Archive for the ‘Patent’ Category
America Invents Act
Thursday, September 29th, 2011
America Invents Act Presentation
I can’t do a better job of dissecting this complex new patent legislation, the first overhaul of the patent code since the early 1950s, than does Professor Jeff Hawley, who teaches at my alma mater, the former Franklin Pierce Law Center (now University of New Hampshire School of Law). His video and presentation slides are definitely worth a look.
Tags: America Invents Act, Patent, Patent Law
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America Invents Act Is Signed …
Monday, September 19th, 2011
This is the first major overhaul of the patent system since 1952, and major it is. Here’s a line-up of some of the changes that the new law puts into effect.
The Biggie: Today, the patent system in the USA is a so-called “first-to-invent” system; an inventor who wants to prove that they invented something first can easily force another party into a protracted legal battle. However, the first-to-file system put into place by the America Invents Act would make things much clearer. In its most general terms, if you filed for the patent first, you get the protection.
Post-Grant Review: The Act creates a new process by which to challenge a patent within nine months of its issuance by presenting evidence directly to the Patent and Trademark Office itself, which will review the merits of the argument.
Fee Collections: The Patent Office can now set its own fees rather than relying on Congress to set reasonable fees for it. Congress will continue to have some budgetary power, but fees collected above the Patent Office’s budget will be placed into escrow, and the Patent Office can petition for their release. Fees will go up for some filers, but small entities may very well see fee reductions.
The bill does NOT include any new process for determining damages included in the America Invents Act. Jury awards for patent violations may continue to be huge for the foreseeable future.
The America Invents Act does little to clear up the controversy surrounding whether a “business method” patent or a software patent is a reasonable thing. There are provisions that may come very close to excluding software dealing with taxes from being patentable, for example.
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Star Trek Technology is Swedish
Wednesday, September 7th, 2011
Star Trek influences many aspects of our society; flip phones, for example, came from Captain Kirk’s flippy communicator. Now, it seems, the Romulans are getting in on the 21st Century act. A Swedish company, BAE Systems, has conjured up a cloaking device. See Bae Systems’ cloaking device.
I love it when sci fi isn’t so fi anymore.
Tags: Patent, science fiction, Star Trek, technology
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Patent Reform Bill is Back in Congress
Sunday, January 23rd, 2011
This time, it’s the current patent law that is coming under legislative scrutiny. Sen. Patrick Leahy (D-VT) says they’ll introduce the legislation next week.
I don’t know yet what I think of this bill. I don’t think I like the idea that damages are limited in patent infringement cases; patent infringement should hit the infringer hard in the wallet. However, I sit on the fence when I see huge awards coming out of tiny infringements. The courts need to exercise a little bit of common sense: tiny infringement should mean tiny award; big infringement should mean big infringement. If juries bring back huge awards for tiny infringements, maybe it’s time for the judge to set aside the award and make an award that is more in line with the size of the infringement.
That’s just my opinion.
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Video Addition to Our Repertoire
Sunday, October 17th, 2010
I’m figuring out how to upload video to YouTube. The first video, a high-level overview of the patent process, is below. Please feel free to subscribe to our channel.
Now I need to figure out how to make the video fit into the width of this blog….
Tags: Patent, Patent Process, US Patent, Video, YouTube
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Ariad Pharmaceuticals, Inc. v. Eli Lilly and Co., Fed. Cir., No. 2008-1248, 3/22/2010.
Tuesday, March 23rd, 2010
From the American Intellectual Property Law Association’s website:
“Section 112, first paragraph of the Patent Act requires that a patent specification not only describe the manner of making and using a claimed invention, but also separately requires a written description of the claimed invention itself, the en banc Federal Circuit held March 22, 2010, in a 9-2 decision.”
…
“The Court rejected the argument that the required written description of the invention is only for purposes of identifying what is to be enabled, concluding that the statutory phrase “to enable” pertains only to the required description of making and using the invention. If Congress meant to require only a description of enablement, the statute would have been written differently, Judge Lourie pointed out. He added that the Patent Act has always required a description of the invention as a basic element of the quid pro quo bargain for exclusive rights.”
I’ve been writing patent applications to include a written description of the invention itself since I started writing patents. It’s just common sense: a patent, which is an exercise in disclosure, requires that the inventor disclose not only what the invention is but also the best mode of making and using the invention. How do you do that without providing a written description of the invention?
Read the slip opinion here.
Tags: 35 USC 112 1st Paragraph, Court of Appeals for the Federal Circuit, Patent Law, Written Description Requirement
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USPTO Pilots Program to Accelerate the Patent Process for Small Entity Inventors, USPTO Press Release, 09-26
Monday, February 8th, 2010
Now isn’t this interesting. If a small inventor (presumably this means someone who can legitimately click “SMALL ENTITY” on the patent application forms) abandons one application, they can get another application moved up in the system.
