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Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Drue De Angelis: SpinalCyte Announces New Canadian Patent (Source: Ortho Spine News) Adam Behsudi: Envoy: China Opening its Doors to U.S. in Trade Talks (Source: Politico) Nancy Cohen: Apple Patent Talk: Another Keyless Wonder as the Car Sees You Approach (Source: Tech Xplore) Christian de Looper: Apple Patent Application Hints at Flexible Display That Hides Speakers, Buttons, and More (Source: Digital Trends) Source: USPTO Commentary and Journal Artic...
Tags: Supreme Court, Law, Uspto, Patent, David Boundy, PTAB, Nancy Cohen, Marshall Gerstein, Adam Behsudi, Bits and Bytes, Juvan Bonni, Drue De Angelis, SpinalCyte Announces New, Ortho Spine News, Mala Chatterjee, Sandip H Patel


A Written Description of the Invention (including how it is made?)

by Dennis Crouch CenTrak v. Sonitor Tech (Fed. Cir. 2019) is a quirky case that basically stands for the (wrongheaded) proposition that the Written Description Requirement does not usually require a description of how to make the invention actually work. Here, largely the court relied on the broad language of  Alcon Research Ltd. v. Barr Labs., Inc. , 745 F.3d 1180, 1191 (Fed. Cir. 2014) (“written description is about whether the skilled reader of the patent disclosure can recognize that what ...
Tags: Law, Patent, Fed, Federal Circuit, ARIAD, Alcon Research Ltd, Sonitor, Dennis Crouch CenTrak, Sonitor Tech Fed, Barr Labs Inc


User Interface Claims are Technological and Thus Not Subject to Business Method Review

by Dennis Crouch IBG LLC v. Trading Technologies Int’l (Fed. Cir. 2019) (non-precedential) This appeal stems from Covered Business Method (CBM) Review decisions on four related patents owned by TT.  The PTAB instituted all four CBM reviews. However, by the time of final decision, two of the challenged patents had been already upheld on eligibility by the Federal Circuit.  For those two patents, the PTAB followed the court’s lead and found the patents were directed to eligible subject matter. How...
Tags: Law, AIA, Patent, Fed, TT, Federal Circuit, Dennis Crouch, PTAB, Covered Business Method CBM, Trading Technologies, Business Method Review, IBG LLC, Trading Technologies Int


Case Dismissed: No Standing When Deal Fell Through

Momenta Pharma v. Bristol-Myers Squibb Co. (Fed. Cir. 2019) In this recent decision, the Federal Circuit dismissed Momenta’s appeal — finding that the company lacks standing to appeal its loss before the PTAB.  The decision stands on fairly controversial grounds and in some tension with Supreme Court jurisprudence on appellate jurisdiction requirements.  Still, I suspect it will be cabined-in by its facts and not have a large precedential impact. In 2015, Momenta petitioned for inter partes revi...
Tags: Supreme Court, Law, US, SEC, Patent, Federal Court, Bms, Mylan, Federal Circuit, Momenta, IPR, DC Circuit, U S Constitution, Federal Circuit Although, Momenta Pharma, Bristol Myers Squibb Co Fed


Progress and Potential: A profile of women inventors on U.S. patents

The following comes directly from the USPTO:  On February 11, 2019, the USPTO released “Progress and Potential: A profile of women inventors on U.S. patents,” a report on the trends and characteristics of U.S. women inventors named on U.S. patents granted from 1976 through 2016. The report shows that women still comprise a small minority of patent inventors. Further, it highlights the untapped potential of women to spur U.S. innovation. Women, like other under-represented groups, are among the “...
Tags: Law, America, Uspto, Patent


