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If the patent owner wants to gather and present additional evidence, it must ask the PTAB for permission, which is rarely granted. Second, the parties generally cannot present live witnesses to testify before the panel of administrative judges at the PTAB. In court, a judge or jury has the opportunity to observe and consider exchanges between witnesses and lawyers.
Watching and listening to these live exchanges creates an opportunity to assess the expertise, credibility, and bias of each witness. By contrast, the PTAB requires that witness testimony be submitted only as a written document. Moreover, this testimony is generally submitted only in a written transcript. Thus the administrative judges read the dialogue in an arid form on the written page; the witness is not presented live at the hearing.
Only in rare and limited cases do PTAB administrative judges watch a deposition video or permit cross-examination of a witness in its presence — typically where one party has directly challenged with some basis the credibility of a witness. The routine practice at the PTAB is to assess all witnesses based solely on the written page.
In theory, the rules that govern how evidence is submitted and heard in court apply with equal force to the PTAB. As is often the case, though, theory does not match reality. Given the severe time constraints on PTAB administrative judges in deciding a case, the parties are much more limited in how they can submit evidence and when evidence is properly excluded.
In fact, PTAB administrative judges regularly deny almost every motion to exclude evidence. In other words, the benefit of reduced costs comes with a heavy cost. The PTAB applies a different standard than the courts apply when interpreting patents. This is a highly technical legal issue, but in sum the PTAB standard makes it much easier to invalidate patents. This one rule by itself is likely the single most important rule at the PTAB — it explains the high invalidation rate and it calls into question whether this agency respects the basic protections of the rule of law provided under the Constitution for all property owners.
The key issue is that in any dispute involving a legal document — whether a contract, the title deed to a house, or a patent — the judge must first interpret the document itself. The parties usually interpret the words in the document differently, and these interpretations usually lead to different outcomes. Thus, for centuries, courts have developed and applied legal rules governing how documents are to be interpreted.
All parties, on either side of a dispute, must know beforehand how a legal authority will interpret documents and allocate rights. The ability to hold legal decision-makers accountable to stable principles is a basic feature of the rule of law. For patents, there are two different points in the life cycle when official interpretation must occur.
The first is during the patent application process. At this point, the examiner interprets the boundaries of a patent as broadly as is reasonably possible. In other words, the language in the patent application is given the broadest interpretation that can be reasonably supported by the evidence.
The result is assessed in light of prior patents, scientific publications, and other prior art. The broader the language of an application, the more broadly the patent will sweep if the examiner allows the patent — and the more likely it will be that the invention as described in the patent application will run up against something already known to people in the field and thus fail the novelty requirement or one of the other legal requirements for obtaining a patent.
Thus, by assuming the broadest potential patent scope, within reason, and evaluating that against the requirements for patentability, patent examiners systematically protect the public from overbroad patents being issued to inventors.
As a result, applicants rarely expect that their initially proposed patent language will actually survive examination. They continually narrow and revise that language in response to examiner actions, until both the examiner and the applicant converge on patent language that acceptably describes a patentable invention. The second point when official interpretation of a patent occurs is during enforcement in the courts.
At this stage, when a patent owner accuses someone of infringement, the purpose of interpreting the patent is not to invalidate it. Rather, the purpose of interpretation is to confirm if the allegedly infringing product or service in fact is covered by the patent. For nearly two centuries, courts have respected the rigor of the application process by presuming that an issued patent is valid.
It is telling that the PTAB chose to adopt not the standard that courts have long used for patents issued by the USPTO, but instead the standard that examiners use when evaluating a patent application. By reverting to the broadest reasonable interpretation for already-issued patents, the PTAB completely discounts the examination process administered by its own colleagues within the same agency.
This disregard poses serious concerns about lack of due process and equal protection of basic property rights. There is a concern that the same patent presented with the same invalidity challenge with the same evidence is subjected to different legal rules depending on whether it is a court or the PTAB. Predictably, as a result of these different legal standards, there have already been conflicts between court judgments and PTAB decisions concerning the validity or invalidity of the exact same patent as discussed in the next section.
