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Framework for Statutory Reform of Section 101

A group of pro-patent senators and members of Congress have published what they are calling “a bipartisan, bicameral framework on Section 101 patent reform.” Basics of the framework are to create a defined, closed list of subject matter category exclusions: Fundamental scientific principles; Products that exist solely and exclusively in nature; Pure mathematical formulas; Economic or commercial principles; Mental activities.  Under the framework, a patent would not be eligible based upon “simp...
Tags: Law, Congress, Patent


Federal Circuits decides that 100% is different than One Hundred Percent

by Dennis Crouch E.I. DuPont de Nemours & Co. v. Unifrax I LLC (Fed. Cir. 2019) In 2014, DuPont sued Unifrax for infringing its patented flame-barrier that is both lightweight and thin. U.S. Patent 8,607,926 (“Composite Flame Barrier Laminate for a Thermal and Acoustic Insulation Blanket”). The jury sided with DuPont — finding the asserted claims infringed and not proven invalid.  Over a dissent from Judge O’Malley, the Federal Circuit has affirmed — finding that substantial evidence supports th...
Tags: Law, Uspto, DuPont, AIA, Patent, O'Malley, Reyna, Federal Circuit, Dennis Crouch, Dupont De Nemours Co, Unifrax, Federal Circuits, Unifrax I LLC Fed, Cecil Quillin


Fooey on the Draft

Iancu v. Brunetti (Supreme Court 2019) [Oral Arg Transcript] In this case, the Federal Circuit held that the prohibition on registering “immoral” or “scandalous” marks is a facial violation of a registrant’s First Amendment free speech rights.  Here, Brunetti is seeking to register the mark “FUCT,” which the solicitor identified as a close homonym of “the paradigmatic word of profanity in our language.” Oral arguments were held on April 15 before the nine Supreme Court justices. In the case bef...
Tags: Supreme Court, Law, California, Uspto, Patent, Tam, Cohen, Coast Guard, Roberts, Ginsburg, Alito, PTO, Sotomayor, Breyer, Sommer, Kavanaugh


When Examiners Reopen Prosecution …

by Dennis Crouch Gilbert P. Hyatt v. Andrei Iancu (Supreme Court 2019) The following is a fairly typical pattern within the USPTO: After final rejection, applicant files a PTAB appeal notice and brief; Rather than pursue its side of the appeal, the Examiner withdraws the pending rejections — and then re-opens prosecution with a new set of rejections. Although few cases go through this more than one cycle.  Gilbert Hyatt has long been an exception — both in terms of how he treats the PTO and ho...
Tags: Law, Patent, Hyatt, U S Supreme Court, Allen, PTO, Examiner, Patent Trial and Appeal Board, Appeal Board, Gilbert Hyatt, Dennis Crouch Gilbert, Andrei Iancu Supreme Court, Board U S ex rel Steinmetz


USPTO Update at Iowa Law – May 14

If you’re in the Iowa region, we invite you to attend Patent Law’s New Directions: An Update from Director Porcari at the University of Iowa College of Law on Tuesday, May 14, from 2:45 PM to 5:00 PM.  Damien Porcari, Director of the Elijah J. McCoy Midwest Regional United States Patent and Trademark Office, will talk about the new 101 guidelines, design patents and USPTO policies. Two hours of CLE credit are pending. There is no cost for the seminar, but we ask that attendees register in advanc...
Tags: Law, Patent


Reasonably Continuous Diligence vs. Continuous and Reasonable Diligence

ATI Tech ULC v. Iancu (Fed. Cir. 2019) On appeal, the Federal Circuit has sided with the ATI — finding the patentee’s Unifed Shader claims patentable over the prior art. U.S. Patents 7,742,053, 6,897,871, and 7,327,369 (Graphics processing architecture employing a ‘unified shader’). These patents are pre-AIA and the patentee is claiming that its invention pre-dates the prior art.  The PTAB agreed that ATI’s conception was early enough, but concluded that the patentee lacked diligence. One proble...
Tags: Law, AIA, Patent, Ati, Fed, PTO, Federal Circuit, IPR, PTAB, Iancu Fed, ATI Tech ULC, Perfect Surgical Techniques Inc, Olympus Am Inc