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Alexandre Tanzi: U.S. and Canada Make Strides in Bloomberg 2019 Innovation Index (Source: Bloomberg) Iqra Farooq: Computer Program That Could Bypass Patents to Produce Synthetic Drugs (Source: European Pharmaceutical Review)  Atty. Arthur W. Coviello, Atty. Richard Goldenberg, and Atty. William G. McElwain: United States: Federal Circuit Patent Update (Source: Mondaq) Collin Woodard: Patent Application Hints At All-Wheel-Drive Ford Mustang Hybrid (Source: Mo...
Tags: Law, China, Canada, United States, Patent, Phoenix, Financial Post, Perkins Coie LLP, Christopher Reynolds, Peter Finnie, Colleen V Chien, Bits and Bytes, Juvan Bonni, Alexandre Tanzi, Bloomberg Iqra Farooq, European Pharmaceutical Review


Words of Ambiguity in Specification Save patent Scope

by Dennis Crouch Continental Circuits LLC v. Intel Corp (Fed. Cir. 2019) Claim-construction used to be the bread-and-butter of Federal Circuit decisions.  That standard was of course upset by the onslaught of eligibility decisions from district courts and BRI obviousness cases out of the PTAB. The patents at issue here all relate to circuit board construction – and dealing with the problem of delamination. The claimed solution is uses “a unique surface structure . . . comprised of teeth that are...
Tags: Law, Patent, Phillips, Federal Circuit, Dennis Crouch, Continental Circuits LLC, Intel Corp Fed


Diagnosis: Ineligible

by Dennis Crouch Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC (Fed. Cir. 2019) There is a lot to unpack in this decision, and so this is just a small discussion of an important Federal Circuit opinion – DC Mayo is involved in another diagnostic method patent dispute — and again has come out on-top with a finding that the asserted patent claims are ineligible under 35 U.S.C. 101. That district court finding has now been affirmed on appeal, although subject to a strong dissent from...
Tags: Law, Patent, Prometheus, Fed, Newman, Mayo, Federal Circuit, Stoll, Athena, Dennis Crouch, Lourie, Vanda, Athena Diagnostics Inc, Vanda Pharm Inc, Mayo Collaborative Services LLC Fed Cir, DC Mayo


State of the Union and IP

President Trump’s State of the Union Speech included only a small focus on intellectual property rights — and only in the international sphere: We are now making it clear to China that after years of targeting our industries, and stealing our intellectual property, the theft of American jobs and wealth has come to an end. . . . Our new U.S.-Mexico-Canada Agreement — or USMCA — will replace NAFTA and deliver for American workers: bringing back our manufacturing jobs, expanding American agricult...
Tags: Law, China, Patent, Trump, Nafta, U S Mexico Canada Agreement


Am I my Server Rack?: Do Edge Nodes Satisfy the Venue Rules?

by Dennis Crouch In re Google (Fed. Cir. 2019) This appeal stems from a pending E.D.Tex. infringement lawsuit filed in 2017. SEVEN Networks, LLC v. Google LLC, 2:17-CV-00442 (E.D. Tex. Aug. 22, 2017).  In the case, SEVEN accused Google of infringing ten of its patents: 8,078,158, titled “Provisioning Applications for a Mobile Device” 8,811,952, titled “Mobile Device Power Management in Data Synchronization Over a Mobile Network With or Without a Trigger Notification” 9,247,019, titled “Mobile A...
Tags: Google, Texas, Law, Patent, Newman, Reyna, Eastern District of Texas, Taranto, Federal Circuit, Cray, Tex, Dennis Crouch, Dyk, Lourie, TC Heartland, Google Fed


2019 Revised Subject Matter Eligibility Guidance

Chad Gille at BigPatentData reports on the first handful of PTAB decisions considering eligibility under the 2019 Revised Subject Matter Eligibility Guidance. The outcome — 101 Rejection Affirmed in five of six cases.  Gilles writes “If your claim can still be lumped into the very broad ‘certain methods of organizing human activity’ the new guidance may not be of much help.” LINK  
Tags: Law, Patent, Gilles, BigPatentData, Chad Gille