But aside from these more fundamental concerns, there are still concerns even within the domain of patent law itself. If the PTAB is essentially repeating the original examination process, however, then patent owners should at least receive the same rights that patent applicants have in the examination process as described in the previous section. But these basic rights are denied.
A patent applicant may amend its application in response to the stress testing of the broadest reasonable interpretation, which allows the applicant and examiner to reach mutually acceptable language in the patent claiming the invention.
For patent owners subjected to a PTAB review process, however, the right to amend is heavily restricted. Notably, the AIA expressly provides that patent owners have the right to amend their patents during the PTAB process, but only once and it leaves subsequent requests for amendment to the discretion of the PTAB. Despite the limited right of a right to amend provided in the AIA statute, the PTAB has been quite hostile toward all requests to amend patents by patent owners.
In sum, PTAB administrative judges broadly construe issued patents in the same way that an examiner would interpret a patent application, making it much easier to invalidate the patent in light of pre-existing technology. When patent examiners broadly construe patent application language during the examination process, this is merely a first step in forcing the applicant to rewrite the patent application, so that the scope is narrowed to elements that are in fact patentable.
In contrast, the PTAB routinely prohibits amendments, which means it routinely invalidates patent rights that could be revised and preserved by accommodating new information. This explains the inordinately high invalidation rates at the PTAB in comparison with federal courts — which have long interpreted patents under the same rules that apply to all legal documents securing secure private rights of contract or property. In fact, it is not, as the next Part discusses.
These [PTAB] rules are fundamentally different from the rules that would be used by a federal court if a defendant made similar arguments that the patent right was invalid. Like most developments in the administrative state, the creation and implementation of the PTAB has gone unnoticed by most members of the public. Although the PTAB has become a flashpoint of heated policy debate among lawyers, representatives from the innovation industries, and scholars, most people living and working outside the patent system remain unaware of the legal battles over the PTAB and its impact on American innovation.
Ignoring the threat that the PTAB poses will only ensure that it continues to sink more and more patented innovation, killing economic growth and jobs, and undermining quality of life through reduced incentives to create more innovation. The PTAB will have this devastating impact for three reasons.
Second, the post-issuance review proceedings provide multiple ways for competitors and others to harass patent owners. Third, the PTAB creates extensive uncertainty surrounding patent rights. Rather than attempting to address the underlying problem — for example, by providing better training to patent examiners, by providing more tools to allow for more rigorous screening of patent applications, or by ensuring that the USPTO has sufficient funding — Congress created a new bureaucracy the PTAB to undo the work of a bureaucracy deemed problematic the patent examiners.
This is an example of waste and inefficiency in government. The authority to grant patents is one of the basic governmental functions enumerated in the Constitution. It employs nearly 12, employees, including 10, patent examiners. Patent examiners have backgrounds in science and engineering and are well compensated.
With this training and experience, patent examiners review patent applications to ensure that the applications comply with the patent laws and USPTO regulations before any patent issues for the invention. The examiner first reads the patent application to ensure that it discloses the actual invention claimed by the inventor and teaches someone with relevant skills how to make and use the invention.
The patent examiner next compares the claimed invention to prior art — like earlier patents or magazine and journal articles — to determine whether the invention is new and more than simply an obvious improvement over what had already been done. The USPTO imposes many other technical requirements on patent applications, which are set forth in the Manual of Patent Examining Procedure, a massive publication containing over 29 sections, each with hundreds of subsections, spanning thousands of pages.
After reviewing the patent application, the patent examiner may grant the patent or, as is most often the case, require more information from the inventor. The inventor responds to the office action. There may be several rounds back and forth between the inventor and the patent examiner over several years. In the end, the process of obtaining a patent is expensive and time-consuming.
Some have pointed out the massive backlog of patent applications waiting for examination, which can mean that an inventor hears nothing for as many as 18 months after filing its application. Any organization the size of the USPTO by necessity will have its inherent set of problems and inefficiencies. No institution, public or private, is devoid of any mistakes, flaws, or inefficiencies.
