The U.S. Supreme Court’s Alice decision alleges that “…merely requiring generic computer implementation fails to transform that abstract idea into a patent-eligible invention.” And the Patent Eligibility Restoration Act (PERA) of 2023 alleges that “adding a non-essential reference to a computer by merely stating, ‘do it on a computer’ shall not establish such eligibility.” Clearly, it is assumed that “merely” doing something on a computer or “merely” saying “do it on a computer” is not a desirable thing in the eyes of some; a computer supposedly invalidates the inventive effort and “merely” doing something on a computer is undeserving of even consideration of a patent.
One might think that we had enough crises already without creating a new one, but apparently that’s not the case. To much fanfare, the Biden Administration unveiled its long awaited “guidelines” for agency use of the march in rights provision of the Bayh-Dole Act. Ironically, it started this exercise just as it had joined every other administration in dismissing attempts to misuse the statute as a pretext for the government to micro-manage the price of a successfully commercialized government funded invention.
This week in Other Barks & Bites: the House Subcommittee on Cybersecurity, Information Technology, and Government Innovation holds a hearing on President Biden’s AI policy; the White announces a proposed framework to allow government agencies to seize the patents of costly drugs that received government funding; and the social media company X characterizes a trademark infringement case against it as a “shakedown.”
The Medicines Patent Pool announced today that its current licensing agreement with ViiV Healthcare for a new antiretroviral drug will be extended to all lower middle-income countries.
Continue Reading ...A potential treaty to facilitate international applications for industrial designs for creators is on the agenda of a meeting next week at the World Intellectual Property Organization. Also on the meeting agenda is the protection of country name regist…
Continue Reading ...By Sherri Oslick — About Court Report: Each week we will report briefly on recently filed biotech and pharma cases. Teva Pharmaceuticals USA Inc. et al. v. Biocon Ltd. et al. 1:16-cv-00278; filed April 19, 2015 in the District Court of Delaware • Plaintiffs: Teva Pharmaceuticals USA Inc.; Teva Pharmaceutical Industries Ltd.; Teva Neuroscience Inc; Yeda Research and Development Co Ltd. • Defendants: Biocon Ltd.; Apotex Corp. Infringement of U.S. Patent Nos. 8,232,250 (“Low Frequency Glatiramer AcetateTherapy,” issued July 31, 2012), 8,399,413 (same title, issued March 19, 2013), 8,969,302 (same title, issued on March 3, 2015), and 9,155,776 (same title,…
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TOO MUCH
$$ Amounts up to 1% or 2% by weight may be used, but problems can arise if too much is used, for example, bit formation and decreased transfer eff…
Continue Reading ...米国特許実務者のバイブル Faber on Mechanics of Patent Claim Drafting を弊社で翻訳、再編成したものをご紹介しています。 2-42~2-43ページ §2：9 …
Continue Reading ...The effect of legal provisions in enhancing or inhibiting innovation is often difficult to show. An interesting case where it may be able to
discern such a relationship was discussed in a piece that appeared recently on reuters.com. There, it was argued that German labor laws and rules may materially affect the economic viability of no less than the Mercedes-Benz car company (part of Daimler AG) to continue to maintain its software development capability in Germany, rather than outsourcing such software development activities abroad. That cars are increasingly aggregations of software to move people efficiently, safely and increasingly, enjoyably, is evident to all. As was noted in The Economist, citing Gabriel Seiberth of Accenture, in a piece last year–
“[a] high-end car, for instance, has the digital horsepower of 20 personal computers and generates 25 gigabytes of data per hour of driving ….”
These kind of data mean that software expertise is essential to the success of a Mercedes-Benz car, and that requires that the company engage leading software personnel to help keep its competitive advantage. The question is not whether the company will increase the number of software-related jobs, but how many of these software personnel will be German-based and, more broadly, whether the company can continue to foster such capabilities and know-how within Germany. The claim being made by the company is that local German labor laws are too restrictive in this regard. In particular, it is argued, in the name of the well-being of employees, German labor rules provide that a daily work shift cannot exceed 10 hours and there must be an 11-hour break before the employee’s next shift. Presumably, this requirement derived from a time when most of the skilled labor at the company was engaged in more of the heavy physical aspects of automobile production.
However, such labor rules, and the requirement that labor representatives must be informed about the extent of the company’s use of third-party contractors, make it “cumbersome” for the company to engage third-party software contractors. The claim by the company is that the processes that derive from this requirement “makes life too bureaucratic”. Not by accident, the company has approximately 3,500 R&D and IT staff located in Bangalore, India and another 200 or so in Silicon Valley. Indeed, Bangalore has become the company’s main digital engineering center, engaged in such activities as digital design and crash test simulation.
