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Missing Decisions and the Federal Circuit

By Jason Rantanen Last week the Federal Circuit issued two interesting orders in appeals from the USPTO.   In the first, In re Zhu (Appeal No. 2021-1761), Sept. 13, 2021, the Federal Circuit vacated the decision of the PTAB and remanded the case to the PTO “for reconsideration of whether the claims are directed to an improvement in computer functionality, especially in light of this court’s recent case law.”  (internal quotations and brackets removed).  The context of this, according to Timothy ...
Tags: Supreme Court, Law, United States, Lg, Patent, Bolero, PTO, Westlaw, Federal Circuit, Zhu, McAlister, Arthrex Inc, PTAB, Jason Rantanen, Uniloc, Federal Circuit What


Pride in Patent Ownership Act

by Dennis Crouch A bipartisan pair of Senators have proposed the “Pride in Patent Ownership Act.”  The premise is that if you own a patent, you should be proud to own the patent — and actually record your ownership interest.  The bill pushes this pride by requiring patent owners to record their ownership with the kicker that those who fail to record lose their right to punitive damages for any infringement that occurs prior to recordation. If a patentee fails to comply … no party may recover, fo...
Tags: Law, Congress, Ibm, Leahy, Patent, Charlotte, Tillis, Dennis Crouch, Sen Tillis, Southeast Regional Office, Wang Labs PWC


Small Changes to Tech-Background Requirement to become a Patent Attorney

by Dennis Crouch All of us who represent clients in patent cases before the USPTO share a common background.  We all have a background in science or technology and we have all passed the registration exam (and paid the accompanying fees). The USPTO offers three ways to show sufficient background in science or technology: Category A: A university degree in science or engineering; Category B: Sufficient university coursework in science or engineering; or Category C: Sufficient practical experienc...
Tags: Law, Uspto, Patent, PTO, Dennis Crouch All


Patent Law at the Supreme Court September 2021

by Dennis Crouch So far, the Supreme Court has not granted certiorari in any patent cases for its 2021-2022 Term.  Still, there are a couple dozen cases pending that may offers some interest.  On September 27, 2021, the court is meeting privately for what is known as the “long conference” to decide the fate of the petitions for writ of certiorari that have piled-up over the summer.  There are also a host of additional petitions scheduled for a later conference or not yet scheduled.  Although th...
Tags: Supreme Court, Law, Court, New Jersey, Uspto, Patent, Apple Inc, Kessler, Fed, The Supreme Court, Biogen, Federal Circuit, Samsung Electronics America Inc, Cisco Systems Inc, Hu, IPR


Most Common Design Patents 1842-2021

by Dennis Crouch document.createElement('video'); https://patentlyo.com/media/2021/09/TopDesignPats.mp4 This is a remake of a video I made a few weeks ago. This time, I was able to go back to the 1840s and show the most-common design patent titles from each era.  To make the chart, I used a 14 year rolling average.  Thus, for example, the top-10 list shown for 2000 is actually the top-10 based upon the period 1987-2000.  The bulk of the data also comes via OCR of images and so there ar...
Tags: Law, Patent, OCR, Dennis Crouch


Design Patent Term: 3½, 7, 14, and now 15 years?

New design patents have a term of 15 years from patent issuance — that is a 1 year bump from the 14 year term familiar to many patent attorneys.  The straight 14-year term took hold in 1982.  In the years leading up to 1982, most design patents also had a 14 year term, but applicants had the option of instead obtaining a term of 7 years or 3½ years at a lower fee.  In 1980, all design patents had an application fee of $20, and the issuance fee was $10, $20, or $30, depending upon whether the app...
Tags: Law, Patent, OCR


AIA 10 year Survey Results

by Dennis Crouch The patent system has seen tremendous change over the past decade.  A large part of the transformation stemmed from the Leahy-Smith America Invents Act of 2011 that was enacted ten years ago in September 2011.  Earlier this week, I conducted a quick survey of Patently-O readers asking for their thoughts on the impact of the AIA, which has repeatedly been heralded as the largest change to the U.S. patent system since the Patent Act of 1952.  We have about 600 responses. Most of ...
Tags: Law, AIA, Patent, Patent Office, Dennis Crouch, PGR, Leahy Smith America, Inter Partes Review IPR, Eligibility Decisions