We all agree, however, that creating a second bureaucracy to undo the allegedly flawed work of the first bureaucracy is fraught with the same risks of waste and inefficiency — because it does little to fix the underlying root cause of the problem and because it may create its own set of problems. Rather than fixing problems with the patent examining corps, Congress created a second group of people within the same agency to undo their work.
Now there is a large patent examination staff to issue patents and a separate PTAB staff to destroy those patents. What an odd, and inefficient, system. The PTAB creates another layer of inefficiency. Moreover, nothing prevents someone — or multiple parties many acting in a coordinated attack — from subjecting a patent owner to the time, expense, and cost of multiple, serial petitions and proceedings at the PTAB. Patents that are economically valuable and will be enforced must go through multiple redundant layers of review.
Finally, there are reasons to be concerned that bias has been built into the decision whether to institute review. The PTAB exists to review reviewing previously granted patents, and the positions and salaries of the administrative patent judges are justified only to the extent they grant petitions for these reviews. A predisposition to grant petitions creates the impression the legislation was warranted, and consistently denying the petitions would surely result in calls for abolishment of the Board.
It is hard to avoid the conclusion that all other things equal a panel of judges would incline to grant review, and the high grant rate of petitions — the PTAB grants 2. Moreover, the fee structure has the potential to distort decisions because the amount paid to the USPTO depends on the outcome of the decision. Nevertheless, in almost any other area of the law, an indirect financial interest in the outcome of a decision of this sort would be viewed as a conflict of interest. The PTAB review system provides third parties with several ways to harass patent owners, creating a hostile environment for innovation.
These mechanisms, as described below, are made possible in part by the fact that any individual or company can ask the PTAB to invalidate a patent at any time and for any reason, even if that party has no actual interest in the patent or the underlying invention. Some research shows that nearly a third of IPR petitions challenging a patent as invalid come from parties who have not been sued for infringing it.
We will describe three types of harassment, but these are not the only means of doing so. These duplicative challenges are prevalent and include either multiple parties attacking the same patent or multiple challenges brought by the same party. These duplicative challenges impose immense burdens on patent owners and on the PTAB itself. Recent research reveals both types of duplicative challenges within the PTAB: 1 multiple parties attacking the same patent and 2 multiple challenges brought by the same party.
For inventions in the chemical, electrical, and computers and communication fields, for instance, most of the patents subject to petitions for review at the PTAB are in fact challenged multiple times again and again in filing after filing. One recent study illustrated this by comparing the share of petitioners who were previously sued for patent infringement with the share of petitions with at least one petitioner who had been sued on the patent.
For patents related to drugs and medical technology, for instance, Multiple challenges have real costs. When a company must spend financial resources to repeatedly defend the same patent again and again, it cannot invest those resources in additional innovation, recruitment of talent, or operational expansion, among other things. Patent No. Microsoft and Biscotti were in negotiations from through The Microsoft story also illustrates how PTAB filings can duplicate ongoing federal court litigation as well.
Accused infringers who are already sued for patent infringement in federal court can escape into PTAB review, with its more lenient standards as detailed in the prior section , In so doing, they delay these court proceedings and impose additional legal and commercial costs on the patent owners, including ongoing costs from infringement. These PTAB petitions are generally filed quite late in the judicial process, after significant investment of judicial resources.
Although Congress attempted to discourage this behavior by imposing time limits for filing and forbidding relitigation of issues already decided by the courts, the PTAB has interpreted these legal constraints quite loosely, making these legal rules a very weak protection against harassment.
The dispute between Wi-Fi One and Broadcom illustrates this problem of weakened legal protections against strategic abuse of the PTAB by defendants sued for patent infringement. This case has a long and complicated history, but it has its roots in ongoing litigation between Ericsson and several computer device manufacturers, such as Dell, Toshiba, Intel, and D-Link Systems, among others.