From the labor relations point of view, the tension rests between the interest in ensuring worker protection, on the one hand, and the need for more flexible work arrangements to meet the requirements of software R&D, on the other. Even taking into account the possibility that company management may be spinning the narrative to some extent to obtain worker concessions, the issue raised seems genuine. To what extent will continuing adherence to traditional models of industrial employment have a deleterious effect on the ability of a standard-bearer of German industry to maintain its competency in software and related 21st century innovation capabilities. Mercedes-Benz will find a way to obtain the necessary software skills; the question is to what extent this will take place within Germany.
The challenge so posed recalls the discussion in America in the wake of the decline of US manufacture. On the one hand, relying on China as the ultimate assembly factory certainly has resulted in less expensive products. On the other hand, some have claimed that this has led to a hollowing-out of the skills needed for the US to preserve a manufacturing presence, especially at the so-called high end. One wonders whether something like that might be over the horizon for companies such as Mercedes-Benz, where the declining presence of cutting-edge software within its German facilities might negatively affect the company’s design and manufacturing capabilities more generally. After all, software is not just another form of IP to be protected, but it is increasingly the foundation of the know-how that will, quite literally, “drive” the automobile industry.
Guest Post by Bruce Wexler and Edwin Mok From a review of the opinions expressed in the majority decision and rehearing denial in Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, reh’g en banc denied, 809 F.3d 1282 (Fed. Cir. 2015), petition for cert. filed (No. 15-1182, Mar. 21, 2016), and in the briefs […]
Continue Reading ...FiercePharma noted of Biogen’s prospects:
India’s Swiss Pharma International has filed a petition for inter partes review of one of Tysabri’s patents–and another two petitions are on the way, Leerink Partners analyst Geoffrey Porges wrote in a note to clients on Monday. The move could potentially put sales of the drug, which tallied $1.89 billion in 2015, in jeopardy, he noted.
link: http://www.fiercepharma.com/pharma/ms-patent-challenges-put-billions-biogen-sales-at-risk
Continue Reading ...The U.S. Patent and Trademark Office will be holding its next biotechnology/chemical/pharmaceutical (BCP) customer partnership meeting on Tuesday, April 26, 2016 at the USPTO Headquarters (Alexandria, VA). The agenda for the meeting is as follows: • Welcoming and Opening Remarks (10:00 – 10:10 am EST) — Mark Powell, Deputy Commissioner, International Patent Cooperation, USPTO; Jerry Lorengo Director, TC1600, USPTO; Daniel Sullivan Director, TC1600, USPTO; and Wanda Walker Director, TC1600, USPTO • International Patent Cooperation Featuring Global Dossier (10:10 – 11:00 am) — Jessica Patterson, Program Manager, International Patent Cooperation • Outside Perspectives on International Patent Cooperation (11:00 – 11:25 am)…
The American Intellectual Property Law Association (AIPLA) will be offering a webinar entitled “Patent Prosecution Conflicts of Interest for Clients Having Competing Technologies” on April 27, 2016 from 12:30 – 2:00 pm (Eastern). Frederick W. Gibb of Gibb & Riley; William R. Griffin, U.S. Patent & Trademark Office, Deputy Director Office of Enrollment & Discipline; and Mercedes K. Meyer of DrinkerBiddle will examine caselaw and disciplinary decision examples that explain conflicts of interest, whether an attorney-client relationship actually exists, and representation of competing clients using screening walls. The registration fee for the program is $145 (AIPLA member rate) or $195…
D Young & Co will be offering a webinar on April 27, 2016 to provide an update on the Unified Patent Court (UPC) and unitary patent (UP) as well as address some common misunderstandings of the UPC and UP. The webinar will be offered at three times:…
Continue Reading ...As the world continues to grow and international trade on a multi-continent level has become the norm, protecting a company’s name is one of the most important things a company can do, regardless of their size or international standing. Due to what has become almost “organic” international growth for most companies, the use of trademarks owned by U.S. Companies within Europe has grown exponentially in the last 5 years. Consequently, the use of distribution licenses across Europe has also…
April 26, 2016 – Biotechnology/Chemical/Pharmaceutical (BCP) Customer Partnership Meeting (U.S. Patent and Trademark Office) – Alexandria, VA April 27, 2016 – “Patent Prosecution Conflicts of Interest for Clients Having Competing Technologies” (America…
Continue Reading ...Last week’s World Intellectual Property Organization conference on the digital content business gathered speakers from different sectors of industry, from content producers to authors and performers. Rightsholders and others gave updates and tried to advance strategies for managing rights in a digital market.