Op Ed: Reflections on the American Invents Act on its Tenth Year Anniversary 

by Hon. Michelle Lee.  Lee is vice president at  Amazon Web Services and was the Undersecretary of Commerce and Director of the United States Patent and Trademark Office (2015-2017).  She spent a decade at Google leading their patent team.   The America Invents Act (AIA), which passed on September 16, 2011, brought about some of the most significant changes to our patent system in over 50 years.  The Act included an assortment of reforms from a transition to first inventor to file in the Unite...
Tags: Google, Law, Congress, United States, Commerce, Uspto, AIA, Patent, Amazon Web Services, Agency, Lee, Phillips, United States Patent and Trademark Office, David Kappos, Iancu, Patent and Trademark Office USPTO


AIA – 10 Year Anniversary

Sept 16, 2021 is the 10 year anniversary of enactment of the Leahy-Smith America Invents Act of 2011.  I’ve got a quick anonymous survey below (5 minutes) on the impact. * My general policy on anonymous comments and anonymous survey responses is that I endeavor to avoid any disclosure of personally identifiable information to third parties absent court order (which has never happened). Link to Survey: https://missouri.qualtrics.com/jfe/form/SV_0qSs6aKqNZSZj2S Or complete the survey below:
Tags: Law, AIA, Patent


Use of Method Claims

You may have head about the U.S. as a service-based economy. Does that help explain why most patents are now directed toward methods rather than products? pic.twitter.com/QNFfCA075k — Dennis Crouch (@patentlyo) September 14, 2021
Tags: Law, Patent, Dennis Crouch


Guest Post by Prof. Contreras: HTC v. Ericsson – Ladies and Gentlemen, The Fifth Circuit Doesn’t Know What FRAND Means Either

Guest Post by Prof. Jorge Contreras of the University of Utah S.J. Quinney School of Law.  Disclosure statement: in 2019, the author served as an expert for HTC in an unrelated, non-U.S. case. In August 31, 2021, the Court of Appeals for the Fifth Circuit ruled in HTC Corp. v. Telefonaktiebolaget LM Ericsson, 2021 U.S. App. LEXIS 26250, __ F.4th __ (Fed. Cir. 2021), affirming the judgment of the District Court for the Eastern District of Texas, 2019 U.S. Dist. LEXIS 170087 (E.D. Tex. 2019).  Th...
Tags: Apple, Google, Motorola, Texas, Microsoft, Law, France, Taiwan, United States, Cambridge, Wisconsin, Htc, Huawei, Patent, Ericsson, Usc


A Million Inventions Lost: Abandoned Provisional Applications

by Dennis Crouch US provisional patent applications continue to be popular, with about 170,000 filed each year since 2013.  After filing a provisional, the applicant then has one-year to move the case to a non-provisional or PCT application, and eventually toward patent issuance. If the applicant does not follow-up with these next steps, the provisional application is abandoned, and the file kept secret. About 40% are abandoned — and that adds up to 1.4 million application files lost to the publ...
Tags: Law, US, Patent, Dennis Crouch


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Janhavi Mohite: Stealth BioTherapeutics Strengthens IP Portfolio with Issuance of U.S. Patents Covering Elamipretide for Barth Syndrome (Source: Yahoo Finance) Jonathan M Block: Arbutus rises 15% on Apparent Patent Fight Win with Moderna (Source: Seeking Alpha) Samantha Handler: Patent Office ‘in Neutral’ as It Awaits Biden’s Pick to Lead It (Source: Bloomberg Law) Fred Lambert: Tesla Obtains Patent on its Wild Idea to Use Lasers as Windshield Wipers (Source...
Tags: Law, Biden, Patent, Joe Miller, Joel Miller, MWe, Richard Wang, Bits and Bytes, Juvan Bonni, Daly Crowley Mofford Durkee, Yahoo Finance Jonathan, Samantha Handler, Bloomberg Law Fred Lambert, Elecktrek Commentary and Journal Articles, Eva Yin, JD Supra Atty Krishnam Goyal


Most Popular Design Patent Articles of Manufacture

This moving chart shows the most popular "article of manufacture" claims in US Design Patents since the 1970s. pic.twitter.com/Wcy5c1ITAq — Dennis Crouch (@patentlyo) September 11, 2021  
Tags: Law, US, Patent, Dennis Crouch


Federal Circuit Approves of Order to Drop Patents from the Lawsuit to Facilitate Case Management

by Dennis Crouch In re Midwest Athletics and Sports Alliance LLC (Fed. Cir. 2021) MASA sued Xerox for infringing 20 different patents that all relate to printer related technology.   The district court felt that 20 patents was too many to handle and so ordered MASA to reduce the number of asserted patents to 8 patents by the summary judgment pre-trial stage; and then further drop down to only 4 asserted patents by trial.  The defendant agreed that the eliminated patents would be dismissed withou...
Tags: Law, Court, Xerox, Patent, Federal Circuit, Masa, Dennis Crouch, Federal Circuit Approves of Order, Midwest Athletics and Sports Alliance LLC Fed


