Posts Tagged: "Chief Judge Michel"

Yesterday a unanimous Supreme Court ruled that the America Invents Act’s (AIA’s) language barring patent protection for inventions that were “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention” under 35 U.S.C. § 102(a)(1) extends to private sales to third parties. The decision upholds pre-AIA Federal Circuit precedent establishing that a “secret sale” could invalidate a patent. The question patent owners have been asking since 2011 was whether the AIA’s addition of the phrase “or otherwise available to the public” overruled the Federal Circuit’s judicial construction of the on-sale bar. “No,” said the High Court. As always, IPWatchdog reached out to experts across industries for their views on the decision. From “well-reasoned and correct” to “a disappointment” and “dismissive,” they had wide-ranging perspectives on the ruling’s broader implications.

On May 9th I attended the International IP Commercialization Council (IIPCC) USA Chapter second annual program at the United States Capitol.  The topic of the event was Meeting the Threat to America’s Economic Future: US IP & Innovation Policy where representatives from IBM, Qualcomm, Personalized Media Communications, the Cleveland Clinic and the University of Michigan, as well as a Who’s Who of IP Leaders and policymakers, shared their real-world perspectives on the state of the US Patent System, and the effects it has and will have on the economy. 

In SAS Institute, a 5-4 majority ruled that there is no authorization in the statute for the Patent Trial and Appeal Board (PTAB) to partially institute a petition for inter partes review. Thus, the Supreme Court held that when the Patent Office institutes an inter partes review it must decide the patentability of all of the claims the petitioner has challenged. To provide instant reaction to the Supreme Court’s decision in SAS Institute we’ve reached out to an All-Star panel of industry experts for their take on this important decision. Their analysis follows. 

“If companies were to lobby to allow for more polluting most people would think that is unethical,” Lauder explained. But there are people lobbying to make it more difficult for companies to come up with cures that allow for the creation of cures that save lives, which Lauder says he finds “equally unethical.” Lauder hopes that others start to look at the problem in the same way. That would indeed be a big step forward.

As judges, former judges and government officials, legal academics and economists who are experts in antitrust and intellectual property law, we write to express our support for your recent announcement that the Antitrust Division of the Department of Justice will adopt an evidence-based approach in applying antitrust law equally to both innovators who develop and implementers who use technological standards in the innovation industries. We disagree with the letter recently submitted to you on January 24, 2018 by other parties who expressed their misgivings with your announcement of your plan to return to this sound antitrust policy.

The Senate Republican High-Tech Task Force convened in order to hear from patent experts on the impact of the U.S. Supreme Court’s ruling in TC Heartland, the IPR process and patent eligibility, and to discuss what Congress can do in terms of additional patent reform in order to improve the U.S. patent system… The Hatch op-ed would seem to be music to the ears of beleaguered patent owners in the life science and computer implemented innovation areas. The problem, however, is with those the Senate Republican High-Tech Task Force heard from during this private meeting.

In the wake of recent judicial and legislative developments, protecting “what’s yours” has become even more complex. Many businesses and intellectual property lawyers have appropriately favored a strategy focused on obtaining patents when available to protect intellectual assets. However, in recent years there have been unprecedented changes to the American patent system… Developments in patent law have caused owners of intellectual capital to evaluate all available means for its protection including considering when appropriate the protection of innovations as trade secrets.

“I think at the end of the day, patents are either valid or invalid as a legal instrument and therefore it’s not very helpful to talk about quality or ‘good’ or ‘bad,” Judge Michel said. “They’re either valid or not valid and with respect to someone practicing the technology, the patent is either infringed as properly construed or it is not infringed.”

House IP subcommittee chair Rep. Darrell Issa (R-CA) led off the hearing by discussing the large number of interests who are often on Capitol Hill to discuss their issues with “patent trolls,” including the “genius ones” which have only been developed in recent years. Despite the intent of the America Invents Act (AIA) of 2011 to weed bad patents out of the system, “patent trolls” remain active. Issa felt there were a few reasons for this, including the fact that such entities make money and that good patents could still be used to assert unreasonable claims. “Why innovate when it’s far easier and more profitable to simply purchase a patent, acquire one, acquire the rights to a patent, perhaps one that has never been licensed, bully businesses into writing a check, go away without ever seriously litigating,” Issa said. He said that 80 percent of “patent troll” litigation focuses on small business. “Simply put, we should not confuse ‘Making America Great Again’ with ‘Making American Patent Trolls Richer Again,’” Issa said. Although Issa was pleased with the U.S. Supreme Court’s recent decision on patent venue in TC Heartland v. Kraft Foods Group Brands, he recoiled at what he felt was an “overreach” by Judge Rodney Gilstrap from the Eastern District of Texas (E.D. Tex.); Issa felt that Gilstrap misinterpreted the Supreme Court’s decision in TC Heartland by denying a motion to transfer venue from E.D. Tex. in Raytheon v. Cray. “It is, in fact, an act that I find reprehensible by that judge,” Issa said.

Phyllis Schlafly was a giant who well understood the importance of the U.S. patent system, why structural choices were made that lead to a unique patent system compared to the rest of the world, and how vital it was to our national and economic security. In the end, as she knew she would not live forever, she wanted those similarly dedicated to the mission to understand the that work must continue, which was a recurring theme of the celebration and remembrance of Schlafly last night.

Phyllis Schlafly was a true friend of and advocate for the American inventor. Mrs. Schlafly’s life-long admiration of inventors was deeply felt and well-founded. Her biographer reports Mrs. Schlafly regarded an inventor to be “the most glorious product of the free-enterprise system.” She had firsthand exposure to an inventor: her father, Bruce Stewart.

Today, Judge Newman is the Federal Circuit’s most prolific dissenter, and her dissents are important. Former Chief Judge Paul Michel noted that “Judge Newman may hold the record for the most dissents. But her dissents have great force and often persuade other colleagues over time.” Judge Kimberly Moore concurred, saying “[w]hat people may not realize is that many of her dissents have later gone on to become the law—either the en banc law from our court or spoken on high from the Supremes.” She noted that “Merck v. Integra comes to mind. It’s a case where she wrote a very strong dissent. The Supreme Court took it and not only changed the state of the law to reflect what she had written, but they cited her outright in the opinion.”

“The results from the Patent Trial and Appeal Board reflect the procedures it applies, and in my judgment the procedures are wildly off base,” Judge Michel explained… “We’ve had PTAB final results… whatever the intentions were we don’t have to speculate… we have ample evidence of how it worked in practice. We know it doesn’t work satisfactorily.” *** “I don’t think things are really getting much better,” Kappos said. “We are in what I refer to as the leaky life raft.” When you are stranded and a leaky life raft comes along it looks great, but it doesn’t change the fact that it is still a leaky life raft. “The best you can say about 101 is that it has stabilized in a terrible space.”

Fixing America’s patent system is necessary for meaningful economic growth for America’s workers and America’s global competiveness over countries like China. Not surprisingly, Judge Michel thinks that “[w]hile we’ve been weakening our patent system in many ways in recent years, China and other countries have been greatly upgrading their patent systems . . . investment is shrinking here and it’s growing elsewhere.” Judge Michel kept returning to the theme that the lack of new jobs “is the biggest single problem in America today,” and that “whether you talk about job creation or growth or revival of distressed cities . . . the innovation ecosystem is at the heart of the solution.”