I’m not quite sure how abandoning one invention in favor of another protects an inventor, but it’s certainly an option worth discussing with your patent attorney. It’ll save you the cost of a double patent prosecution, if nothing else, but it doesn’t sound like it will protect the abandoned invention at all, so I intend to advise my clients to consider this very carefully before proceeding.
The USPTO is always trying to come up with ways to diminish their backlog of patent applications that await first office actions. Certainly getting an inventor to abandon an application would do that, but at what cost to the inventor?
Clearly, this option is not for everyone. Maybe for some, yes, but not for everyone.
The other thing they’re doing may work better for the reduction of the backlog in the long run: they’ve got a hiring frenzy going on right now. They’re looking for warm bodies to throw at the backlog (not always a good thing, but not always a bad thing, either). If you have any sort of technical expertise at all, and you like the idea of living in the DC/northern Virginia area, visit their website at www.uspto.gov to apply for the position of Patent Examiner. They have many open slots.
Posted in Patent, US Patent & Trademark Office | No Comments »
14th Annual Independent Inventors Conference
Wednesday, October 14th, 2009
14th Annual Independent Inventors Conference.
It will be held at the USPTO on November 5-6, 2009. The cost of registration is $120.00, which covers both days.
If you are an inventor, independent or not, this conference is worth attending. No better place to get information than straight from the horse’s mouth, and, in this case, the USPTO is the horse.
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"First-to-file" rule being looked at by Senate – to decrease the patent application backlog??
Tuesday, October 13th, 2009
According to the Wall St. Journal today:
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“Although the office has traditionally operated with a backlog, the pile has increased in recent years. Even though there has been a drop-off in applications during the recession, it hasn’t helped examiners catch up. One reason is that overtime has been cut, so examiners spend fewer hours processing applications. What’s more, because the office is entirely funded by user fees, the dropoff has left it with a budget gap.
“Patent rules haven’t changed significantly in five decades, despite many attempts by Congress.
“This year, a fragile compromise between pharmaceutical and technology companies on a Senate bill could make a difference. The bill would institute a “first-to-file” system that would award patents based on the date an application is filed, rather than on the date of invention was made.”
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A first-to-file patent priority system. Wow.
That would match with much of the rest of the world’s patent practice, so it would go a long way toward harmonization of worldwide patent law. It is, though, a BIG break from the way the US has traditionally handled patent application priority, based on a first-to-invent system. Here’s the difference:
A first-to-file system is a race to the patent office. Whoever files first wins. The actual date of invention is irrelevant.
A first-to-invent system grants patent rights based on proof of the date of invention. The date of filing is the presumptive date of invention, but the inventor, should an application be filed by someone else on the same invention, has the opportunity to prove that she made the invention first and worked diligently on the invention until the date of filing. This is called an “interference.”
I didn’t know that there were so many interferences before the USPTO that instituting a first-to-file system would make a difference in the patent application backlog. While I’m all for a first-to-file system for reasons of international patent law harmonization, I think it’s folly to believe that instituting a “first-to-file” system would make the least dent in the patent application backlog.
So prove me wrong.
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2008 National Medal of Technology and Innovation Awardees Announced
Friday, September 18th, 2009
Click here for the story …
“The 2008 National Medal of Technology and Innovation winners are:
•Dr. Forrest M. Bird for his pioneering work in the field of respiratory and cardiopulmonary care including the revolutionary BABYBird®. This device dramatically reduced the infant respiratory failure mortality rate from approximately 70 percent to 10 percent. His more recent medical invention of Intrapulmonary Percussive Ventilation (IPV) ® concepts have reduced pulmonary failure in the most critically injured military and civilian burn patients from about 75 percent to 5 percent. Dr. Bird’s innovations have saved millions of lives.
•Dr. Esther S. Takeuchi for the development of the silver vanadium oxide battery technology which powers the majority of today’s implantable cardiac defibrillators and innovations related to other enabling medical battery technologies that power implantable pacemakers, implantable neurostimulators and left ventricular assist devices. Dr. Takeuchi’s innovations have saved and dramatically improved the quality of hundreds of thousands of human lives.
•Dr. John E. Warnock and Dr. Charles M. Geschke for their pioneering contributions that spurred the desktop publishing revolution and for changing the way people create and engage with information and entertainment across multiple mediums including print, Web and video.
•International Business Machines Corporation for the IBM Blue Gene supercomputer, which re-established United States leadership in high performance computing. Blue Gene’s systems architecture, design and software have delivered fundamental new science, unsurpassed speed and unparalleled energy efficiency, which have had a profound impact on the worldwide high-performance computing industry.”
On a personal note, Dr. Bird’s invention, taken to a new level, saved my daughter’s life about five years ago, so I’m delighted he won this prestigious award. Congratulations are due all around, so congratulations to the 2008 National Medal of Technology and Innovation!
Tags: 2008 Medal of Technology and Innovation, Charles M. Geschke, Esther S. Takeuchi, Forrest M. Bird, IBM, John E. Warnock
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