Posts Tagged: "patents"

In Hamilton Beach Brands v. F’Real Foods, the Federal Circuit found that under the Administrative Procedure Act, the Patent Trial and Appeal Board’s adopted claim construction in an IPR need not be identical to a construction proposed by a party so long as the construction is “similar enough” to provide notice for the parties to argue for or against the construction.

The Federal Circuit panel of Circuit Judges Timothy Dyk, Evan Wallach and Richard Taranto determined that the PTAB’s decision to uphold patent claims challenged by WhatsApp as nonobvious wasn’t supported by substantial evidence and that the PTAB didn’t properly consider expert testimony provided by WhatsApp… Here the prior art references that supplied all of the claim limitations and the Federal Circuit found that testimony from expert witnesses on both sides supported the idea that video and multimedia content was better at conveying more powerful messages than text or still photos.

Artificial intelligence technologies are transforming industries and improving human productivity and health. Unfortunately, the stark reality appears to be that artificial intelligence technologies are likely to be more heavily scrutinized under 35 U.S.C. § 101 and less likely to be allowed… The Court in Electric Power Group made note that: “we have treated analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category”.  The authors propose that this sentence of the decision is of utmost importance in the context of patenting A.I. technology.

Despite potentially relevant Supreme Court precedent in Thomas and Granfinanciera, the better view under the weight of Supreme Court precedent with respect to patent validity, absent the recent decision by the Court in Oil States, is that determination of the validity of issued patents does not include the government as a party and, therefore, only private rights are involved.  Jurisdiction should, therefore, be solely within Article III, and preclude final determinations of patent validity as they currently exist under the AIA, as well as other post-issuance adjudication, such as interference proceedings and ex parte reexamination.  Statutory provisions for post-grant examination at the Patent Office should be limited to an advisory capacity as an adjunct to a federal district court and address only issues of fact.  Such factual determinations coming from the Patent Office should be subject to review for substantial evidence by a district court in order to pass constitutional muster under Article III. However, given that issued patents are deemed to be “public rights” and that IPRs have been upheld as constitutionally valid under Oil States, there may be no limit to the power Congress can grant to the Patent Office over the validity of patents, potentially usurping any role for the judiciary in this regard under Article III.

Looking first at patent litigation, approximately 20,000 companies have been sued for patent infringement in the U.S. since 2010; even your neighborhood restaurant is at risk. A particular global fast food chain is sued, on average, at least once a year for patent infringement. Those suits aren’t over hamburger recipes or kids’ meal toys: They’re over its mobile apps, point-of-sale technologies and other software that have nothing to do with food. Even financial and management consulting firms find themselves in the middle of trade secret, patent and copyright disputes over issues ranging from talent acquisition to website display carousels to website functionality to software the firms themselves developed.

Effective December 1, 2018, electronic retrieval of priority documents between the United States Patent and Trademark Office (USPTO) and the Korean Intellectual Property Office (KIPO) will be managed via the World Intellectual Property Organization (WIPO) Digital Access Service (DAS), in accordance with the WIPO DAS agreement established on April 20, 2009. The certified copy requirement is considered satisfied when a foreign priority document is retrieved electronically via the WIPO DAS service during pendency of the U.S. application. There is no fee for this service and participation for a particular application is voluntary.

Darrow became the first millionaire game inventor, thanks to royalty payments. The irony, however, is that Darrow may not have invented the game at all, but rather he may have taken a locally popular game and made only a few changes. By the time Parker Brothers realized that Darrow may not have been the true inventor the game was already a huge success. In order to protect the game and its investment the decision was made to buy up all patents and copyrights on any related game, thereby ensuring the monopoly on Monopoly®. Thus, the story of Monopoly® provides inspiration to inventors who at first are told no, and for companies who acquire intellectual property rights.

A jury in the United Stated Federal District Court for the District of Delaware recently delivered a verdict awarding nearly $24 million dollars in reasonable royalty damages to plaintiffs Bio-Rad Laboratories and the University of Chicago. Along with finding that defendant 10x Genomics had infringed upon patents covering genetic analysis technologies, the jury also found that 10x Genomics’ infringement was willful and found it “highly unprobable” (i.e., the words of the jury verdict form) that the asserted patent claims were valid.

