board resources,” due to two co-pending district court cases: the suit against Mylan Laboratories and another against Teva Pharmaceuticals, arguing “that both actions would likely reach final judgment before any IPR final written decision.”