Posts Tagged: "Josh Malone"

On Wednesday, May 30th, the Court of Appeals for the Federal Circuit entered a decision in Tinnus Enterprises v. Telebrands Corporation which reversed and remanded an earlier decision by the Patent Trial and Appeal Board (PTAB) to invalidate a patent covering the award-winning Bunch O Balloons toy developed by inventor Josh Malone. The Federal Circuit panel of Circuit Judges Kathleen…

Earlier today the United States Supreme Court issued its decision in Oil States v. Green Energy, finding that inter partes review is constitutional both under Article III and the Seventh Amendment to the United States Constitution. In a 7-2 decision, the Court determined that patents are a government franchise that are subject to review by the Patent Office even after granting, and can be revoked at any time.  In order to get a diverse array of views, we held open comments through early evening for this instant reaction piece.

A few dozen amici briefs have been filed in the case, including one filed on August 30th by 39 patent owners affected by PTAB activities in support of the petitioner Oil States. These patent owners have either already or are currently faced PTAB validity trials challenging their patents through inter partes review (IPR) or other post grant review (PGR) proceedings. The amici argue that the affected patent owners are in a unique position to provide perspective to the Supreme Court on the question of extinguishing patent rights through a non-Article III forum.

Tinnus argues in its appeal that the PTAB panel applied standards for inter partes review (IPR) proceedings to a trial that was instituted as a PGR. “In its institution decision, the Board incorrectly applied the lower ‘reasonable likelihood’ standard used for IPRs, rather than the higher ‘more likely than not’ standard governing PGRs,” Tinnus’ appeal reads, adding that the PTAB panel didn’t recognize this error in its final written decision.

“We began noticing that key appointments in the Trump Administration were going to Republicans who were very anti-patent,” Caputo noted. These appointments include Vishal Amin, who Trump selected to serve as Intellectual Property Enforcement Coordinator (IPEC) within the office of the President. Amin had an important role in drafting the America Invents Act of 2011, especially those provisions regarding the PTAB which was just targeted by US Inventor’s protest. Caputo also raised concerns over the potential patent views of Joseph Matal, who is currently the acting Director of the USPTO. Many inventors believe Matal is lobbying to remain the Director and not just serve in the interim after Michelle Lee’s resignation.

Despite going on with the protest after the USPTO denied a use permit application for the event, a source from the event reports that all planned aspects of the protest, including the burning of patents in clear view of the USPTO, occurred without anyone going to jail… Inventors went to the front steps of the USPTO and lit their patents on fire. According to Landreneau, a total of six patents were burnt in this manner.

US Inventor had planned on staging an event at which the organization would stage a peaceful protest of the Patent Trial and Appeal Board (PTAB). However, a decision by the U.S. Patent and Trademark Office to not approve the event is leaving protesters in jeopardy and may result in patent owners being put in jail. In an appeal letter dated August 10th sent to the USPTO, US Inventor argues that the USPTO’s denial of US Inventor’s use permit application is not permissible under the First Amendment to the U.S. Constitution.

On July 28th, 2017, China’s State Intellectual Property Office (SIPO) announced a new set of regulations which are intended to streamline the examination of patent applications in certain burgeoning fields of technology. The new policy, which comes in response to “the central government’s call for an improved business environment, streamlined procedures for administrative approval, and the booming market,” will allow for the examination of both utility model and industrial design patent applications; SIPO guidelines issued as recently as five years ago only covered a single patent application designation, invention patents.

The Federal Circuit, while deciding a preliminary injunction was properly granted, addressed the PTAB decision in its oral arguments and in its decision. In oral arguments Judge Moore stated, “You have to be able to say substantially, ‘cause there’s a million patents that use the word substantially.” And in their written decision the Federal Circuit explained: “We find it difficult to believe that a person with an associate’s degree in a science or engineering discipline who had read the specification and relevant prosecution history would be unable to determine with reasonable certainty when a water balloon is “substantially filled.”