Continue Reading ...Of the dispute over the “de-accession” of a statue of former Supreme Court Chief Justice Taney in Baltimore, wherein a mayoral task force has recommended Taney’s statue go elsewhere, one does note that Taney’s statue should not be considered a “Confederate” statute. Taney was not a Confederate. And, in fact, there are at least two Taney statues:
The Taney statue is a direct copy of the one that sits on the grounds of the [Maryland] State House
(…)
The original Taney statue was commissioned by the state of Maryland and unveiled in 1872,
a year before Congress would approve placing his bust among those of the nation’s previous Supreme Court chief justices.
[link: http://www.baltimoresun.com/news/opinion/editorial/bs-ed-confederate-monuments-20160119-story.html ]
There is an interesting irony about referencing the Taney statue as a Confederate statue.
The majority decision in Dred Scott (authored by Taney) held that neither Scott nor any other person of African descent—whether or not emancipated from slavery—could be “citizen of a state”, and therefore was unable to bring suit in federal court on the ground of diversity.
BUT, toward the end of the Civil War, when issues arose of how to count African American soldiers in prisoner exchanges, even the Confederates acknowledged that emancipated African-Americans had to be treated as prisoners, rather than as property (in contrast to Taney’s viewpoint).
Although some commentators have mistakenly referenced Taney as a Confederate (he was on the US Supreme Court during the Civil War, and was not part of the Confederacy), Taney’s view was more extreme than taken by the Confederacy in the prisoner exchange matter.
The vote in Dred Scott was basically 7-2, with Benjamin Curtis not only dissenting but also resigning from the Court shortly thereafter.
Curtis was the only Whig appointee to the Supreme Court, and was the first law school graduate (Harvard) to serve on the Supreme Court. Curtis authored the classic decision on patent law’s “doctrine of equivalents” (Winans v. Denmead,56 U.S. 330 (1854); Taney was on the opposite side) and Curtis’ brother was a patent lawyer.
See for example, Lawrence B. Ebert, Obtaining Sure and Reliable Information, Intellectual Property Today (2000), which begins
“When invention is rife and rights so precarious as they now are under the administration of the patent office, every person ought to have some sure and reliable information in relation to his legal rights before he ventures upon application.” n2 “There is scarcely any subject out of which grows more law-suits than that of patents. Every one therefore interested should know what to avoid and what to do.” n3 Although words of contemporary wisdom, this advice was actually given about 150 years ago. The problem remains: where to get sure and reliable information?
endnote 2: From The United States Democratic review, Volume 29, Issue 158, page 192 (August 1851) reviewing Inventor’s Manual: or Legal Principles, and Guide to the Patent Office by George Ticknor Curtis, brother of Benjamin Curtis, U.S. Supreme Court Justice who authored the opinion in Winans v. Deomead, which crystallized the “doctrine of equivalents.”
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Oh and here’s also a formal challenge to all IP firms in South Africa to participate….
While I would never go into business handicapping the outcome of SCOTUS deliberations, I do have an opinion about what they should do in this case, at least on the claim construction issue. Judge Newman had it exactly right in her panel dissent and her concise dissent from the denial of rehearing en banc. The “broadest reasonable interpretation” standard is useful during the examination phase, ensuring that no conceivably relevant art is overlooked and that the applicant’s opportunity to amend…
If the Supreme Court’s recent track record in patent cases is a guide to the potential outcome in this case, it seems quite likely that the Court will not simply affirm the Federal Circuit’s decision. While the Government has set out some reasonably compelling points in support of its position, I believe the Court will agree in large part with Cuozzo and the overwhelming support of the many amici in the case that have set out significant problems and negative long term consequences to the…
The Federal Circuit Bar Association (FCBA), in conjunction with the John Marshall Law School, the Notre Dame Law School, and DePaul University College of Law will be offering a program on “Patent Litigation 2016: The Courts and the Patent Trial and Appeal Board” on April 28, 2016 from 8:45 am to 5:00 pm (CT) at the John Marshall Law School in Chicago, Illinois. The program will include presentations on the following topics: • Case Management of Patent Cases in the Northern District of Illinois under the Amended Federal Rules • Patent Case Management and Next Generation: The Corporate Counsel Perspectives…
The U.S. Patent and Trademark Office will be hosting a Symposium on Enhanced Patent Quality on April 27, 2016 from 9:00 am to 5:00 pm ET in the Madison Auditorium at the USPTO headquarters in Alexandria, VA. The purpose of the Symposium is to provide an update about the USPTO’s programs to enhance patent quality. There also will be a hands on workshop to showcase new ways that the USPTO will measure patent quality and a panel discussion with experienced practitioners about how applicants can strengthen their application filings. The Symposium will provide presentations on the following topics: • Opening…