Gene Quinn (left) is a widely read commentator, a law professor and a patent attorney. In 1999 Gene launched IPWatchdog.com. Today IPWatchdog has over 110,000 monthly readers and has been recognized as the top IP Law blog for 2 of the last 3 years by the American Bar Association.
In addition to Gene's articles we publish a variety of articles from Guest Contributors who offer their unique expertise and commentary on a variety of issues. We also have several freelance journalists who write for us now as well.
Are Pharmaceutical Patents A Barrier to Access to Medicines? (May 21, 2013) - Dr. Kristina Lybecker takes on patent critics who say "patents kill," by brining up the real question: what really influences a population's access to medicines? Barrier are more prevalent in less developed nations without patent rights.
Pharma Update for May 2013 (May 21, 2012) - Ed Silverman, founder of Pharmalot, provides his monthly take on the news in the pharmaceutical industry worth knowing. This month he tells us about Ranbaxy's $500 million fine, a Children's Tylenol scandal in Korea for Johnson & Johnson, the fight over Plan B birth control and Bayer being sued over advertising Vitamins.
No Quanta of Solace for Farmer Bowman (May 20, 2013) - Eric Guttag explains that to understand the ruling in Bowman you must first understand Monsanto’s patented Roundup Ready® soybean technology.
Over 850 delegates from more than 100 countries are attending the three-day meeting from 24 to 26 April that is being chaired by the World Customs Organization (WCO) and hosted by Turkish Customs with the support of the Union of Chambers and Commodity Exchanges of Turkey.
United around a common goal to stop the trade in counterfeit and pirated products, the organizers and participants aim to share experiences and devise strategies to counteract this global phenomenon and the harm these goods can have on consumer health and safety, as well as intellectual property rights (IPR).
This article continues our Earth Day 2013 series with a look at the IPO Inventor of the Year Awards.
Four times over the past nine years the Intellectual Property Owners (IPO) Education Foundation has recognized inventors of green technologies as the Inventor of the Year. This trend is certainly not accidental given the growing interest in green technologies and the increased importance they will play as the global economy shifts from a carbon-based energy platform to more sustainable and environmentally friendly sources of energy.
Of course, we are many years away from a totally renewable energy economy. While there are some that are working on the “home run” solutions, many others work on important incremental advances. These incremental advances are what the patent system thrives on and particularly incentivizes. As you can see below, 3 of the 4 green technologies recognized by the IPO over the past decade relate to reducing energy consumption. The other relates to cleaning water, which saves lives in third-world and developing countries. Indeed, there are numerous ways to be green!
Will the IPO continue its recent trend and recognize a green innovation in 2013, making 5 out of the last 10 years a celebration of environmentally friendly technologies? That is at least in part up to the community. The IPO is currently looking for nominations for the 2013 Inventor of the Year Award, which will be handed out in a ceremony in Washington, DC, in December 2013. The nomination deadline is May 15, 2013.
In my first installment on Paragraph IV Certifications under Hatch-Waxman, I explored the basics of this “beast.” See A Primer on Paragraph IV Certifications: Into the Belly of the Hatch-Waxman Beast Part 1. In my second installment on Paragraph IV Certifications under Hatch-Waxman, I discussed one of the more litigated “trouble spots” for Paragraph IV Certifications, namely the “carve out” cases. See Carve Outs: Into The Belly of the Hatch-Waxman Beast Part 2. In my third and final installment, I’ll focus on probably the most contentious “trouble spot,” namely Hatch-Waxman “reverse payment” cases, now before the Supreme Court in FTC v. Watson Pharmaceuticals(renamed as FTC v. Actavis, Inc.) for which oral argument was recently heard. So let’s strap on our safety belts one last time, and dive back into the “belly” of this Hatch-Waxman “beast” to look at “reverse payment” cases.
“Reverse payment” cases are an outgrowth of a key feature I noted in my first article on the basics of Paragraph IV Certifications: the filing of an Abbreviated New Drug Application (ANDA) by the generic drug maker with a Paragraph IV Certification is treated as a technical act of patent infringement. After receiving notice of the Paragraph IV Certification, the patent owner/NDA holder has 45 days to bring suit, otherwise the FDA can move forward on approving the ANDA. Conversely, if the patent owner/NDA holder does bring an infringement suit within the prescribed 45 day period, the FDA cannot approve that ANDA for 30 months, unless the patent(s) that are the subject of the Paragraph IV Certification are earlier deemed invalid or not infringed in that suit.