Standing on the Shoulders of those Without Standing

by Dennis Crouch Mylan Pharms. Inc. v. Research Corp. Techs., Inc.  (Fed. Cir. 2019) This post begins with an obviousness discussion, then moves to IPR standing, and finally talks about SAS.  Obviousness: In Mylan, the Federal Circuit affirms a PTAB decision siding with the patentee and holding that RCT’s pharmaceutical compound patent claims were not proven unpatentable (i.e., confirming patentability). The patent at issue is directed toward an enantiomeric isomer (R configuration) of lacosamid...
Tags: Supreme Court, Law, Patent, Board, Mylan, Federal Circuit, IPR, SAS Institute Inc, Dennis Crouch, PTAB, Argentum, Iancu, Joinder, Inter Partes Review IPR, RCT, Mylan Pharms Inc


Collaborating Across Borders

This image is a bit hard to read, but it shows the cross-border invention data mentioned in yesterday’s post — focusing on which nations tend to have collaborative inventors with which other nations.  US is central here, but there are other clusters as well.
Tags: Law, US, Patent


Inventors Per Patent III

U.S. patents list the country of residence of the inventors at the time of patent issue — although I imagine that many applicants do not update residence during application pendency.  The chart below looks at the first-listed inventor for recently issued patents and then reports the average number of inventors per patent for each country.  An interesting caveat to this report is that about 8% of U.S. patents involve cross-border inventions. These are multi-inventor patents with at least two of ...
Tags: Law, Patent


Self-Harm: Company’s own 102(e) prior art Cancels the Patent

by Dennis Crouch Duncan Parking Techs., Inc. v. IPS Group, Inc. (Fed. Cir. 2019) andIPS Group, Inc. v. Duncan Solutions Inc. (Fed. Cir. 2019) This decision involves parallel appeals from (1) a district court siding with the accused infringer on noninfringement grounds; and (2)  a PTAB IPR decision siding with the patentee confirming patentability. On appeal, the accused infringer won on several grounds, but it appears that at least some of the claims will be found both infringed and valid. In th...
Tags: Law, AIA, Patent, IPS, Schwarz, Federal Circuit, IPR, Dennis Crouch, PTAB, Duncan Parking Techs Inc, IPS Group Inc Fed Cir 2019 andIPS Group Inc, Duncan Solutions Inc Fed


2019 Revised Subject Matter Eligibility Guidance: Advanced Module

On February 26, the USPTO will be holding a 3-hour online training focused on the 2019 Revised Subject Matter Eligibility Guidelines.  [Free – Sign-Up Here] This will basically parallel examiner training on the same subject matter and will be led by USPTO trainers.  The Office has limited space, but has scheduled potential additional training on February 27 and 28.  Sign-up by February 3, 2019. Read these Eligibility Guidelines from the USPTO    
Tags: Law, Office, Uspto, Patent


Teams of Inventors: Trends in Patenting

by Dennis Crouch I recently posted a chart showing a short time series showing the number of inventors per patent.  The basic conclusion from that post was in the headline: Average Number of Inventors per Patent Continues Steady Rise.  Here, I have updated and added to those charts. The first chart below reaches back to 1976 — showing that the average number of inventors per patent has been steadily increasing over all of the past 40 years.  The trend has been amazingly steady and linear, and sh...
Tags: Law, AIA, Patent, Dennis Crouch, James Daily, Dir Kappos


New PatentlyO Law Journal article: Colleen Chien, Deferring Patentable Subject Matter

This past fall at the Administering Patent Law symposium at Iowa Law, Professor Colleen Chien presented an argument in favor of more intentional experimentation by administrative  agencies such, as the USPTO to test policy concepts and proposed several possibilities.  Below, Professor Chien describes one such project, based on the Merges/Crouch proposal for deferring patentable subject matter analyses in prosecution.  Read the accompanying PatentlyO Law Journal article here: Colleen V. Chien, P...
Tags: Google, Supreme Court, Law, Congress, Iowa, Uspto, Dc, Department Of Homeland Security, Patent, Alice, Federal Trade Commission, Donald, Chien, PAUL, Mayo, Duffy