TM: Web Page Advertisements Do not (Necessarily) Constitute Use in Commerce

In re Siny Corp. (Fed. Cir. 2019) In January 2019, the Federal Circuit issued a non-precedential opinion in this trademark case.  Based upon a USPTO request, the court has now reissue the decision as precedential. See Fed. Cir. R. 32.1(e). As part of the trademark registration process, an applicant must submit a specimen of the mark as used in commerce.  Here, Siny is seeking to register the mark CASALANA for its knit wool fabric and submitted a printout from a webpage purporting to show the mar...
Tags: Law, Uspto, Patent, PTO, The Board, Federal Circuit, Ttab, Fed Cir R, Siny Corp Fed


Does a “Blocking Patent” also Block Objective Indicia of Nonobviousness

by Dennis Crouch Acorda Therapeutics, Inc., v.  Roxane Laboratories, Inc. (Supreme Court 2019) Obviousness is the core doctrine of patentability and primary focus of both patent examination and post issuances PTAB challenges.  In this case, Acorda has asked the U.S. Supreme Court to spend some time on this important doctrine — and particularly consider the role of objective indicia of nonobviousness such as “commercial success, long felt but unsolved needs, [and] failure of others.” Quoting Deer...
Tags: Law, Congress, Court, US, Merck, Ap, Graham, Fda, Patent, Fed, U S Supreme Court, Newman, Acorda Therapeutics Inc, Microsoft Corp, Elan, Merck Co


Infringing by Using a System vs Making/Selling the System

by Dennis Crouch Omega Patents LLC v. CalAmp Corp. (Fed. Cir. 2019) Omega’s patents cover remote control and monitoring systems for vehicles.  The defendant, CalAmp, helps companies and governments monitor their vehicles (location and status, such as battery health and vehicle speed).  In the infringement trial, a Florida jury sided with the patentee – finding the patents willfully infringed and not invalid.  The district court then trebled the damages and awarded attorney fees — for a tidy sum...
Tags: Motorola, Florida, Law, Patent, Omega, Fed, Federal Circuit, CalAmp, Dennis Crouch, Intellectual Ventures, Omega Patents LLC, CalAmp Corp Fed, Centillion Data Sys LLC, Qwest Commc


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Joyce Allaire: C3J Therapeutics Announces Issuance of U.S. Patent Covering Synthetic Bacteriophage (Source: Associated Press) Reed Albergotti: Apple Faces Potential iPhone Import Ban After Patent Infringement Ruling (Source: The Washington Post) Adam Candeub: FTC Must Protect New Entrants From Anticompetitive Patent Infringement Suits (Source: Forbes) Kirsten Donovan:  Jonathon Ramsey: Ford Bronco Patents? Two Designs for Removable Doors (Source: Auto Blog...
Tags: Law, Washington Post, Associated Press, Patent, Reed Albergotti, Wendy Xu, Adam Stephenson, Bits and Bytes, Juvan Bonni, Daly Crowley Mofford Durkee, Adam Candeub, Google Patents Commentary, Joyce Allaire, Forbes Kirsten Donovan, Jonathon Ramsey, Ford Bronco Patents


Combating the Trafficking in Counterfeit and Pirated Goods

On April 3, 2019, President Trump released a “memorandum on combating trafficking in counterfeit and pirated goods” which calls for a report on the state of the issue to be completed by November 1, 2019.  Homeland security is in charge, with consultations from Commerce, Justice, OMB, USTR, and others, including intellectual property rights holders. The memorandum mentions a couple of prior studies on counterfeiting and piracy, but the current data continues to be lacking — as the GAO wrote in 20...
Tags: Law, US, Patent, Trump, GAO, Commerce Justice OMB USTR


Eligibility Train Wreck Continues its Skid: Skidmore Deference for the PTO on Eligibility

by Dennis Crouch A key point of argument and policy over the past decades has been the level of authority given to the USPTO as the government’s expert patent law agency.  When the USPTO makes a decision — is that decision respected by other tribunals?  At times the agency is given substantial deference (factual conclusions made by the PTAB), but other agency decisions are also regularly reviewed de novo without deference.  With regard to interpretation of substantive patent law, PTO determinat...
Tags: Law, Uspto, Patent, Cleveland Clinic, Moore, PTO, U S Patent and Trademark Office, Federal Circuit, Chakrabarty, Dennis Crouch, Fed Cir, PTAB, Diehr, Skidmore, Swift Co, Dir Iancu