After that, the petition is time barred. Wi-Fi One wanted to be able to conduct discovery of Broadcom to determine its relationship with the litigation defendants. Rather, it lost solely on the basis of a procedural technicality: a prior ruling by the Federal Circuit concluded that a court will not review questions about whether the PTAB properly instituted an inter partes review. The problem of harassment of patent owners in the PTAB by defendants sued for patent infringement is particularly hard-felt by individual inventors — the innovators working in their garages, like Steve Jobs and Steve Wozniak in the s when they started Apple Computer.
Josh applied for and received a patent in With his patent, he ran a successful crowd-funding campaign on Kickstarter to start his business. With his startup funding, he went national, and he ultimately licensed a manufacturing company, ZURU, to make and sell his invention. It has been a smash success, and his invention has been featured on the Today Show and Good Morning America.
Like all innovators, Malone did not take lightly the infringement of his property rights, and he sued TeleBrands in court. The judge issued a preliminary injunction against TeleBrands, prohibiting it from selling its knock-off product. Another tactic used by some companies in abusing the PTAB to harass patent owners is in filing of a PTAB petition by a defendant in a previously filed patent infringement lawsuit solely for the purpose to extract a quick settlement in the lawsuit, regardless of the merits of the actual PTAB challenge.
This strategy works because there are no legal risks for a company filing a petition, but the risks for the patent owner are very high. The petitioner faces no legal consequences whatsoever — if it loses, it only loses the relatively low cost of filing the petition and potentially of the hearing before the tribunal itself.
By way of contrast, the risk to the patent owner is enormous: its patents can be invalidated and thereby destroying the property rights it is using in licensing or manufacturing in the marketplace. Thus, as recently confirmed by an empirical study, the PTAB has quickly become a tool used defendants in seeking leverage against patent owners who sue them for infringement. Settlements at the PTAB and elsewhere are typically not public records, and so we must often infer the existence and terms of a settlement.
Professor Dolin has detailed examples in which this has occurred for patent owners working throughout the innovation economy. Finally, companies and organizations may use the PTAB in order to manipulate the market and reap huge financial rewards — imposing unjustified costs on patent owners, who are simply collateral damage in their profit schemes. Using PTAB petitions to profit in the financial markets works because investors pay close attention to patent disputes.
A court decision about patent validity or infringement can shift the stock price of a winning or losing firm even more than the initial grant of a patent can. Bass, on behalf of his partners and investors, also often short sells the stocks of the company he is targeting at the PTAB. These types of losses have real consequences for companies and ultimately for the public; in the pharmaceutical sector, it means lost jobs and reduced spending on the research and development necessary to create new drugs.
We take no position on the merits of short-selling as an investment strategy other than it is legal, and regulated. New Bay Capital is a hedge fund, not a company working in the innovation industry. The PTAB granted these petitions and instituted proceedings to review the patents despite pleas by VirnetX that Mangrove Partners Master Fund sought only to profit in the stock market from the impact of the petition.
A month after the petitions were filed, when any movement in the stock price caused by the challenge would have subsided, Mangrove no longer held a short position. When patent owners send demand letters that misrepresent their motives in asserting that someone is infringing a patent, they have been rightly sanctioned by the Federal Trade Commission. Even more detrimental than the specific harmful practices and decisions at the PTAB described above, the total effect of these problems is harming innovation by creating substantial uncertainty about patent rights.
Oddly enough, this conflicts directly with the rationale for creating the PTAB in the first place. Congress intended to improve the patent system when it enacted the AIA. In theory, the creation of post-issuance review proceedings could have fostered a higher level of certainty and confidence in the patent system.
This in turn could have had a net positive effect on innovation. The uncertainty in patent rights generated by the PTAB diminishes incentives for the individuals and companies working in the innovation economy, as it creates an additional layer of bureaucracy to navigate when these patent owners seek to commercialize or protect their inventions. Innovation is itself built on layers of technological and commercial uncertainty.
The research and development process is typically a winding path, filled with many false starts, dead ends, and failures, before the inventor finally reaches a workable invention. The entire process, from invention to securing property rights in the invention with a patent to development and launch of a product, requires extensive resources — both human capital and money.