Recycling has been a major concern in America for the past few decades, but our methods of recycling and commitment to green living could still see major improvement. The U.S. Environment Protection Agency reported that Americans created about 250 million tons of solid waste in 2010, most of that ending up in landfills or as combustible fuel, which can create a lot of air pollution. Only 85 million tons of this waste was recycled during that year.
Firefly’s Jayne Cobb wearing the poofball hat in question.
It should come as no surprise that a nerd such as myself is into Sci-Fi, so when news of the Fox / Firefly / Shiny Hat kerfuffle hit the ‘verse, I was naturally all over it like the Alliance on an illegal salvage operation.
For those of you who are totally missing out, Firefly was a briefly lived television show that aired on Fox in 2002. It only lasted for a few months before Fox yanked the plug (a most egregious decision that I shall never EVER forgive them for). In the years that followed, Firefly – the best space western you didn’t watch – gained a cult following that gives Trekkies a run for their money. In one of the episodes, the character Jayne Cobb receives a care package from his mother containing a homemade orange and yellow poofball hat. The hat wasn’t a focal point of the episode but fans of the show, known as Browncoats, can easily be identified at conventions by wearing this most cunning hat.
Despite collecting dust on the shelf at Fox for over a decade, the fans’ devotion to Firelfly has kept the series alive. If you’ve never been to a convention like ComiCon, it’s common to see folks dressing up as their favorite character from a comic, movie, or TV Show. There may be a Viper Pilot here, a 4th Doctor there, even a Stormtrooper or two. Browncoats wear the Jayne Hat. The hat is, and has been, a favorite item of do-it-yourselfers to sell on sites like Etsy.
Today our week-long Earth Day 2013 seriestakes a look at solar power technologies. To accomplish this we look at a variety of patent applications, as well as an issued patent, all of which relate to solar energy technologies that have been released by the USPTO within the past month or so.
Solar energy is one of the alternative energy forms that many believe can be an effective part of the new alternative energy that replaces our current carbon-based fossil fuel situation. Electricity generation from solar radiation creates no air pollutants and poses a minimal intrusion on the environment. However, solar radiation can be inconsistent based on time of day or weather, and large surface areas must be used to collect enough solar energy to generate a meaningful amount of electricity.
Four recent patent applications published by the U.S. Patent & Trademark Office and featured here below give an interesting insight into the future of solar energy generation. In most of these applications, we can see solar cell panel technology being applied to individual devices and machines, collecting enough energy to charge a battery or at least reduce energy used from other sources. These patent applications describe cars, digital cameras, irrigation systems and even digital cameras with solar energy collection technology.
One solar technology patent awarded by the USPTO protects a photovoltaic energy collection kit that a homeowner could purchase and set up at a residence to provide solar energy generation for that building.
Normally when we discuss the impact of the Bayh-Dole Act, allowing universities and small companies to commercialize inventions made with federal support, we focus on the life sciences where the resulting new drugs and therapies dramatically improved lives for millions around the world. However, the celebration of Earth Day is an appropriate time to consider the contributions our publicly funded research organizations– partnering with an entrepreneurial private sector– make in protecting our environment.
A key purpose of the Bayh-Dole legislation is unleashing federally funded basic research so that it could be commercialized, thus benefitting society. As industry retreats more and more from conducting early stage research (where breakthrough discoveries are made) this alliance is essential to our nation.
One of the drivers behind the bipartisan support of the Bayh-Dole Act was that 28,000 taxpayer funded inventions were sitting idly on the shelves in Washington, D.C. benefitting no one. Under pre Bayh-Dole policies the government took federally funded inventions away from their creators destroying the intended incentives of the patent system. Thus, the full impact of billions of dollars spent annually on taxpayer supported R&D was squandered.
The history of Earth Day traces back to 1970 when then United States Senator Gaylord Nelson (D-WI) came up with the idea. He had long sought a way to inspire people to become more environmentally conscious, and after reading about anti-Vietnam War “teach-ins” on college campuses he was inspired to start a nationwide teach-in on the environment. Senator Nelson wrote letters to all 50 governors and mayors of the larges U.S. cities asking them to issue Earth Day proclamations. He also wrote to college newspapers across the country. His efforts worked and an estimated 20 million people participated in various education activities on April 22, 1970.
In 2009 the United Nations unanimously adopted a resolution designating April 22 each yeas as International Mother Earth Day. The resolution, spearheaded by the Bolivian Government and supported by over 50 Member States, noted that Earth Day was already observed each year on 22 April in many countries. Today Earth Day is celebrated globally in more than 175 countries every year.
This year at IPWatchdog.com we have decided to not just celebrate Earth Day, but rather to celebrate all week. We will have a variety of articles that focus on innovations and technologies that make a cleaner, greener planet a reality. The technological advances we will celebrate come from independent inventors, large multi-national corporations such as General Electric, and exciting basic scientific advances made by U.S. universities and licensed out to small businesses for development.