The IP Section — Stream the First Four Episodes

by Dennis Crouch I first worked with Wes Austin back in 2006 as he developed his Dunes CLE program and later followed with some interest his Utah-based patent firm Austin-Rapp.  As the image shows below, Austin has expanded from patent law into comedy as well.  His new sitcom – THE IP SECTION – merges the two (as well as Mormonism) and stars a patent lawyer who wants to be a stand-up comedian. Watch the series here: The first four episodes are available for streaming on YouTube: https://www.you...
Tags: Utah, Law, Austin, Patent, Dennis Crouch, Wes Austin, Austin Rapp


The Role of Profit Disgorgement in IP Law

by Dennis Crouch In its new petition to the Supreme Court, Romag asks “whether willful infringement is a prerequisite for an award of an infringer’s profits.”  In utility patent law, courts have held that disgorgement of the infringer’s profits is never available as a remedy.  That option was eliminated from the Patent Act in 1946.  In design patents, however, disgorgement is the ordinary remedy. Romag’s case falls under a different law (Trademark Law) and statutory scheme (The Lanham Act).  Sec...
Tags: Law, Connecticut, Patent, First Circuit, U S Supreme Court, Federal Circuit, Dennis Crouch, 1st Circuit, Fossil Inc, Romag, Supreme Court Romag, U S Supreme Court Romag Fasteners Inc


Power of Negative Limitations

IBM v. Iancu (Fed. Cir. 2019) (non-precedential) In two separate IPR proceedings, the PTAB found several of IBM’s claims unpatentable as obvious. U.S. Patent No. 7,631,346 claims 1, 3, 12, 13, 15, and 18.  On appeal, the Federal Circuit has vacated / reversed those opinions. The patent here claims a  user-authentication method for a “single-sign-on . . . within a federated computing environment.”  The basic setup here is that user known to a “first system” wants access to resources on a “second ...
Tags: Law, Uspto, Ibm, Patent, Board, Federal Circuit, Petitioner, IPR, PTAB, Iancu Fed, Mellmer


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Jenene Thomas:Motus: Motus GI Expands Intellectual Property Portfolio with Issuance of New U.S. Patent for the Pure-Vu® System (Source: Associated Press) Teri Dahlman Maura Gavaghan: Translate Bio Granted U.S. Patent Relating to Messenger RNA (mRNA) Delivery (Source: Associated Press) Susan Decker, Ian King, and Mark Gurman: Apple Dodges One Import Ban in Qualcomm Fight, Faces Another (Source: Bloomberg) David Tracy: Ford Patents a Way to Turn Your Pickup Tr...
Tags: Law, Washington Post, Ford, Associated Press, Patent, Mark Gurman, Motus, Bits and Bytes, Juvan Bonni, Mark P McKenna, Jenene Thomas, Teri Dahlman Maura Gavaghan, Susan Decker Ian King, Bloomberg David Tracy, Google Patents Commentary, Raad Ahmed


Trump Troll’s Trademark Application Rejected in UK

Trump Int’l. Ltd. v. DTTM Operations LLC, [2019] EWHC 769 (Ch). In a decision today, the High Court of Justice (Chancery Div.) has upheld the UK Intellectual Property Office (UKIPO) decision siding with DTTM and finding that Trump Int’l. had filed its opposed trademark application in bad faith and also acted in bad faith during the proceedings. A quirk here regarding the names –– DTTM most likely stands for “Donald Trump Trademarks” and is a holding company owned by President Trump and/or his fa...
Tags: UK, Law, Patent, Trump, Trump Troll, UK Intellectual Property Office UKIPO, DTTM Operations LLC, Trump Int ' l Ltd, High Court of Justice Chancery Div, DTTM, Trump Int, Trump International Limited, Michael Gleissner, Gleissner, DTTM The High Court


Federal Circuit: Hardening the Line on Method-of-Treatment Claims

by Dennis Crouch This case focuses on patents covering the opioid drug oxymorphone that Endo sells as Opana ER.  In 2017, the FDA requested that (reformulated) Opana ER be removed from the  market in response to the high risk of its illicit use.  Endo had previously pulled Opana ER from the market in 2012 and then re-launched in a “non-crushable form.”  However, that form continued to be abused (including by liquefying and injecting). In response to a new FDA request, Endo again removed the refo...
Tags: Law, Fda, Patent, Fed, Mayo, Federal Circuit, Endo, Endo Pharmaceuticals Inc, Dennis Crouch, Fed Cir, Vanda, Vanda Pharmaceuticals Inc, Teva Pharmaceuticals USA Inc Fed, West Ward Pharmaceuticals International Ltd, Natural Alternatives International, Creative Compounds LLC