It also can take a long time. For example, human resources must be spent during the initial conceptualization of the invention. Resources must be spent sorting through ideas and deciding which concepts warrant additional consideration. In research and development, an inventor may invest significant resources creating prototypes, designing market tests, and identifying viable go-to-market strategies.
And yet, despite all of this investment, the result may still be — perhaps early on, perhaps much later in the process — that the invention is a flop. For every invention that is successful, there are hundreds, if not thousands, of ideas that will not be developed or that end in failure.
Uncertainty has increased, for at least three reasons. First, the basic approach of the PTAB adds uncertainty. Basically, Congress created a new administrative tribunal to review the errors committed by another administrative agency. Moreover, as explained earlier, the PTAB often invalidates the patent because its primary mission is to correct mistakes and to cancel bad patents. It is not surprising that a system designed in this matter would sow uncertainty with inventors and the innovation community.
Second, the fact that patents are subject to multiple challenges serially filed one after the other leads to even greater uncertainty. The PTAB has been touted for its low cost and ease of use compared to federal courts. This is a double-edged sword. On the one hand, it attracts petitioners and thus has made the PTAB very popular — it is now one of the busiest institutions at which to litigate over patent rights.
As described earlier, the statistics confirm that innovators are now subject to PTAB challenges from multiple parties at the same time or in rapid-fire sequence. Moreover, the more successful the patented innovation is in the marketplace, the more likely the patent will be the subject of PTAB challenges.
While Congress intended the PTAB to weed out bad patents, thereby raising confidence in the patents that remain, the invalidation of so many patents by the PTAB has had the opposite effect. It could almost lead one to believe that no issued patent is of high quality. A closely related concern is the inconsistency in results when the same patent is reviewed for its validity by both the PTAB and the federal courts. The Federal Circuit recently upheld a PTAB decision to invalidate a patent, despite a federal court and the Federal Circuit itself both having had reviewed and upheld previously the validity of that same patent.
From all of this, it is easy to understand why patent owners working in the innovation economy, such as individual inventors, universities, startups, and others, report that they have little certainty in their property rights. Venture capitalists and other commercial entities also now widely report that patents no longer provide stable and effective property rights on which to base their investment decisions.
Extensive legal uncertainty is never a good thing. Adding extensive legal uncertainty to the patent system is disastrous, and the market has borne this out: The value of patents has plummeted since the enactment of the AIA. Some estimate the losses simply from the threat of invalidation — the price of uncertainty — as equaling or exceeding a trillion dollars. Given the problems identified earlier, the following is a list of possible reforms that could be adopted either by new legislation enacted by Congress or by regulation at the PTO.
This list is not intended to be complete or exclusive of other potential solutions. Rather, it is intended simply as a suggestion for how to move forward in addressing the overall problem of regulatory overreach detailed in this white paper. Property rights provide the foundation for a flourishing free market and successful innovation economy because they provide a stable and effective platform from which individuals can create, use and trade the fruits of their productive labors.
Today, patents are anything but stable. The uncertainty created by the PTAB will change investment decisions in this country going forward. Americans are an inventive people, not because of any unique DNA but because of a culture of innovation supported by a robust patent regime. Reduce the incentives for innovation, and plainly there will be less of it. Because our competitive edge in the world economy emanates not from low labor rates but from U.
Abraham Lincoln, the only President who received a patent for his invention in of a method of raising ships over shoals, said that the U. Innovation Leadership , GEO. Graham, et al. Health Econ. Apple was investing in, creating, and addressing problems in manufacturing, as well as in the supply and distribution chains, all the way up until the June 29, release of the iPhone to consumers.
See, e. Noven Pharm. Baldwin and Lisa M. This study also showed the board denied or partially denied almost 80 percent of these motions. The presumption of validity was adopted by courts long before adoption of the examination system for patent applications in Courts applied the same rules for interpreting patents as they had applied to title deeds defining other property rights, which meant they interpreted patents liberally in favor of their owners given that they are property rights.
See Mossoff, Who Cares , supra note 18 at — Sandoz, Inc. As of April 30, , the Board had instituted and completed trials either through post-institution termination due to settlement, request for adverse judgment, dismissal, or in a final written decision.