Post-IPR Estoppel: Printed Publication vs. Actual Product Shown in the Publication

In re DMF, Inc. (Fed. Cir. 2021) The court has denied DMF’s mandamus petition on an interesting post-IPR estoppel question. DMF sued ELCO Lighting in 2018 for infringing DMF’s U.S. Patent No. 9,964,266.  As is usual these days, ELCO turned-around and filed an inter partes review petition — challenging the patent’s validity based upon a 2011 product catalog (printed publication) that had featured the Hatteras lighting product.  Although the PTAB instituted the IPR, it eventually sided with the pa...
Tags: Law, Patent, Federal Circuit, IPR, PTAB, Elco, DMF Inc Fed


Data on Transition Phrases in Patent Cases

by Dennis Crouch You may have heard that most US utility patent claims use the open transition phrase COMPRISING.  Here’s the data to support that hearsay. The chart below shows data from independent claims gleaned from issued US patens grouped by patent issue year. To make the chart, I calculated the percentage of independent claims that include the phrase comprising or comprises or comprise as the first traditional (or only) transitional phrase within the claim text. Patent courses traditional...
Tags: Law, US, Patent, Dennis Crouch You


Arbitration Agreement Does Not Control Inter Partes Review Proceedings

by Dennis Crouch The Supreme Court has strongly supported arbitration as an alternative dispute resolution mechanism.  The Federal Arbitration Act (FAA) codifies this “liberal federal policy favoring arbitration agreements.”  Quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983).  Although the right to arbitrate patent cases is seemingly clear from the FAA, Congress went further in its 1982 PTO appropriations bill to expressly codify the enforcement of arbitration agr...
Tags: Law, Congress, Uspto, Faa, Patent, Apple Inc, Fed, The Supreme Court, O'Malley, PTO, Reyna, ROHM, Federal Circuit, Patent Trial and Appeal Board, IPR, Hosp


Law School Canons: It’s a Pain to Opine

Editor’s Note: Avery Welker is a 2L at Mizzou and likely a future patent attorney. He authors a series linking law school canonical cases with intellectual property counterparts. You can email ideas for future posts to [email protected]  – Dennis Crouch By Avery Welker My Civil Procedure I outline turned out to be the longest outline of my first law school semester. Personally, I was betting on joinder and class actions to contain the most notes throughout the semester. As it turned out, disc...
Tags: Law, Young, Patent, Fed, Mizzou, Federal Circuit, Dennis Crouch, Airboss, Avery Welker, Pandrol USA LP, Airboss Railway Products Inc, Hartley Young, Airboss Ry Prods Inc, Pandrol Limited, Robert Magnuson, Jose Mediavilla


AI Patenting

E.D. Va. Judge Brinkema sides with USPTO — holding that the Patent Act’s use of the term “individual” is limited to a human person — and thus that only humans can be inventors.  Read the decision here: Thayler v. USPTO AI patent Decision  
Tags: Law, Uspto, Patent, Brinkema, Thayler


Elevate your Patent Prosecution

Cool upcoming event in Salt Lake City. See you there in a few weeks! Sept 24-25, 2021. Elevate your Prosecution
Tags: Law, Salt Lake City, Patent


Marking & Back Damages

by Dennis Crouch Lubby Holdings v. Chung (Fed. Cir. 2021) Lubby’s US9750284 covers a vape-pen (“personal vaporizer”). Lubby sued Henry Chung for patent infringement and won at trial with a jury verdict of almost $1 million. On appeal though the Federal Circuit has reversed-in-part — holding that the pre-suit damages were not available under 35 U.S.C. § 287. In general, the patent laws bar a remedy for any infringement that occurred more than six years prior to the filing of the lawsuit.  “[N]o ...
Tags: Law, Patent, Fed, Chung, Federal Circuit, Henry Chung, J Pen, Dennis Crouch Lubby Holdings, Chung Fed, Lubby, SRI Int ' l Inc, Advanced Tech Labs Inc


Inequitable Conduct in the FDA/PTO Interplay

Belcher Pharma v. Hospira, Inc. (Fed. Cir. 2021) The Federal Circuit has confirmed that Belcher’s U.S. Patent No. 9,283,197 is unenforceable due to inequitable conduct based upon materials withheld during prosecution.  The patent covers l-epinephrine formulations at pH between 2.8 and 3.3 and with certain impurity level limitations. During prosecution, the examiner found a prior art reference with a wider encompasing pH range of 2.2 to 5.0, but the patentee successfully argued that its narrower ...
Tags: Law, Fda, Patent, Fed, Rubin, Federal Circuit, Belcher, Hospira Inc, Hospira Inc Fed, Belcher Pharma, PTO Aventis Pharma S A


