Posts Tagged: "patent"

You cannot get a patent for an invention if it would have been obvious to a person of ordinary skill in the art at the time. This is as true today as it was at the founding of our nation. The reason for this rule is clear—the obviousness-bar is necessary to balance rewarding innovation with free and fair competition. The Supreme Court has observed, alluding to the Constitution’s authorization for federal patents, “[w]ere it otherwise, patents might stifle, rather than promote, the progress of useful arts.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 427 (2007). While we all agree that obvious inventions should not be patented, the devil is in the details on how to draw that line between the obvious and the nonobvious.

On Tuesday, March 2, a jury verdict  entered into the Western District of Texas awarded $2.175 billion in damages to VLSI Technologies for patent infringement committed by multinational tech firm Intel. The verdict, which includes one of the largest damages amounts ever awarded for patent infringement in a U.S. district court, comes less than two years after VLSI began the lawsuit and arguably marks an important milestone in the effort to address corporate business models employing “efficient infringement” techniques to earn dominant market positions, not as innovators, but as tech implementers.

Once upon a time, one of the ways you could spot scams from legitimate operators in the patent industry was to look at who was directing clients to get design patents. Design patents have always been easy to obtain, indeed, far easier to obtain than a utility patent. Of course, as with many things in life and with virtually everything in the realm of intellectual property law, the easier something is to obtain the less valuable it is to own. This general rule about easier and cheaper rights has been turned upside down in recent years with respect to design patents, at least to some extent. Unfortunately, not nearly enough individuals and companies are seeking design patent protection. In 2019, for example, there were 46,847 design patent applications filed, which represents 7.01% of the total number of patent applications filed in 2019. So, although design patents are being filed in larger numbers year after year (See Figure 1), as a percentage of the overall number of patent applications filed, they are largely staying within the 50-year historical norm (See Figure 2). Data taken from U.S. Patent Activity.

A light week at the Patent Trial and Appeal Board (PTAB) saw two post grant reviews (PGRs) and 16 inter partes reviews (IPRs) filed, while the District Court clocked in with 49 new complaints, fueled mostly by additions to a few Rothschild campaigns, a few new IV selloff suits, a new defendant added to the WSOU madness (this time, Netgear), and a fair number of competitor suits, pharmaceutical suits, and even a new Gil Hyatt complaint. Oso IP subsidiary Boccone, LLC walked away from their three patents entirely, post-institution. Samsung and a few others had petitions denied under Section 314 discretion (the power of which was really driven home this week when VLSI earned a $2 billion judgment on patents that had been challenged but denied institution under that rubric).

The European Patent Office (EPO) recently published its Guidelines for Examination 2021, which came into force on March 1.

The trend towards an accurate and detailed explanation of substantive and formal requirements is maintained, keeping up to speed with the recent case law. The changes are limited but helpful, and this witnesses the effort by the EPO in past years to arrive at a stable text of the Guidelines, particularly concerning the software and biotech patentability sections.

Determining where to seek patent rights is an important and expensive decision. If you know you are going to want international patent protection, the best, most cost-effective course is to file directly in those countries. This direct filing strategy does not utilize the Patent Cooperation Treaty (PCT), but instead leverages direct filings in countries of interest. For well established companies in mature markets, this can be an effective strategy. For immature markets, new companies, or even mature companies entering immature markets, it is difficult to know where patent protection will be necessary, which makes an international patent application filed pursuant to the PCT a highly effective strategy.

Yesterday, the Supreme Court heard oral arguments in the most closely-watched patent case of the term, United States / Smith & Nephew v. Arthrex. IPWatchdog reached out to some of the amici in the case, as well as patent practitioners and other stakeholders, to get their take on how the hearing went and what the future holds for the Administrative Patent Judges (APJs) of the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). Most agreed that it’s unlikely the Court will dismantle the PTAB altogether, but that they were clearly uncomfortable with the present structure. Below, our experts weigh in on some potential outcomes.

The Justices of the U.S. Supreme Court today heard arguments in United States/ Smith & Nephew v. Arthrex, in which the Court will decide whether the administrative patent judges (APJs) of the Patent Trial and Appeal Board (PTAB) are “principal” or “inferior” officers of the United States, and—if they are principal officers—whether the Federal Circuit’s 2019 fix was sufficient to cure any Appointments Clause defect. The Court generally seemed extremely skeptical of the “unusual” powers APJs seem to have compared with other administrative agencies and pushed both sides to offer reasonable solutions.

On Monday,, March 2, an Amici Curiae Brief in Support of the Petition by American Axle was filed by Senator Thom Tillis, Honorable Paul Michel and Honorable David Kappos. The three amici conclude that they are “all convinced that section 101 is gravely damaging our country’s ability to succeed in the race for global innovation leadership, and all convinced that the solution to the dilemma lies with the Court taking up the American Axle case.”

Minerva Surgical, Inc. petitioned the Supreme Court of the United States (SCOTUS) in September 2020 to consider the question “whether a defendant in a patent infringement action who assigned the patent, or is [next in line] with an assignor of the patent, may have a defense of invalidity heard on the merits.” The petition was granted in January and additional amici have recently weighed in, including the New York Intellectual Property Law Association (NYIPLA).

A close examination of SEP databases reveals that a large number of patents that have been declared SEPs are not essential…. Patent owners are obliged to declare the patent as essential even if they are doubtful about its essentiality. Unfortunately, a few patent owners may intentionally proclaim many of their patents to be essential to gain benefits or a business advantage. In practice, there are multiple reasons potentially essential patents and patent applications might be rendered non-essential. For example, a patent could be granted with amendments that cause it to be no longer essential. Whenever implementers bargain for the licensing fees, they must examine whether certain patents are actually essential, which can stall negotiations and lead to litigation.

Sarah Boone is believed to be the fifth African-American woman to be awarded a U.S. patent Her invention, U.S. Patent No. 473,653, issued in 1892 and was directed to an improved ironing board. The object of her invention was “to produce a cheap, simple, convenient, and highly effective device, particularly adapted to be used in ironing the sleeves and bodies of ladies’ garments.”

As is customary, President Joseph R. Biden has spent much of his first month in office building out his administration’s Cabinet. His nominations for Secretary of State, Treasury and Defense have already been confirmed by the U.S. Senate. Now, short lists are being assembled for who may fill his non-Cabinet-level positions. Much time and focus has been duly spent on Cabinet-level positions, but there are other government agencies that have a major impact on the U.S. economy. There have been a lot of rumors surrounding Biden’s pick to head the United States Patent and Trademark Office (USPTO), and for good reason. Today, as America continues to recover from COVID-19 and its consequences, this position may be more important than ever before.

A common refrain is that an invention is only as valuable as the patent that protects it. But what happens when you cannot secure the patent? This is a frequent hurdle for inventors seeking to patent products utilizing artificial intelligence (AI). While still in its infancy, at least compared to the lofty expectations of technology enthusiasts, AI has proven integral to driving innovation, but it has also proven equally vexing to fit into the intellectual property legal regime.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Monday held that the Patent Trial and Appeal Board (PTAB) incorrectly found certain claims of SynQor, Inc.’s U.S. Patent No. 7,072,190 unpatentable as obvious in an inter partes reexamination proceeding. The CAFC said that the PTAB’s previous reexamination decisions on related patents gave rise to common law issue preclusion that collaterally estopped the Board from such a finding. Judge Hughes authored the majority opinion and Judge Dyk dissented, calling the ruling “without support and contrary to governing Supreme Court authority.”