Tappy the Robot vs xDeviceRobot

by Dennis Crouch The new HUAWEI indictments make include some amount of comedy.  The basic claim centers on an anthropomorphic robot named “Tappy.”   Tappy is owned by T-Mobile, but HUAWEI was allowed to use Tappy to test phones it was making for T-Mobile (subject to a non-disclosure agreement).  HUAWEI then started developing its own robot — with the much less friendly name of xDeviceRobot.   HUAWEI tried to buy Tappy, but was refused and so figured out a way to infuse xDeviceRobot with some of...
Tags: Law, Huawei, Patent, Dennis Crouch, Tappy


Inherency: Same Enzyme => Same Enzymatic Activity

by Dennis Crouch In re Ikeda Food Research Co., Ltd. (Fed. Cir. 2019) Ikeda is attempting to patent a glucose sensor using a particular enzyme (“a soluble flavin compound-binding glucose dehydrogenase”) that promotes glucose oxidizing.  U.S. Application No. 12/851,668. One U.S. patent is already issued in the family as well as Japanese , Chinese, and European patents.  In this case, however, the examiner rejected the claims as obvious and the PTAB affirmed.  The Federal Circuit has now also affi...
Tags: Law, Patent, Fed, O'Malley, PTO, Federal Circuit, Tsuji, Ikeda, Dennis Crouch, Southwire Co, PTAB, Par Pharm Inc, TWI Pharm Inc, Cerro Wire LLC, Real Party, In re Ikeda Food Research Co Ltd Fed


Google v. Oracle – Supreme Court Petition

by Dennis Crouch Google, LLC v. Oracle America (Supreme Court 2019) This new petition from Google asks important questions about the role of copyright in protecting software.  Questions presented: Whether copyright protection extends to a software interface. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. Rather than licensing Java, Google rewrote the programming language for Android App development in...
Tags: Google, Supreme Court, Law, Wikipedia, Oracle, Patent, Ninth Circuit, Federal Circuit, Dennis Crouch, Google LLC, Supreme Court Petition, Oracle America Supreme Court


Federal Circuit Returns this Christmas Gift

Polygroup v. Willis Electric (Fed. Cir. 2019) [Case 1 – Claim Construction][Case 2 – Claim Construction and Amendment] Willis Electric (Taiwan) owns several patents on artificial Christmas trees.  In 2015, Willis sued Macao-based Polygroup for infringement.  Polygroup turned-around and filed several inter partes review (IPR) petitions that were granted. In its final decisions, the PTAB sided with the patentee – finding that Polygroup had not proven the claims unpatentable.  On appeal, the Federa...
Tags: Law, Patent, Macao, Board, Brown, Willis, The Board, Federal Circuit, IPR, PTAB, Federal Circuit Returns, Polygroup, Willis Electric Fed, Willis Electric Taiwan


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Andrew Chung: U.S. Top Court Rejects Helsinn Over Anti-Nausea Drug Patent in Win for Teva (Source: Reuters) Christian de Looper: Apple Patent Application Shows Contact Info Could be Displayed on the iOS Home Screen (Source: Digital Trends) Claudia Napal Drayton and Bret Shapiro: CHF Solutions Expands Intellectual Property Portfolio with Two New Patent Filings for Innovations to Aquadex FlexFlow® System (Source: Associated Press)  Murray Slovick: Tesla Patent...
Tags: Law, Associated Press, Huawei, Patent, Andrew Chung, Teva, Peter S Menell, U S Top Court, Bits and Bytes, Juvan Bonni, Reuters Christian de Looper, Claudia Napal Drayton, Bret Shapiro, Murray Slovick, Electronic Design Commentary and Journal Articles, Perrin Grauer


