Posts Tagged: "Leahy-Smith AIA"

Luckily for Apple and Microsoft, however, VirnetX did not assert the ‘135 patent against Mangrove Partners, a hedge fund, which filed a petition for IPR against the ‘135 patent on April 14th, 2015; Mangrove reportedly shorted VirnetX stock around this time. On October 7th, 2015, the PTAB panel adjudicating the case decided to institute the IPR as the petitioner Mangrove had demonstrated a reasonable likelihood of proving invalidity of the challenged claims. Then in January 2016, Apple was successful in having its petition for IPR review of the challenged ‘135 claims joined to Mangrove’s IPR. VirnetX had objected to Apple’s motion for joinder based on the Section 315(b) language but the PTAB found that Section 315(b) did not apply to joinder motions which are governed by 35 U.S.C. § 315(c).

Longtime Texas Representative Lamar Smith (R-TX), chairman of the House Committee on Science, Space, & Technology, will be retiring from his duties on Capitol Hill and will not seek reelection for another term of service. Smith, a former Chairman of the House Judiciary Committee and powerful member of the Republican leadership, will leave a void. His retirement marks the end of a 30-year tenure of public service and will immediately create a leadership void on the House committee responsible for overseeing our nation’s science and space policies.

The PTAB subjects all patent owners to double jeopardy, but the situation is particularly bad for pharmaceutical companies which already have to face a Congressionally-mandated validity review process under the Drug Price Competition and Patent Term Restoration Act, colloquially known as Hatch-Waxman. This law creates a regime by which a generic drugmaker can file an abbreviated new drug application (ANDA) with the U.S. Food and Drug Administration (FDA). The branded pharmaceutical listed in the Orange Book will be covered by patents but the generic drugmaker can include a Paragraph IV certification in the ANDA, a declaration that the patents covering the Orange Book-listed drug are unenforceable and invalid. When a company like Allergan has to face Hatch-Waxman validity trials in federal district court and serial IPRs at the PTAB, it turns Allergan’s Restasis patents into piñatas taking hit after hit at multiple forums before being finally ripped asunder at some point.

Of the 1,582 patents with a final written decision, 1,343 were found to have defects by the PTAB. That is an 85% defect rate. Only 239 patents were affirmed to be fully compliant with the statutes by the PTAB. Yet the Office of Patent Quality Assurance (OPQA) claims a 6-8% defect rate… 263 patents were found valid in full and fair trials in a court of law and also tried in the shortcut infringer-biased PTAB. Only 63 of them got the same results in both venues. The other 200 the PTAB came to a different conclusion. If the courts are correct then the PTAB is wrong 76% of the time.

U.S. Inventor, the nationwide inventor advocacy organization representing over 13,000 members, including, individual inventors, university research institutions, patent holders and intellectual property dependent start-up businesses, today announced that its members will stage a protest in front of the U.S. Supreme Court on November 27th during oral arguments in the case of Oil States Energy Services, LLC v Greene’s Energy Group, LLC.

The respondent immediately takes issue with the argument that patents are not public rights, summarily citing MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d 1284 (Fed. Cir. 2015), cert. denied, 137 S. Ct. 292, which held that that neither Article III nor the Seventh Amendment bars IPRs, a holding that, according to the respondent, does not conflict with any decision of the Court or any other court of appeals, rendering further review unwarranted.

IPRs introduced an asymmetric component which particularly burdens the patent holder by requiring a very expensive ten-fold higher cost to defend the patent in the PTAB relative to the alleged infringer(s) cost of initiating an IPR. In sum, then, by writing the AIA for self-benefit, the big tech industry did an end run around i4i, breached the presumption of patent validity and pushed patent validity determinations back to the PTO with the objective to deny patent holders critical due process rights. The main impetus to persuade Congress to initiate this after grant review process lied in the false narrative of the big tech cartel that patents issued by the PTO are of a poor quality.

The U.S. patent system is the primary contributor for the U.S. economy. Since the foundering of the nation, the patent system has fostered an innovation culture that is directly responsible for making inventions that are more than all inventions accumulated in all major civilized regions in several thousands of years. However, the U.S. has inherent disadvantages in the political system and court systems… After the irreparable damages of public trust in the patent system, overhauling the patent system is no longer a feasible option. To continue existing as a powerful nation in the world, the U.S. must put its population back to the inventing business and create a renewed innovation culture, which could reach the entire population. It cannot count on the “miserable system” known in Thomas Edison’s time. Due to intensified competition and critical roles of technologies in competition, America must do far more than what is necessary to turn the dead patent system back to the same “miserable system”. One more thing that the Congress should do is to revive all invalidated patents under the AIA.

At least $17 million. That is what my Bunch O Balloons patent has cost so far. It could grow to $50 million. Yes, we are talking about water balloons, not smartphones. How can this be? Because the patent grant issued by the U.S. Patent and Trademark Office means nothing to infringers like Telebrands and Walmart. They simply ignore the patent and rush to take over the market with their knock-offs (Balloon Bonanza in 2015, Battle Balloons in 2016, and Easy Einstein Balloons in 2017). Then they use those revenues to hire attorneys and experts to say the patent is invalid. If the patent owner lacks deep pockets or good lawyers, his patent will not survive. If he does have access to infinite funds, he has about a 5 percent chance of survival thanks to the America Invents Act (AIA) and the USPTO’s implementation of the Patent Trial and Appeal Board (PTAB).

For the first 220 years of United States black letter law and precedent based directly on the U.S. Constitution, patents are property rights. Even the Republican Party Platform states that patents are property rights. Issa disagrees with all of that. Issa seems to believe that patents are instead some sort of public entitlement like food stamps as is evident in his bill, the America Invents Act, and his continuing actions even last week. Issa’s hypocrisy is so blatant, so obvious and so up front that I’m not sure he even understands what he just said, which is a very dangerous problem. So long as Darrell Issa remains in key lawmaking position in the Republican leadership in Congress, venture capital, patenting, new technologies, startups and jobs will continue to flee from the U.S. to China.

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.

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…