Collecting the information necessary to prepare a patent application covering a computer related invention can be quite challenging. Typically, most computer related inventions today relate at least in some way to software, which is at the core of the challenge. This software challenge stems from the fact that the software code is not protected by patent law, but rather how the software operates is protected. This means that the description needs to be one that can be replicated by others regardless of how they choose to write code to accomplish the necessary tasks.
A patent does not need to be a blueprint, but it needs to direct. For example, you do not need to provide the code for the scripts, although that is certainly one way to make sure it is described adequately, and perhaps something you may want to consider if you have a working prototype that you want to protect (more on this later).
Generally speaking, the goal is to provide enough description so that someone who is “skilled in the art,” which is a legal term that refers to those who would be expected to possess the knowledge and understanding appropriate to comprehend the invention, can make and use the invention after reading the patent application. In order to satisfy the patent law description requirements the explanation of the software in a patent application must give the programmer enough information to be able to sit down and know how to write the code having only read the description contained in the patent application.
Since my last article here on IPWatchdog.com, the pharmaceutical industry has been simply overflowing with interesting developments, including the US Supreme Court hearing arguments concerning three significant cases.
The first case argued at the Supreme Court will determine whether generic drugmakers can be sued for alleged flaws in the design of their medications. At issue is whether federal law preempts such claims from proceeding in state court and if drugmakers can be held liable if they decline to withdraw their medicines from the marketplace.
Of course, the same concept could be applied to brand-name drugmakers, which is why the entire pharmaceutical industry is on edge. In fact, the Obama administration filed a brief in support of drugmakers over concerns the FDA regulatory review process could be undermine if medicines deemd safe and effective could later by considered ‘unreasonably dangerous.’
The court reviewed an appeal by Mutual Pharmaceutical to overturn a $21 million jury award to a New Hampshire woman who in 2004 had taken a generic painkiller called sulindac, but developed Stevens-Johnson Syndrome and toxic epidermal necrolysis. She’s nearly permnanetly blind and suffered burn-like lesions over most of her body, underwent numerous surgeries, and is now unable to read, drive or work, and must use a feeding tube, her lawsuit says.
Late this afternoon Teresa Rea, the Acting Under Secretary of Commerce for Intellectual Property and Acting Director of the United States Patent and Trademark Office, sent an e-mail to those who work for the USPTO. The e-mail was simply titled: “A Message from Teresa Stanek Rea.” The message was simple, the USPTO is facing “substantial budgetary uncertainty,” which is due to sequestration.
At this point I don’t know exactly the level of financial crisis at the USPTO, but it doesn’t sound good. The USPTO is a fee generating entity that runs largely on the fees it collects and this year projections have been well above realized revenue. With there already being a deficit, looming sequestration cuts could significantly harm USPTO productivity, which will cause harm to the innovation industry in the United States.
This is particularly alarming given the recent substantial raising of patent related fees for most applicants. How can the USPTO charge more and more for less service? The industry has already been uneasy about these substantial increases in fees, but most were willing to swallow hard as long as it meant a better functioning and faster moving patent process. It certainly doesn’t sound like a better functioning, faster moving patent process is on any relevant horizon at the moment. So the industry faces the prospect of paying more while returning to painfully slow processing of applications. A true nightmare scenario.
In addition to the aforementioned e-mail from Acting Director Rea, another e-mail was recently sent to union members from Robert Budens, President of POPA, the examiner’s union. Budens hypothesizes that there is an unofficial “gag order” placed upon USPTO officials by the White House. Budens has a reputation as a straight-shooter who is liked and well respected. For him to make such an assertion there must be some identifiable rationale on which he is relying. I have always understood Budens to have a good working relationship with USPTO management. The mere fact that he can’t get answers could justifiably raise suspicions. Of course, it may be because USPTO officials themselves don’t have any answers and are scrambling to address budget deficiencies, but you would think that could have been conveyed directly.
On Friday, April 12, 2013, I was at American University Washington College of Law for a program titled Patent Subject Matter Eligibility Today: Software, Genomics, and Business Methods. I participated on a panel titled CLS Bank en band: Are Software Methods Patentable? What I want to write about today, however, is not our panel presentation, but rather the Keynote presentation by Suzanne Michel (no relation to Chief Judge Michel), a former deputy director of the FTC who is Senior Patent Counsel at Google, Inc., working in Google’s policy office in Washington, DC.