A Diligent Delay – Claiming Priority to Invention Dates.

by Dennis Crouch In its final judgment, the Patent Trial & Appeal Board (PTAB) found against Arctic Cat — finding all of the challenged claims unpatentable.  On appeal, the Federal Circuit has rejected the judgment — holding that the Arctic Cat patent claims should be given priority as of their invention date rather than simply the priority filing date.  This is a case were the patent claims appear valid under pre-AIA law, but would be invalidated if AIA prior art rules applied.  U.S. Patent Nos...
Tags: Law, United States, AIA, Patent, Phillips, Tyco, PTO, Boyd, Federal Circuit, Dennis Crouch, Patent Trial Appeal Board PTAB, PTAB, Arctic Cat, Actic Cat


Inventive yet Not: Reconciling Eligibility and Obviousness

by Dennis Crouch Mario and Jose Villena have thus far been stymied in their attempt to obtain patent protection for their claimed “system for distributing real-estate related information.” The pair filed an international PCT application in 2004 followed by a U.S. non-provisional in 2005 that has been abandoned, and finally the present application in 2011.  U.S. Patent App. No. 13/294,044. The Examiner issued a final rejection in 2014 on several grounds – obvious and anticipated / indefinite / fa...
Tags: Supreme Court, Law, Court, Quinn, Zillow, Patent, Alice, APA, U S Supreme Court, PTO, Federal Circuit, AVM, PTAB, Alice Mayo, Villena, Dennis Crouch Mario


Inventor’s Problem-Identification Carries No Patentable Weight (When Alternative Motivation Exists)

by Dennis Crouch In re Conrad (Fed. Cir. 2019) The decision here offers a reminder of the objective nature of the obviousness analysis. Conrad’s invention is a urine-deflector — especially useful when toilet-training low-accuracy children. The main idea is to block the opening between the toilet seat and the toilet bowl with a bendable deflector that “lacks a folding seam” — a design element added to avoid incidental urine collection and resulting malodor. The product is sold as the P-Flector.  ...
Tags: Patent


Unauthorized Practice of Patent Law and State Regulators

by Dennis Crouch People v. Dak Steiert and Intelligent Patent Services, LLC (Co. 2019) A recent decision by the Colorado Supreme Court has ordered Mr. Dak Steiert (and his company Intelligent Patent Services) to cease unauthorized practice of law in Colorado. Steiert’s website (expertpatentlaw.com) touted its patent expertise: “our patents are drafted entirely by patent attorneys with at least 5 years experience. Unlike any other firm, we do not use paralegals to draft patents. we don’t let rook...
Tags: Supreme Court, Law, Colorado, Missouri, Uspto, Patent, Colorado Supreme Court, Michael McCabe, Dennis Crouch, Janson, Eagle County Colorado, LegalZoom com Inc, Dak Steiert, Intelligent Patent Services LLC, Intelligent Patent Services, Colorado Steiert


Network Monitoring and

by Dennis Crouch It appears that the Federal Circuit has sharpened its blades and is now slicing the bologna extra thin.  This results-oriented decision unfortunately shades-facts and provides no clarity in its legal analysis of eligibility. While I agree that this network security invention should be eligible for patenting – the court’s analysis does not provide a convincing foundation for that result.  SRI International, Inc. v. Cisco Systems, Inc. (Fed. Cir 2019) At the close of trial, the ju...
Tags: Supreme Court, Law, Cisco, Patent, Fed, Robinson, O'Malley, Federal Circuit, Stoll, Dennis Crouch, Lourie, Vanda, Internet Security Systems Inc, SRI International Inc, Cisco Systems Inc Fed, Electric Power Group


Physical-Realm: The Federal Circuit’s New Machine-or-Transformation

by Dennis Crouch In Bilski v. Kappos, the Supreme Court issued three separate opinions — although all the justices agreed that physicality — machine-or-transformation — offers at least an important clue for deciding the issue. Five Justice majority opinion: “The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible ‘process.’ . . . [Rather, it is] just an important and useful clue.” Four Justice minority opinion: Arguing that a “business me...
Tags: Justice, Supreme Court, Law, Court, United States, Patent, Fed, Microsoft Corp, Federal Circuit, Fed Cir, Vanda, Bilski, Capital One Bank, Intellectual Ventures I LLC, Thales Visionix Inc, McRO