In completed trials, the patent owner had filed a motion to amend. The panel decided the motion to amend in of the completed trials. In the others, the motion to amend: a was requested to cancel claims, b was rendered moot because the panel found the claims patentable, or c was not decided because the case terminated prior to a final written decision.
Mason L. Evidence from the U. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Post, Aug.
See also Greg Dolin, supra note 2 at describing extensive and recurring complaints about low-quality patents from early nineteenth century through mid-twentieth century. See Intell. See 35 U. The PTAB allows accused infringers to turn the table and invalidate their patents at a lower cost than full blown district court litigation.
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Wilder, 51 U. Nor does it appear that transfer to the appropriate federal court of appeals, in this case, the United States Court of Appeals for the Fifth Circuit, would be in the interest of justice. It appears that Mr. Motors Corp. The questions enumerated below are a preliminary guide to aid the USPTO in collecting relevant information to assist in modifications, if any, to its current practices, and in the development of any possible rulemaking on this subject.
The questions should not be taken as an indication that the USPTO has taken a position or is predisposed to any particular views. The USPTO welcomes comments from the public on any issues believed to be relevant to these topics, and is particularly interested in answers to the following questions:. Alternatively, in deciding whether to institute a petition, should the Office a altogether disregard whether the claims have previously been challenged in another petition, or b altogether decline to institute if the claims have previously been challenged in another petition?
Should the Office promulgate a rule with a case-specific analysis, such as generally outlined in the Consolidated Trial Practice Guide, for deciding whether to institute more than one petition filed at or about the same time on the same patent?
Alternatively, in deciding whether to institute more than one petition filed at or about the same time on the same patent, should the Office a altogether disregard the number of petitions filed, or b altogether decline to institute on more than one petition? Alternatively, in deciding whether to institute a petition on a patent that is or has been subject to other proceedings in district court or the ITC, should the Office a altogether disregard such other proceedings, or b altogether decline to institute if the patent that is or has been subject to such other proceedings, unless the district court or the ITC has indicated that it will stay the action?
Whether or not the Office promulgates rules on these issues, are there any other modifications the Office should make in its approach to serial and parallel AIA petitions, proceedings in other tribunals, or other use of discretion in deciding whether to institute an AIA trial? HP , and taking an appeal from that decision. My patent class is holding its moot-court oral arguments next — it will be online oral appellate arguments based upon SynKloud v.
C R Bard Inc. AngioDynamics, Inc. Question : How does the printed-matter-doctrine apply to letters that can only be read using an X-ray? Answer : It is still printed matter; the limitations are given no patentable weight; and might render the whole claim ineligible. Most IV ports are designed for low-pressure gravity flow.
More than Skin Deep : The problem with labelling is that the ports are under the skin , and so are not susceptible to a written label. Claim 8 of US In essence, Bard wants to be the only company that sells ports with the CT radiographic marker. In , Bard sued AngioDynamics for infringement and the case went to trial before a jury.
But, the jury never got to deliberate. After Bard presented its case-in-chief the court terminated the trial and granted JMOL directed verdict for the defendant — finding particularly: no infringement, no willful infringement, and that the claims are invalid as directed ineligible subject matter printed matter and also not inventive.
The district court explained:. Fundamentally, after listening to the evidence presented to the jury and considering the evidence for the previous motions for summary judgment, the Court finds this patent is about labeling, not invention and not technology. Here, the court found that the marker is on the port as a label precisely for the purpose of informing others about the functionality of the product.
Indeed, as early as the s, our predecessor court recognized that the mere marking of products, such as meat and wooden boards, with information concerning the product, does not create a functional relationship between the printed information and the substrate. See In re McKee, 75 F. Printed Matter and Eligibility : So we have claimed printed matter what next? Even if the prior art asserted by AngioDynamics demonstrated that it would have been obvious to combine radiographic marking with the other claim elements, that evidence does not establish that radiographic marking was routine and conventional under Alice step two.