Despite the April 2011 priority date asserted for the ‘031 design patent, the PTAB found in its institution decision that the ‘031 patent wasn’t entitled to the priority date for the patent application resulting in the ‘838 patent because of a lack of written description support for the design claimed in the ‘031 patent… C&D Zodiac had provided evidence from a slide-show presentation shown at a B/E Aerospace Investor Day event in March 2012 which included slides (see left) depicting the Spacewall technology covered by the ‘031 patent as well as commercial success including an $800 million contract with Boeing signed in 2011.

When you are moving from idea to invention to patent, regardless of how or why you find yourself stuck in the idea phase, the first order of business to get the ball rolling. You need momentum. In order to get that ball rolling what you need is a strategy to help you move past the idea and learn to describe your idea with enough specifics so that it no longer is what the law would call a merely an idea.  In a nutshell, if you can describe your idea with enough detail you don’t have an idea, what you have is an invention, or at least the makings of an invention. Here are 7 concrete steps you can take to help you get from your idea, to an invention worth patenting.

It is that time of year where we annually pause as a nation, taking time out of our busy lives to visit family, watch football, eat too much turkey and other holiday foods, and read about patents that related to turkeys in one way, shape or form.  Well, most of the nation won’t be engaging in the later, but obviously you are here, it is a holiday and you are reading IPWatchdog.com. Predicting you were going to spend a portion of the day reading about patents that in some way relate to turkeys was really a lay-up in the world of predictions and prognostications!

From 2011 to 2017, patent applications at the EPO for automated driving increased by 330%, compared to 16% across all technologies in the same period, according to the study, titled “Patents and self-driving vehicles”. And in the past ten years, the EPO received some 18 000 patent applications related to self-driving vehicles, with nearly 4,000 in 2017 alone. The study also shows that half of the top 25 companies active in this field at the EPO, including the top four applicants, are not traditional automotive/transport companies, but information, communication and technology (ICT) firms.

These headlines are further proof that China, long known as and still considered to be a major international contributor to IP theft and piracy issues, has taken steps to rectify these issues in the months since President Xi Jinping publicly stated that “IP infringers will pay a heavy price” last July. A look at China’s economy profile in the U.S. Chamber of Commerce’s 2018 IP Index shows that some of these recent copyright actions directly address certain weaknesses in China’s IP regime. The country received no score whatsoever for the provision of expeditious injunctive-style relief and disabling of copyright infringing content online. While it’s not clear how expeditious the NCA’s video takedown action was, it at least provided injunctive-style relief on behalf of copyright issues. The same holds true for the CAVCA’s karaoke takedown efforts. It’s also possible that at least the NCA’s actions could improve China’s score in another criteria where it ranked poorly, namely the availability of legal measures providing necessary exclusive rights to prevent copyrights on web hosting and streaming platforms.

This particular Rule 36 patent eligibility loss for the patent owner came in Digital Media Technologies, Inc. v. Netflix, Inc., et al., affirmed the district court’s finding that patent claims asserted by Digital Media against Netflix, Amazon and Hulu were invalid under 35 U.S.C. § 101 because they were directed to an abstract idea… Using Rule 36 in an area of the law as unstable, chaotic and unpredictable as patent eligibility is irresponsible. Whether the decision would be the same or not, the parties and the public have a right to have the Federal Circuit make sense ‘this § 101 conundrum.’

On Friday, November 9th, the Court of Appeals for the Federal Circuit issued a nonprecedential decision in NuVasive, Inc. v. Iancu, which vacated certain findings of the Patent Trial and Appeal Board (PTAB) in an inter partes reexamination proceeding involving a NuVasive patent covering a system and methods for minimally invasive surgical procedures. The Federal Circuit panel of Circuit Judges Pauline Newman, Raymond Chen and Todd Hughes determined that on the issue of secondary considerations the PTAB erred in finding no nexus between NuVasive’s claimed method and the surgical procedure actually commercialized by NuVasive. The panel also held that further fact-finding was required in order to determine whether an asserted prior art publication teaches a certain nerve-monitoring technique necessary to support the Board’s determination of obviousness. Therefore, the decision of the PTAB was vacated and the case remanded for further proceedings consistent with the Court’s opinion.