It is no great surprise probably, but I disagreed with practically everything she said, although I did enjoy her presentation. I love to debate the issues, and she is extremely knowledgeable and well briefed on what is happening in the trenches. Those of us who disagree with the proffered narrative that the patent system is broken can’t ignore competent advocates like Michel. She is not a patent-hater and her message is sharp, crisp and clear, although I do think it is misleading. The patent system is not broken, and for reasons I can only guess the best and brightest leaders in much of the big-tech industry are pursuing paths not calculated to succeed; at least if the goal is to stem the rise of patent litigation and innovate for the future.
With this in mind, what follows is a summary of Michel’s presentation, which if not titled was certainly themed — Fixing Problems of the Patent System to Improve Innovation. I also provide my thoughts and comments in the format of comments from the peanut gallery, or perhaps as a patent law equivalent to Mystery Science Theater 3000. In order to differentiate my thoughts/comments from Michel’s presentation, my comments are italicized, colored, indented and tagged with the IPWatchdog logo.
Yesterday the United States Supreme Court heard oral arguments in Association for Molecular Pathology v. Myriad Genetics, Inc. While the Association for Molecular Pathology (AMP) is the named party in the case, it is really a case brought and forwarded by the American Civil Liberties Union (ACLU).
Myriad Genetics is the patent holder on various innovations relating to isolated DNA comprising an altered BRCA1 DNA and various methods of screening for cancer built upon various observations of the altered BRCA1 DNA. Essentially, AMP and the ACLU, along with researchers, competitors of Myriad Genetics and consumers filed a lawsuit challenging the constitutionality of a number of gene patents owned by Myriad and argued that gene patents should not be granted because patenting a gene is the same as patenting something that exists in nature.
This argument succeeded at the district court, but has twice failed at the Federal Circuit. The Federal Circuit initially reversed the district court, but appeal was made to the Supreme Court by AMP/ACLU. See As Predicted, Federal Circuit Rules Isolated DNA Patentable. In the meantime the Supreme Court issued a decision in Mayo v. Prometheus and remanded this case to the Federal Circuit for further consideration in light of the Court’s decision in Mayo v. Prometheus. The Federal Circuit again sided with Myriad Genetics. See AMP v. USPTO Remand Déjà Vu. Appeal was taken to the Supreme Court, which accepted certiorari. See Supreme Court Grants Cert in Amp v. Myriad. The only issue accepted by the Supreme Court was the broadest issue: are human genes patent eligible?
Samsung Electronics Co., Ltd., is a global electronics development company headquartered in South Korea. The company is well known for its consumer electronics products, as well as its ongoing patent war with Apple. Nonetheless, as the following shows, Samsung is involved with much more than electronic devices and televisions.
Patent applications published recently by the U.S. Patent & Trademark Office show Samsung’s goals of developing stronger systems of software protection and user interfaces for gesture-based gaming systems. Another patent application assigned to Samsung Electronics could protect an important advance in cancer treatments. One of the recent patents awarded to Samsung from the USPTO protects a more efficient system of location tracking designed for parents.
To see our other snapshot looks at some of the top innovators please see Companies We Follow. Without further ado, our snapshot look at Samsung and what they are working on presently.
Location Based Service (LBS) systems are designed to identify a target’s geographic position and present that data to a party requesting that information. Often, these LBS systems are used for parents who want to stay aware of where their children are. However, current systems of requesting information don’t aid communication between parents, as different parties will have to send their own requests to the LBS service to receive location data. Multiple requests can have the further effect of slowing down the LBS servers to process these server demands.
In a recent article on this blog, Gene Quinn reported onThe Rise of Patent Litigation in America in 2010, 2011 and 2012 and propounded the question: “what explains the significant uptick in the number of patent litigations initiated?” Gene appropriately cautions readers from speculative conclusions that the rise in the number of lawsuits is somehow due to rampant patentee abuse of the legal system. He appropriately rules out as a significant factor the fact that there are more patents being issued, as this has been a trend for years. Notably, Gene is on to something as he suggests that “the prohibition against suing numerous defendants in a single case ushered in by the America Invents Act (AIA) is to blame for at least a portion of the increase that occurs after September 16, 2011.” As shown below, it is ironic and highly likely that the AIA – the legislation touted by its proponents as the instrument to reduce the number of costly patent lawsuits – is in fact the major cause for their increase in the last three years.
Several factors created by the AIA caused, and will continue to cause, increased rate of lawsuit filings. Several of these factors were building up even before passage of the AIA in September 2011, as patentees acted prophylactically or in anticipation of more adverse legal conditions at various phases of the AIA implementation. Examples follow:
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more. The treatise is continuously updated to address relevant Federal Circuit and Supreme Court decision impacting patent drafting.
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