Posts Tagged: "aia"

Essentially, §102 requires the patent applicant to demonstrate that the invention is new. In essence, in order for a claimed invention to violate this “newness” requirement it must be exactly identical to the prior art… In order to understand the requirements of §102 it will be helpful to explore the concept of anticipation in detail. A claim is said to be “anticipated” if comparison of the claimed invention with a prior art reference reveals that each and every element in the claim under attack is shown or described, organized, and functioning in substantially the same manner as in the prior art reference.

The district court determined that it lacked subject matter jurisdiction because Preston’s state-law claims did not arise under federal law and Nagel’s patent counterclaims did not present a justiciable case or controversy under Article III because the patent dispute was not imminent. Therefore, the district court remanded the case and Nagel timely appealed… The AIA and its strengthening of federal court jurisdiction over patent claims did nothing to override the rule that a district court decision to remand a case to state court is not appealable under §1447(d).

The nation’s highest court will once again address issues surrounding the controversial Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO). The case it will decide is SAS Institute, Inc. v. Lee, which will be argued during the October 2017 term, and which will force the Court to again look at how the USPTO, and more specifically the PTAB, is implementing the post-grant patent validity trials created when Congressional passed of the America Invents Act (AIA) of 2011… As SAS Institute’s petition notes, the track record of the PTAB is clear. The PTAB believes that final written decisions need only to address certain challenged claims, not every challenged claim.

In Helsinn Healthcare S.A. v. Teva Pharms. USA, Inc., the Federal Circuit reversed the district court and held that Helsinn’s pre-AIA patent claims, “were subject to an invalidating contract for sale prior to the critical date,” and furthermore, “the AIA did not change the statutory meaning of ‘on sale’ in the circumstances involved here.” The asserted claims of the post-AIA patent were also ready for patenting prior to the critical date… The on-sale bar, before and after the AIA, does not require a finding that the offer or sale disclosed the details or claimed features of the invention, so long as the product embodies those features when sold. An invention is reduced to practice, and ready for patenting, when it is reasonably shown to work for its intended purpose, which for a pharmaceutical product is not contingent upon FDA approval.

The relationship between PTAB proceedings and parallel district court litigation may be altered significantly. The arguments in Wi-Fi One vs. Broadcom this week may change a lot about PTAB. In fact, the U.S. Court of Appeals for the Federal Circuit has announced that it will hear the question of whether certain decisions of the PTAB that are entered at the beginning of America Invents Act (AIA) trials.

Earlier today the United States Court of Appeals for the Federal Circuit issued a major decision interpreting provisions of the America Invents Act (AIA), specifically the AIA on-sale bar provisions. In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the Federal Circuit panel of Judges Dyk, Mayer and O’Malley determined: “after the AIA, if the existence of the sale is…

As Senior Counsel of the House Judiciary Committee, Vishal Amin was a primary architect of the Patent Trial and Appeal Board (PTAB), the administrative tribunal that has destroyed thousands of patents, destabilized the U.S. patent system, and sent venture capital and countless technology startups fleeing to China… He must explain his reasoning for the most damaging legislation to American innovation in U.S. history. These questions must be asked of Vishal Amin in his confirmation hearings. Unless he can reasonably and satisfactorily explain his position on these issues, it must be assumed he is not qualified for the position of White House Intellectual Property Enforcement Coordinator.

The CBM determination includes patents that are “financial in nature” according to the claims; not patents that are “complementary” or “incidental” to financial activity according to the specification or post-grant assertion of the patent… Further, the Board’s reliance on post-grant activity, that Secure Axcess alleged infringement against financial institutions, was improper. “Those choices do not necessarily define a patent as a CBM patent, nor even necessarily illuminate an understanding of the invention as claimed.”

Wi-Fi One stands among the latest—and potentially the most important—in a series of cases that have called into question both the degree to which Congress intended to restrict the authority of federal courts to review certain decisions made by the Patent Trial and Appeal Board (PTAB) and the limits on Congress’s power to actually do so. While it remains to be seen how the en banc Federal Circuit will ultimately rule, the answer to its question will inevitably have a broad and deep impact on future inter partes review and other post-grant proceedings, Patent Office procedures, and beyond.

The House Judiciary Committee will set the agenda for any intellectual property legislative reforms that will arise over the next two years during the 115th Congress, and the Subcommittee on Courts, Intellectual Property, and the Internet will take the lead for the full House Judiciary Committee. Congressman Bob Goodlatte (R-VA) is once again Chair of the House Judiciary Committee, and in that role will continue to have tremendous influence on any intellectual property related matters… At the start of the 114th Congress, Congressman Darrell Issa was made Chair of the Subcommittee on Courts, Intellectual Property, and the Internet. Despite being an inventor himself, the bombastic Issa has aligned himself with Google and other Silicon Valley elites. Issa is not viewed as a friend of independent inventors, and instead lambasts patents trolls as often as he can. While no one likes a patent troll, Issa has taken the unusual step to equate patent trolls with all patent owners who enforce their patents.

Congress sent H.R. 5, the House-passed Regulatory Accountability Separation of Powers Restoration Act, to the Senate’s Homeland Security & Governmental Affairs Committee on January 12, 2017. When enacted it will overrule Chevron deference. This enactment will therefore shine the disinfecting sunlight of appellate review where it has not gone before…. Patent practitioners need to realize that the Act will eliminate stare decisis over earlier court approvals of specific Patent Office rules. First, after the Act, it will be an open question whether the Patent Office may use BRI within IPR proceedings. That is because the law will have changed over what deference a court must give Patent Office regulations. In Cuozzo, the Court cited Chevron in analyzing whether rulemaking imposing BRI on IPR proceedings constituted “a reasonable exercise of the rulemaking authority that Congress delegated to the Patent Office.” Cuozzo, 136 S. Ct. at 2144. After walking through a collection of policy rationales that made BRI seem “reasonable” to the majority, the Court concluded by explicitly noting that the “Patent Office’s regulation, selecting the broadest reasonable construction standard, is reasonable in light of the rationales described above. . . .” Id. at 2146.

The American patent system represents a delicate balance. On the one hand, the patent system provides an incentive to invest in risky technical problem solving by giving an inventor an “exclusive right” for a limited time. On the other hand, from the time of the first Patent Act in 1790, patent critics have argued that patents block competition with a temporary monopoly. This tension has, nevertheless, enabled the rise of the U.S. as a major industrial economy, particularly after the Civil War. Optimally, the patent system encourages inventors to take risks to invent and disclose new and useful things by investing in ex ante costs before a later payoff. After a limited time of exclusivity rights, a patented invention falls into the public sphere, thereby providing a public interest in the long run. Economic and technological progress proceeds by building on previous inventions. Until about 2006, the U.S. patent system worked well, as evident in the development of the largest and strongest economy in the world.

One thing you learn early on in the Conservative Movement is the maxim, Personnel Is Policy. For a new administration pledged to turn the ship of state to effect the goal of America’s economic and industrial restoration, the same turn must be made regarding intellectual property. And it’s hard to imagine that the Obama picks to lead the Patent and Trademark Office or the Copyright Office could be part of the solution in IP policy, if America is to be made great again.

First to File was just the beginning of the damage caused by the America Invents Act. When the concept of the Patent Trial and Appeal Board (PTAB) is fully understood even more quit. Their American Dream goes up in smoke because bad legislation tilted the patent system in favor of large multinational corporations.

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.