Posts Tagged: "Patent Act"

The § 101 rejection rate for patent applications in the e-commerce work groups approaches 100%, then drops precipitously for the remaining seven of the top ten work groups with the greatest percentage of § 101 rejections. Before Bilski, the § 101 rejection rate in the e-commerce work groups hovered around around the 30% mark, but has now tripled. The remaining work groups have also seen their § 101 rejection rates rise by 200-300%, although they make up a significantly smaller proportion of total rejections than in the e-commerce art units. While it did not surprise us that these work groups were at the very top of the list for § 101 rejections, we also wanted to know what other technologies are particularly prone to § 101 rejections.

For patent holders in design patent infringement cases, having multiple component design patents for any given product will help maximize the potential damage award. A multiple design patent strategy is now more important than ever. Given the ease with which design patents are obtained and the relative inexpensive cost associated with obtaining a design patent (at least when compared to the cost of obtaining a utility patent) innovators who must rely on design patent protection will almost certainly need to more strategically acquire design patents as part of a truly robust design patent portfolio building strategy.

For a many years, the pied pipers of the anti-patent lobby whistled the patent troll melody and Congress, desperately in need of a glorious bipartisan victory, pushed and ultimately passed inventor killing legislation… For whatever reason, 2016 represented the year that Congress itself, or at least enough Members of Congress, got serious about considering the negative effects of pandering to the anti-patent lobby. Those effects are now clear and the stage is set to turn it back. Of course, we can anticipate there will be new pushes for patent reform in 2017 and beyond. Perhaps some of those attempts at patent reform will be from the pro-patent side, but we need to remain vigilant because the anti-patent lobby has not and will not go away.

It is the personal relationships and dynamics between those junior and senior examiners where the final, hidden gate to patentability stands. Between them, the junior examiners perform the heavy lifting of searching the prior art and preparing the official actions, and the more senior examiners carry the burden of signing those official actions and allowing applications to grant… To be effective, patent practitioners can do more than narrowly obsess over a single novel and non-obvious element in the claims… Patent practitioners can provide junior examiners with an “elevator pitch” for allowability. They can arm junior examiners with technically clear and concise arguments that are fast to recount and express.

The waters surrounding Section 101 of the Patent Act are as muddied as they come. The statute sets forth only in broad strokes what inventions are patentable, leaving it to the courts to create an implied exception to patentability for laws of nature, natural phenomena, and abstract ideas. It has been difficult for lower courts to determine whether an invention falls within one of these excluded categories, and the U.S. Supreme Court has refused to provide a definition of what constitutes an “abstract idea.” Nonetheless, the Court in recent years has laid several foundation stones in Bilski, Mayo, Myriad and Alice for a bridge over these troubled waters. Trying to build upon these, the Federal Circuit issued two recent opinions dealing with Section 101: Enfish, LLC v. Microsoft Corporation and In re: TLI Communications LLC Patent Litigation. However, these decisions only create more confusion and cannot provide a safe means of passage over the turbulent waters of patent eligibility.

It is pure nonsense to say that opponents of patent reform never offer specifics, cite or discuss textual language of the bills. Utter fiction and complete fantasy. Frankly, Lee’s claims are as comical and insulting as they seem to be uninformed. Only the most disingenuous partisan could suggest that opponents of patent reform do not offer specific explanations citing to textual language of the bills. Indeed, quite the opposite is true. Opponents of patent reform make far more detailed and nuanced arguments. These intellectual, detailed, nuanced arguments have lead those fighting patent reform to lose the linguistic battle time and time again. So not only is what Lee saying false, but it is 180 degrees opposite from reality. So spurious are Lee’s claims that at first glance the article comes across as a piece of patent satire published by The Onion.

On November 5, 2015, patent owner Retirement Capital Access Management Company LLC filed the most important cert petition this term. This bold effort squarely presents a question circling around academic circles for years: whether the USPTO has the authority to address section 101 (subject matter eligibility) within Covered Business Method (CBM) reviews. To the untrained eye, this issue might sound wonky, jargony, technical and narrow. It is instead profound. If granted, the petition might help restore much needed certainty to the innovation ecosystem.

Yesterday I moderated a Google Hangout on the topic of patent reform, which was sponsored by the Innovation Alliance’s save the inventor campaign. Joining me for the conversation was United States Senator Chris Coons (D-DE), a member of the Senate Judiciary Committee and the driving force behind the STRONG Patents Act, and Congressman Thomas Massie, an inventor and patent owner who is a member of the House Science, Space and Technology Committee. Our wide ranging conversation addressed whether patents promote or inhibit innovation, the most problematic provisions in the pending patent reform bills, whether patent reform is even necessary, and the inevitable reality that a push for patent reform will remain on the agenda for the foreseeable future.

On Wednesday, October 7, 2015, I will have the honor of interviewing Senator Chris Coons (D-DE) and Congressman Thomas Massie (R-KY) in a live, bipartisan online Google Hangout. Our conversation will discuss pending patent legislation, specifically addressing concerns with the PATENT Act (S. 1137) and the Innovation Act (H.R. 9), which are currently pending in Congress.

Innovation is the lifeblood of a prosperous economy. Sound patent policy, which encourages the nexus between risk and ideas (especially for small entrepreneurs), makes invention profitable. The U.S. patent system enables that dream by protecting the market an invention creates long enough for the inventor to gain a toehold against competition, and by creating a property right capable of attracting critical investment to bring the invention to market and grow the business. Don’t let H.R. 9 or S.1137 kill this can do American spirit of innovation.

Leading organizations of the Conservative Movement have stepped up their game informing Congress on the philosophical reasons for opposing the Innovation Act and its Senate companion, the PATENT Act. This increased patent bill opposition is directed at Republican lawmakers, the political majority party in both houses of Congress. With House leadership deciding to postpone H.R. 9’s floor debate until at least September, the expanded conservative opposition seems to be effective.

Most Congressional offices now understand how loser-pay, bonding and joinder stops the flow of capital to innovation startups, how customer stays make defending patent rights impossibly difficult, why eliminating PRG estoppel perpetuates litigation shifting almost all of the costs onto inventors, and how IPR’s and CBM’s unjustly strip property rights and devalue all patents. Rank and file offices seem to be listening. However, key offices are deliberately deaf.

Senator Chuck Grassley (R-IA) added language to the fee-shifting provisions in the PATENT Act that would offer an economic hardship exception to fee shifting for “an institution of higher education.” The reason that Iowa State and the University of Iowa find themselves on the outside looking in is because of the way they have structured their patent ownership and licensing efforts. As is rather common, Iowa State and the University of Iowa place ownership of patents outside the institution and in the hands of a Research Foundation, which is a separate entity altogether.

Today, our patent system is faltering. For the first time in our history, inventors and their counsel are considered villains for defending hard-earned patent rights. Companies that steal patents from inventors are called our innovators. The innovation world has turned up-side-down. A few misguided decisions by the courts and the “so-called” America Invents Act of 2011 has made it a CEO’s fiduciary responsibility to steal patented inventions and massively commercialize them with no concern for patent rights.

The reach of the veil piercing is also unprecedented. The proposal implies that an inventor who assigns to other companies that make no products and stand to make a royalty is an interested party. Think about that – we are no longer considering charging just investors or shell company owners with attorneys’ fees. Instead, the proposal would pierce the veil all the way down to the inventor that assigned the patent to his or her employer. If this broad a reading seems unreasonable, consider the recent manager’s amendment, which clarifies to exclude lenders, because the language is so broad it might have included lenders before.