Posts in Inventors Information

Some Overlooked Holiday Treats in the STRONGER Patents Act

It’s that time of the year—Halloween candy is still lingering in bowls, turkey and dressing is tantalizingly close, holiday cheer abounds. While winter skies are overhead, Congress is working to strengthen the U.S. Patent system with the STRONGER Patents Act. The bill was most recently debated by the Senate Judiciary Committee’s IP Subcommittee in September and has stolen the spotlight from the Section 101 reform debate, which for the moment seems to have stalled. Much has been written about the main provisions of the STRONGER Act, such as making inter partes review (IPR) and district court standards and procedures the same. Like extra Halloween candy or Aunt Imelda’s sweet potato pone, Congress has included a number of extra goodies for patent owners that have not been widely appreciated.

Other Barks & Bites, Friday, November 8: SCOTUS Hears Allen v. Cooper Copyright Case, U.S. Government Sues Gilead, Amici Submit Briefs to CAFC in Chrimar

This week in Other Barks & Bites: the Trump Administration sues Gilead for infringement over HIVE PrEP treatment patents; Senators Inhofe and Wicker ask President Trump to show no leniency on Chinese IP theft; the Supreme Court hears the Allen v. Cooper copyright appeal; the Federal Circuit issues precedential opinions on PTAB evidence admissibility and limitation in patent claim preamble; the Copyright Office says that its digital recordation pilot project is on track for Spring 2020; the PTAB Precedential Opinion Panel (POP) will review the Board’s rejection of substitute patent claims in a motion to amend; “This Is Spinal Tap” creators settle copyright suit; and T-Mobile announces December launch for nationwide 5G network.

The Absurdity Continues: Blackbird Cast as Latest Patent Troll

Two days ago, TechCrunch published an article touting an important victory by Cloudflare against an evil patent troll—Blackbird Technologies. In the article there is no mention of any inappropriate tactics used by Blackbird, and there is nothing to suggest that Cloudflare was not infringing the patents they were accused to have infringed. In fact, that article seems to practically admit that Cloudflare was infringing on the patents because the defense tactic used by Cloudflare was not to argue that they were not infringing, but instead to argue that the patent claims asserted were invalid. Indeed, on November 4, Cloudflare published a description of their strategy, which does not mention anything about demonstrating that they were not infringing the patents issued by the United States Patent and Trademark Office (USPTO). Instead, the strategy was to: (1) not settle; (2) make a public cry for help and seek the submission of prior art that might invalidate the patent claims they were facing; and (3) file ethics complaints against the attorneys representing Blackbird. In this case, the Blackbird patent claims were found invalid. Cheering for Cloudflare, who had no reason to know that at the time they recklessly infringed those claims, is beyond the pale and speaks volumes as to why innovators are leaving America and heading to Europe, China and elsewhere around the world.

The Search for the ‘Inventive Concept’ and Other Snipe Hunts

Everybody in the patent world is talking about the latest atrocity from the Federal Circuit known as the American Axle decision, but few actually appreciate the true level of absurdity. Yes, 35 U.S.C. § 101 swallowed §§ 112(a), 112(f), 102, and 103 in a single decision (a new feat of judicial acrobatics), and Judges Taranto and Dyk displayed their technical ignorance. For example, in citing the Flook decision Judges Dyk and Taranto assert that Flook’s mathematical formula (known to a million-plus engineers as the steepest-descent algorithm) is a “natural law.” American Axle, slip op. at p. 19. Seriously? Are Federal Circuit judges so technically ignorant that the entirety of the country is doomed to believe such an idiotic fantasy that a particular adaptive mathematical algorithm associated with no natural law must be a natural law? 

‘It Is a Mess’: Recapping the U.S. Patent System’s Race Toward Uncertainty

What I tried to do for this presentation is figure out in about seven or eight minutes how I could convey to you what’s really going on in the United States. Because, frankly, it is a mess. The patent system in the United States, for those of you who are unfamiliar, is extraordinarily weakened from where it was 12 years ago. Getting an injunction in the United States is simply not possible anymore in litigation, except for in the most extreme situations. Over the last 12 years, the U.S. patent system largely has become a compulsory licensing system, and increasingly so. This obviously has ramifications for all patent owners. And during this time period, Congress also passed the America Invents Act, which created what’s known as the Patent Trial and Appeal Board (PTAB), which has made it more easy to invalidate patents in the United States. As it turns out, 90% of patents that actually get to a final decision at the PTAB are found to have a mistake.

Constitutional Law Scholars Weigh in on Arthrex

The Arthrex decision caused considerable confusion and excitement among the patent bar last week, partly because the issue decided by the Federal Circuit was a constitutional, and not a patent one. While we await next steps from the parties and the USPTO, IPWatchdog spoke to several constitutional law experts to get their take on the significance of the decision and the likelihood that the Supreme Court would be interested in the issue if appealed. All agreed that the Federal Circuit’s reasoning was correct, though one thought the Court’s approach to deciding that administrative patent judges (APJs) are inferior officers was slightly “unusual” in its focus strictly on the issue of “supervision” over other factors that the Supreme Court has found to be relevant to the distinction between inferior and principal officers. IPWatchdog posed three questions to the experts based on some of the issues that have been raised since Arthrex.