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New Patent Fees Coming

The US Patent and Trademark Office issued a proposed fee adjustment today. The large-entity fees are going up.

That, of course, impacts the small- and micro-entity fees, since those fees are expressed as a percentage of the large-entity fees (50% reduction for small entities, 75% reduction for micro entities). The Notice of Proposed Rulemaking won’t be officially published until Monday, 3 October, but the unofficial version is available now. The increases (and, of course, the fee adjustments are mostly increases) aren’t big, but they are there. It’s important for the patent applicant to be aware of them.

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USPTO Patent Examination and Procedure Training Coming Up

From the US Patent and Trademark Office:

The USPTO will host a three day training course on examination practice and procedure for members of the public as part of the Stakeholder Training on Examination Practice and Procedure (STEPP) program. The training will be held November 15 – 17 on the USPTO’s Alexandria, Virginia campus.  

This training is intended for those who have recently passed the Patent Bar for the purpose of practicing before the USPTO. The training will make use of statutes, rules, and guidelines relevant to practicing before the USPTO. The course is led by USPTO trainers and is based on material developed for training patent examiners and other employees. More information and a proposed upcoming course schedule is available on the USPTO STEPP program web page

 STEPP falls under the Excellence in Customer Service pillar of the USPTO Enhanced Patent Quality Initiative (EPQI), which ensures that the agency continues to issue high-quality patents well into the future. EPQI is a set of initiatives with goals toward strengthening work products, processes, services, and how the USPTO measures patent quality at all stages of the patent process.
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New Visitors at My Office

Pokémon Go came out a couple of weeks ago. The Pokémon are showing up at my office in droves. Apparently they want my help with the legal issues they encounter with battling other Pokémon. They need to set up franchises and businesses, they need to protect their battle rankings, and they certainly need to protect their good names in business.

JynxOnMyComputerOne of my earliest visitors was a Jynx; she arrived and sat on my computer a couple of days ago. She wanted an LLC set up. I of course told her I’d be happy to do that for her.

ParasIsHappyParas came by later and wanted a patent application filed. We got that done for it post haste. Paras is delighted.

 

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What Is the DOJ Thinking?????!

The Department of Justice has basically denied songwriters a living wage from their hard work. 

Yuck. There is some light at the end of this tunnel, I don’t see a lot of it.

This is administrative law. Admin rulings like this can be appealed at the District Court level, but not for content per se; only for abuse of power. Since there is 60-year-old precedent in place, and since federal courts are all about precedent, it will (not “would”; “will”) take a really good litigator to convince the judge to rule against the DOJ (that’s not me; I’m a transactionalist). Once it’s in the court system, it can proceed through the appeals process like any other case.

Even though I am not a litigator, it’s always fun to do some backseat driving in cases like this. I’d do a bit of forum shopping before I would take this to the District Court. Whoever brings the admin appeal to the District Court should be sure to bring it in either the US District Court for the Southern District of New York (that court is king of copyright and performing arts) or in the US District Court that covers L.A. and Hollywood (that court is the other king of performing arts). That shouldn’t be a tough one; songwriters live in droves in those places. The lawyer would just need a local client to bring this to the attention of one (or both) of those two courts. If it gets brought in both places (two different plaintiffs), hope to God the rulings disagree with each other. That makes the appeal easier to get through the chinks, especially if they appeal to the 2nd and 9th Circuits and those rulings disagree. That could turn it into a SCOTUS case … if SCOTUS grants certiorari. That’s a big “if.”

 

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Cuozzo v. Lee, 579 US ____ (2016)

I was present in the Courtroom for the announcement of the Cuozzo decision by SCOTUS. This decision makes it clear that inter partes review by the USPTO is not appealable, and that the USPTO can institute such review sua sponte (by its own initiative). It’s an interesting decision.

35 USC §314(d) says that the “determination by the [Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” (Emphasis added.)

35 USC §312 says that petitions must be pleaded “with particularity.” Those words, in its view, mean that the petition should have specifically said that claims 10 and 14 are also obvious in light of this same prior art. Garmin’s petition, the Government replies, need not have mentioned claims 10 and 14 separately, for claims 10, 14, and 17 are all logically linked; the claims “rise and fall together,” and a petition need not simply repeat the same argument expressly when it is so obviously implied.

The “No Appeal” provision’s language must, at the least, forbid an appeal that attacks a “determination . . . whether to institute” review by raising this kind of legal question and little more. §314(d).