The district court gave neither patentable weight. On appeal the court also vacated on anticipation. On remand there will be a new trial on infringement and validity, apparently including aspects of Alice Step 2. In re Apple Fed. Texas Waco to N. Judge Moore wrote in dissent. Judge Albright is the W. Judge who had refused to transfer the case. The statute:.
Still, the approach is controversial because 1 district courts are given substantial deference regarding their a determinations; and 2 mandamus is such an extraordinary writ. Under the proper standard of review, I believe the only patently erroneous result here is the one reached by the majority.
I dissent from that result. Though the standard of review is not de novo, because the majority has approached the case as though it is, let me add—I agree with the district court and I would have denied transfer de novo. District courts have no discretion to make these kinds of errors. And when such errors accumulate to produce a patently erroneous result, as they have here, we are obliged to act. Majority by Chief Judge Prost. While none of the errors were dispositive, their collective weight was sufficient for the majority to find that the only answer is to order transfer.
In re Volkswagen of Am. In this opinion, the Federal Circuit appears to add additional tricks-and-traps to the analysis. This is the baseline for me. If none of the convenience factors are determinative then there is no clear abuse of discretion or patent travesty of justice. Section a as a Pretext : The obvious background to this case is that Apple believes it will have a better outcome of the case, and with more significant delays, if it is assigned to a judge in the Northern District of California rather than Judge Albright.
The convenience argument is simply a pretext on that front. Finally, we should all note that the convenient-venue analysis is entirely different than the proper-venue analysis that does not provide discretion in any way. Apple agrees that venue is proper in W. There are two potential ways of showing that a reference is analogous. If either prong is met a factual question , then the reference is deemed analogous and available for use in an obviousness argument. I believe a fair reading of KSR further expands the doctrine, but the courts have not gone there.
In the same way that a pretextual police stop opens the door to more invasive searches, the analogous arts test also opens the door to more extensive obviousness analysis. In particular, once the reference is admitted as analogous art, any aspect of the reference including non-analogous aspects can be used.
The image above comes from the patent and shows the patented mounting-board with various controls attached. Rather, that patent is directed to electrical relays, including a support structure for holding a relay and wiring-channel space. On appeal, that judgment was vacated. Thus, that could not possibly be a relevant purpose of the invention. Indeed, with respect to the analogous art inquiry, the relevant purposes of an invention are those relating to solving a problem.
In the end, the court remanded for reconsideration rather than offering a complete reversal:. Accordingly, we leave this factual issue for the Board to resolve on remand. This outcome appears correct since the question of analogous art is a question of fact. Valeant Pharmaceuticals v. Mylan Pharmaceuticals Fed. Prior to TC Heartland , Federal Circuit precedent equated proper venue with personal jurisdiction — finding venue proper in any court that had personal jurisdiction over the defendant.
Note assumption regarding mail efficiency. None of these actions occurred in New Jersey. A plain language reading of this provision directs us to the conclusion that it is the submission of the ANDA, and only the submission, that constitutes an act of infringement in this context.
None persuade us to reach a different conclusion. Quoting the First Amendment, U. Medtronic, Inc. On appeal, the Federal Circuit rejected the future-infringement theory and instead walked through a straight statutory read —. The court considered some of these issues in the personal-jurisdiction context in Zeneca Ltd. Mylan Pharm. Foreign Defendant : Mylan Laboratories Ltd. However, the court went-ahead and dismissed the case against MLL on venue grounds.
On appeal, the Federal Circuit reversed this holding. On appeal, the Federal Circuit punted on that issue and remanded to the district court to determine the issue. By Colleen V. As we wait for a life-saving COVID vaccine, each new day reminds us of the inequalities that the pandemic has laid bare.
Black and brown people, are dying at a much higher rate from Covid due to a complex set of factors, and are at higher risk of lacking access to prescription drugs because of cost. Though only one part of the larger innovation ecosystem, the patent system has an important role to play in advancing inclusive innovation.