Supreme Court Shows its Interest in New Eligibility Case

by Dennis Crouch Hikma Pharmaceuticals USA Inc., et al. v. Vanda Pharmaceuticals Inc., No. 18-817 (Supreme Court 2019) In this case, the Supreme Court has requested input from the U.S. Government — requesting the views of the U.S. Solicitor General (CVSG).  The SG’s office will likely submit its brief in December 2019 — so we have a nice wait on this question presented: The question presented is whether patents that claim a method of medically treating a patient automatically satisfy Section 101...
Tags: Supreme Court, Law, Hp, Patent, Hikma, SG, Federal Circuit, U S government, Vanda Pharmaceuticals Inc, Berkheimer, Natural Alternatives Int ' l Inc, Creative Compounds LLC Fed, Dennis Crouch Hikma, Pharmaceuticals USA Inc


Broadened Claims and Written Description

by Dennis Crouch Sprint Communications Co., L.P. v. Time Warner Cable, Inc. (Fed. Cir. 2019) (Modified Opinion)(Original Opinion) In its original decision in the case, a 2-1 appellate panel upheld a jury’s $140 million verdict in favor of the patent holder Sprint.  Time Warner petitioned for rehearing on two grounds: (1) damages apportionment; and (2) written description requirement. In response, the appellate panel has slightly modified its original opinion — but only to better explain its dama...
Tags: Law, Time Warner, Sprint, Voice, Patent, Chen, Bryson, Mayer, Georgia Pacific, Dennis Crouch, Sprint Communications Co L P, Time Warner Cable Inc Fed, Sprint Time Warner


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Edvard Pettersson and Bill Callahan: Qualcomm Wins First U.S. Jury Trial Against Apple (Source: Yahoo Finance) Manas Mishra and James Emmanuel: U.S. Court Rejects Alvogen’s Patent Challenge for Celgene’s Cancer Drug (Source: Yahoo Finance) Megan Rose Dickey: BlackBerry Sues Twitter for Patent Infringement (Source: Tech Crunch) Richard Borsuk, Christopher Cushing and Jonathan Oatis: Foxconn Rejects Microsoft Patent Lawsuit, Says Never Had to Pay Royalties (So...
Tags: Google, Microsoft, Law, Wipo, Patent, Foxconn, Megan Rose Dickey, Electronic Frontier Foundation, Celgene, Jonathan Oatis, Yahoo Finance, U S Court, Bill Callahan, Alvogen, Edvard Pettersson, Bits and Bytes


The invention here is a treatment claim — that is therefore patent eligible. 

by Dennis Crouch The decision here is an important case adding substantial nuance to the product and law of nature exceptions. Natural Alternatives Int’l. Inc. v. Creative Compounds, LLC (Fed. Cir. 2019) Earlier this week I wrote about a separate Natural Alternatives reexamination appeal pending before the US Supreme Court on the issue of improper priority claims. The case at hand focuses on patent eligibility.  Natural Alternatives sued Creative for infringing six of its patents covering variou...
Tags: Law, Patent, US supreme court, Moore, Reyna, Federal Circuit, Wallach, Chakrabarty, Dennis Crouch, Vanda, Natural Alternatives Int ' l Inc, Creative Compounds LLC Fed


Claims are Invalid (not Patents)

Sophos, Inc. v. RPost Holdings (Fed. Cir. 2019) (RmailSophos) The two paragraph decision in this case is designed to serve as a reminder that patent validity/infringement is considered on a claim-by-claim basis. RPost sued Sophos alleging infringement its U.S. Patent No. 8,504,628.  However, during the litigation RPost filed infringement contentions that focused only on claims 14, 19, 24, 26, 27 and 30.  In its invalidity argument, Sophos directed its attention only to these asserted claims.  Ho...
Tags: Law, Patent, Sophos, Dickinson, Federal Circuit, Sophos Inc, RPost Holdings Fed


Boalick and Bonilla appointed as PTAB Chief and Deputy Chief

Congratulations to Scott Boalick and Jacqueline Bonilla for their appointments as Chief Judge and Deputy Chief Judge for the Patent Trial and Appeal Board. Judges Boalick and Bonilla have already been doing the work since September 2018 in their roles as Acting Chief and Deputy Chief.  Earlier this year, Dir. Iancu also appointed Thomas Krause as USPTO Solicitor.  These three individuals are each highly qualified with deep intellectual property and government experience. These appointments round...
Tags: Law, Patent, Bonilla, Dir Iancu, Jacqueline Bonilla, Thomas Krause, Boalick, Scott Boalick, Patent Trial and Appeal Board Judges Boalick



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