Copyrightability of a Programming Language

by Dennis Crouch This is a follow-up post on the pending SAS v. WPL appeal before the Federal Circuit.  The focus of the case is copyrightability of the SAS statistical software and  its outputs.  SAS argues that it made a “plethora of creative choices” in developing its material, and that creativity is more than sufficient to satisfy the originality requirements of copyright law.  Thus far, the courts have disagreed with SAS and rejected its copyright assertions.  However, the company has now p...
Tags: Google, Supreme Court, Law, Wpl, Oracle, Patent, Sas, Electronic Frontier Foundation EFF, Federal Circuit, Pamela Samuelson, Lewis Clark, Dennis Crouch, Intell, CAFC, Computer Communications Industry Association CCIA, GitHub Inc


Still True: Name of the Game is the Claim

Data Engine Techs v. Google (Fed. Cir. 2021) This is an old-school claim construction case.  The district court narrowly construed DET’s claim term “three-dimensional spreadsheet” and consequently ruled that Google does not infringe.  On appeal, the Federal Circuit has affirmed. DET’s invention here is mainly about adding tabs to a spreadsheet to make it “three dimensional.”   In a prior decision, the Federal Circuit found the claims patent-eligible.  “[T]he claim is directed to a specific met...
Tags: Google, Law, Lotus, Patent, Federal Circuit, Google Fed, Data Engine Techs


Full Scope Written Description

by Dennis Crouch The COVID vaccines do not genetically modify your DNA, but Juno’s patented CAR T-Cell therapy certainly does. Sloan Kettering owns U.S. patent No. 7,446,190 and Juno (BMS) is the exclusive licensee.  The patent claims a nucleic acid polymer (DNA/RNA) that encodes for a particular “chimeric T cell receptor.”  The idea here is part of a revolutionary CAR T-Cell therapy that genetically modifies a patient’s own T-Cells so that it will be able to recognize (and thus attack) specific...
Tags: Law, Patent, Juno, Kite, Federal Circuit, ARIAD, Dennis Crouch, Sloan Kettering, Juno Therapeutics, JMOL, Kite Pharma Fed, Sadelain


Alice Corp v. CLS Bank: When Two Become One

by Dennis Crouch The Alice test officially includes two steps. But these are highly correlated steps. Thus, if a claim fails step one, it usually fails step two as well. In this case, the court appears to borrow heavily from typical step two analysis in order to make its step one conclusion: Universal Secure Registry v. Apple and Visa (Fed. Cir. 2021) The district court dismissed USR’s patent infringement complaint, holding of all four asserted patents were ineligible under the abstract idea tes...
Tags: Apple, Law, Patent, Alice, Fed, Federal Circuit, T Mobile USA, IPR, Alice Corp, Elavon Inc, CLS Bank, Prism Technologies LLC, USR, Universal Secure Registry, Secured Mail Solutions LLC, Universal Wilde Inc


The First Offer Should Be Unreasonable – and Other Oddities of Government Contracting

by Dennis Crouch  The Federal Circuit’s new decision in DynCorp v. US (Fed. Cir. 2021) involves a bid-protest regarding a government contract.  The court’s opening offers a brief insight on the complex world of DOD governmental contracts. This bid-protest case arises from a peculiar procurement mechanism. Contracting officers often must discuss deficiencies and significant weaknesses in proposals with offerors before proposals are final. And so when an offeror proposes a price that is unreasona...
Tags: Law, Army, Patent, Dod, US Fed, Federal Circuit, Dennis Crouch, DynCorp, The Court of Federal Claims


Copyrightability of Software: The Next Big Case

by Dennis Crouch The next big software copyright case is before the Federal Circuit in the form of SAS Institute, Inc. v. World Programming Limited, Docket No. 21-1542.  The litigation has substantial parallels to Google v. Oracle, but might end up with a different outcome. In Google, the Supreme Court found fair-use but did not decide the issue of copyrightability. That issue is front-and-center in this case. WPL is a UK based software company who obtained several copies of SAS statistical soft...
Tags: Google, UK, Law, Wpl, North Carolina, Oracle, Patent, Sas, Fifth Circuit, Madlib, Federal Circuit, WPS, Tex, SAS Institute Inc, Dennis Crouch, MathWorks


Future MacBooks could replace this integral component with a touchscreen

Apple's was just granted a patent that may signal the future of MacBooks -- a future without physical keyboards whatsoever.
Tags: Apple, News, Trends, Macbook, Computing, Patent