Historically, innovation for underrepresented and underresourced groups has been underfunded. The USPTO can use its powers to accelerate innovation to meet the unique needs of underrepresented and underresourced groups, including, as was done in the context of the Cancer Moonshot initiative, identifying relevant patents and applications and combining patent data with external data sources for example from agencies like the National Institutes of Health and Food and Drug Administration. These capacities could be directed to priority equity areas, which are positioned to benefit especially when private and public funding is at stake.
When startups and innovation entrants patent, good outcomes often follow : first-time patenting is associated with investment, hiring, and economic mobility. Empirical studies have also found that inventors with female sounding names, or who are represented by law firms that are less familiar to patent examiners are less likely to get patents on their applications than their counterparts.
The difference in allowance rates may be due to any of a variety of factors, for example, a higher abandonment rate or differences in the types of patents sought. One solution may be to try to improve the quality of underlying applications. As previously documented using PTO office action data, the applications of discounted entities are much more likely to have rejections, and in particular b rejections.
A promising approach as discussed previously by one of us would be to democratize access to drafting tools and aids, which are often used by sophisticated applicants to, for example, check the correspondence between claim terms and the specification. Using error correction technology to level the playing field in government filings, through public and private action, is precedented. To sit for the patent bar generally requires a science, technology, or engineering degree.
But because of their underrepresentation among STEM, engineering, and computer science graduates, women, Black and Hispanic people are disproportionately excluded from participation. The technical degree requirement particularly disadvantages those with design experience but not engineering degrees, who are often women, and who might otherwise want to prosecute design patents over fashion or industrial design, Christopher Buccafusco and Jeanne Curtis have noted.
Relaxing the technical degree requirement would enable diversification of the patent bar, in support of diversifying inventorship and entrepreneurship. This report has prompted conferences and toolkits , and spurred companies to revisit their patent programs and pipelines. Improved data collection, for example, of race and veteran status data, and federation and coordination with other datasets, for example held by the Small Business Administration, or in connection with the Small Business Innovation Research program, and Census could go a long way.
Doing so would allow for more regular reporting and analysis of the overall health of the innovation ecosystem, which, by a few measures appears to be waning: as described in the paper, patenting by new entrants is down while the concentration of patent holdings is up. Surveys of underrepresented inventors, and what have been enablers and blockers, can also lend inform the development of policies of inclusion.
We encourage readers with concrete ideas about how to advance inclusion in innovation, through the patent or other governmental levers, to submit them to the DayOneProject , which is collecting ideas for action for the next administration. Lisa Cook , a leading economist see, e. The authors represent that they are not being paid to take a position in this post nor do they have any conflicts of interest in the subject matter discussed in this pos t.
Effectively cyborg technology albeit at a 1-cell-at-a-time level rather than whole organism. Patent No. The jury was particularly asked about whether the element was satisfied under the doctrine of equivalents, and said yes, it was DOE infringement. The appropriate inquiry is whether a reasonable juror could have found that a negligibly-fluorinated microchannel performs the same function, in the same way, and achieves the same result, as a non-fluorinated microchannel. Here, based on the evidence presented at trial … the district court concluded that a reasonable juror could find that a 0.
Damages 1 vs 3 : The jury found infringement of three separate patents. However, on appeal the Federal Circuit reversed claim-construction for two of the patents and thus vacated the infringement judgment. The Supreme Court granted certiorari on the following question: Whether a person who is authorized to access information on a computer for certain purposes violates Section a 2 of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.
Claim 1: A composite comprising [a] at least one first ply of fiber-reinforced aerogel material adjacent to [b] at least one second ply of fiber-containing material, wherein fibers from the at least one first ply of fiber-reinforced aerogel material are interlaced with fibers from the at least one second ply of fiber-containing material.
Patent App. Japanese Patent No. Rejection affirmed. Guth v. SimpleAir, Inc. Google LLC , F. Jude Med. Access Closure, Inc. Egbert v. Lippmann , U. Teller v. Teller , 53 P. Later, in the infringement lawsuit, jury found the claims invalid. Judge Schroeder E. Then on appeal, the Federal Circuit vacated JMOL but did not expressly reinstate the jury verdict — seemingly leaving that for Judge Schroeder to decide what to do.