Reduced to Practice, but Not Yet Ready for Patenting

by Dennis Crouch Barry v. Medtroinc, Inc. (Fed. Cir. 2019) In a split decision, the Federal Circuit has sided with the patentee Dr. Barry — affirming the induced infringement and $17 million damages judgments as well as several determinations regarding the public-use and on-sale statutory bars. The patents here are directed to spine surgery methods that involve large screws drilled into the spine. U.S. Patent Nos. 7,670,358 and 8,361,121. The dissenting opinion by Chief Judge Prost offers a con...
Tags: Law, Court, Barry, Patent, HIPAA, Federal Circuit, Prost, Dennis Crouch Barry, Medtroinc Inc Fed


Plano as the Venue Center for E.D.Texas

by Dennis Crouch The Eastern District of Texas winds its way from the gulf coast along the Louisiana and Arkansas border and up to Oklahoma. The district does not include of the largest Texas cities, but it does include the Dallas suburb of Plano (we can debate whether it is a suburb, but it is). Plano is important because it is Corporate HQ for a number of large companies and also serves as regional HQ for many others.  Plano is also supporting E.D.Tex. as an ongoing venue for patent infringeme...
Tags: Texas, Law, US, Arkansas, Dallas, Louisiana, Patent, PepsiCo Inc, Plano, District, Eastern District of Texas, Federal Circuit, Tex, Dennis Crouch, TC Heartland, Delaware Corporation


USPTO Update: Funds Last Till 2nd Week of February

by Dennis Crouch The USPTO has released additional information regarding its current operations and the ongoing Federal Government funding crisis.  Bottom line is that the PTO expects to continue its patent operations “until at least the second week in February.”  Things on DC appear to be thawing enough to provide hope that an appropriations bill will see some light before then. Although the USPTO is user-fee funded, it may only spend money that has been appropriated by Congress.  This limit co...
Tags: Law, Congress, Treasury, Uspto, Patent, PTO, Dennis Crouch


Average Number of Inventors per Patent Continues Steady Rise

by Dennis CrouchChart shows average for all US Utility Patents Issued Each Year.
Tags: Law, US, Patent, Dennis CrouchChart


Patent Term Adjustment at 10 year low.

by Dennis Crouch Following-up on Yesterday’s PTA post, I wanted to run some numbers on Patent Term Adjustment.  The chart below shows the average patent term adjustment for patents issued issued since 2005. The bump in early 2010 is due to a change in interpretation of the law in the Wyeth decision.  If the PTA had been calculated consistently during this entire period, we would now be seeing the lowest values during the entire 13 year reporting period. In many ways, PTA levels are a good measur...
Tags: Law, Patent, Congressional, PTO, Wyeth, PTA, Teradata, Dennis Crouch


Check your Patent Term Adjustment for Applicant Delays due to Late IDS Filings

by Dennis Crouch Supernus is an important case that may substantially extend the patent term adjustment (PTA) for your client.  You’ll need to review the case files of recently issued cases to determine whether PTA was reduced by some supplemental filing (such as a late IDS). You may get the time back with a showing that the delay was reasonable. Deadlines in this area are tight. – DC Supernus Pharmaceuticals, Inc. v. Iancu (Fed. Cir. 2019) This case involves calculation of patent term adjustmen...
Tags: Law, Uspto, Patent, Fed, Lee, PTO, Federal Circuit, Gilead, PTA, PVP, Sandoz, Iancu Fed, Gilead Scis Inc, Dennis Crouch Supernus, DC Supernus Pharmaceuticals Inc


Supreme Court: Secret Sales are Still Prior Art

by Dennis Crouch Helsinn Healthcare v. Teva Pharma USA (Supreme Court 2019) The Supreme Court has affirmed the Federal Circuit’s interpretation of the “on sale bar” — holding that “Congress did not alter the meaning of ‘on sale’ when it enacted the AIA.” The particular focus here was whether “secret” sales continue to qualify as prior art under the revised Section 102.  Here, the court says yes — “an inventor’s sale of an invention to a third party who is obligated to keep the invention confiden...
Tags: Supreme Court, Law, Congress, AIA, Patent, Woodland Trust, Federal Circuit, Dennis Crouch, Special Devices Inc, OEA Inc, Helsinn Healthcare, Flowertree Nursery Inc



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