Moreover, a contrary holding would undercut the Patent Office’s significant power to revisit and revise earlier patent grants. Congress would not likely have granted the Patent Office this reexam authority if it had thought that the agency’s final decision could be unwound under some minor statutory technicality related to its preliminary decision to institute inter partes review. Congress has told the Patent Office to determine whether inter partes review should proceed, and it has made the agency’s decision “final” and “nonappealable.” §314(d). SCOTUS’s conclusion that courts may not revisit this initial determination gives effect to this statutory command.

However, the Court limits its green-lighting of the USPTO’s unappealable reviews: “… we need not, and do not, decide the precise effect of §314(d) on appeals that implicate constitutional questions, that depend on other less closely related statutes, or that present other questions of interpretation that reach, in terms of scope and impact, well beyond “this section.”” The Court does not “…categorically preclude review of a final decision where a petition fails to give “sufficient notice” such that there is a due process problem with the entire proceeding, [or] enable the agency to act outside its statutory limits by, for example, canceling a patent claim for “indefiniteness under §112” in inter partes review.”

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On Admission to the SCOTUS Bar

It’s done.

I am now a member of the bar admitted to practice before the United States Supreme Court. I have met all their experience, character and fitness requirements; Chief Justice Roberts granted the motion to admit me on Monday, 20 June 2016.

So what?

For most people, it’s not a big deal when a lawyer gets admitted to this bar; SCOTUS air is pretty rarified and not a lot of cases that apply to the Court actually get heard. Your likelihood of ever getting a case in front of the Nine Wise Ones are probably pretty low. However, when your case IS granted certiorari (i.e., the Court agrees to hear it), you need a lawyer admitted to that bar to argue it before the bench for you.

For the lawyer, it’s a very big deal indeed. This is the highest court in the United States. It’s seriously cool to be on the roster of lawyers allowed to file and argue a case here. Will I ever actually argue a SCOTUS case? I certainly hope not. But it’s nice to have this cannon in my arsenal.

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USPTO’s New STEPP Program

From the USPTO’s website:

“The Stakeholder Training on Examination Practice and Procedure (STEPP) program is administered by the Office of Patent Training (OPT) under the third pillar (Pillar 3, Excellence in Customer Service), of the  Enhanced Patent Quality Initiative (EPQI) and is a new and important part of the USPTO’s mission to deliver intellectual property information and education to external stakeholders.

Training delivered through STEPP is designed to provide external stakeholders with a better understanding of how and why an examiner makes decisions while examining a patent application. In person courses are led by USPTO trainers and based on material developed for training employees of the USPTO.  

Currently, it is anticipated that courses provided through STEPP will be free to attend.  In addition, the USPTO is in the process of determining the applicability of providing CLE credits for attending STEPP courses; however, CLE credit cannot be earned for the first scheduled training session.”

The first scheduled training session is July 12-14 at the USPTO’s campus in Alexandria, VA.

For more information, see the USPTO’s website.

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Patent Maintenance Fee Storefront Now Available from the USPTO

From the USPTO:

“The new Patent Maintenance Fees Storefront is now available. Customers can look up and pay patent maintenance fees using the patent number and patent application number, as in the retired system. We recommend reviewing the information here and on the Fee Payment Transition Resources page to learn more about the Patent Maintenance Fees Storefront’s enhanced features.”

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Pets and Property

This post is a little off-topic.

Dog ownership isn’t about intellectual property and cases that crop up in the course of dog ownership are not about intellectual property, but there’s an interesting case brewing in Georgia for all those who love their dogs … cats … hamsters … goldfish … octopods … hermit crabs … animals. As an animal lover, I cannot resist posting about it.

An owner family spent many thousands of dollars on the care of their pet dachshund, who may have been given a drug in error by the kennel at which they boarded the dog. The dachshund eventually died of its injuries from that overdose, and the owners sued the kennel, demanding that the kennel pay the hefty vet bills for their beloved pet.

If the dog, not a purebred or service animal, were treated as the law habitually treats pets, the owners would be owed precisely zero in damages. But these folks argued that this dog was special to them, she was their friend, their companion, their family member; she was not just property and should not be valued as such.

The high court in Georgia is considering whether a pet — regardless of lineage or training — is worth more than its monetary sale value. How should damages to beloved family pets be decided?

Let’s hope Georgia makes the right decision and overturns centuries of case law that holds that a pet is nothing more than property, like a chair or a table.