DOCSLIB.ORG

Chapter 4 Claim Construction

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Chapter 4 Claim Construction 4-i Cameron’s Patent and Trade Secrets Law Chapter 4 Claim Construction TABLE OF CONTENTS 4.1. INTRODUCTION: “WHAT DOES THE CLAIM MEAN?” ...................................... 1 4.2. HISTORY OF CLAIMING .................................................................................... 2 4.3. HISTORY OF CLAIM CONSTRUCTION ............................................................. 6 4.3.1. The Two Part Test: Literal and Substantive Infringement ......................... 6 4.3.1.1. Literal Infringement .............................................................. 8 4.3.1.2. Substantive Infringement ................................................... 10 4.3.2. Catnic .......................................................................................... 14 4.3.3. Improver .......................................................................................... 17 4.4. THE FIRST DUTY OF THE COURT ................................................................. 18 4.4.1. Claim Construction is the Job of the Court/Standard of Review ............. 19 4.4.1.1. Claim Construction as a “question of law” ......................... 19 4.4.1.2. Factual Findings during Claim Construction ...................... 20 4.4.1.3. Deference suggested ........................................................ 22 4.4.2. Onus on construction .............................................................................. 23 4.4.2.1. Patent as a “Regulation” .................................................... 24 4.4.2.2. Markman Hearings ............................................................ 25 4.4.3. Use of Expert Witnesses ......................................................................... 26 4.5. THE PRINCIPLES OF CLAIM CONSTRUCTION IN FREE WORLD AND WHIRLPOOL ..................................................................................................... 33 4.6. “PURPOSIVE” CONSTRUCTION ..................................................................... 36 4.6.1. Rejection of “Form and Substance” Approach ........................................ 38 4.7. STEP 1: WHAT DO THE WORDS AND PHRASES IN THE CLAIM MEAN? .............................................................................................................. 39 4.7.1. Pre-Construction Set-Up ......................................................................... 40 4.7.1.1. The Relevant Date ............................................................ 41 2797919 Cameron’s Patent and Trade Secrets Law 4-ii 4.7.1.2. The Skilled Reader: The person of Ordinary Skill in the Art (“POSITA”) ............................................................. 42 4.7.1.3. Objective Attitude or Biased for Really Useful Inventions .......................................................................... 44 4.7.1.4. With an Eye on the Defendant’s Product ........................... 46 4.7.2. Use of the Patent Specification ............................................................... 48 4.7.2.1. The Patent Should be Read as a Whole ........................... 48 4.7.2.2. Use of the Abstract ............................................................ 49 4.7.2.3. Use of the Preamble to the Claim ...................................... 49 4.7.2.4. Use of the Disclosure and Drawings ................................. 50 4.7.2.5. Patentee as Lexicographer ................................................ 56 4.7.2.6. Use of the Variance Clause ............................................... 56 4.7.2.7. Dependant Claims, Claim Differentiation and Claim Consistency ....................................................................... 57 4.7.2.8. Other Independent Claims................................................. 62 4.7.2.9. “Comprising” or “Consisting of” .......................................... 63 4.7.2.10. Dependent Claims: “… any of Claims …” .......................... 66 4.7.2.11. Method Claims: Order of Steps ......................................... 67 4.7.3. Use of External Material .......................................................................... 67 4.7.3.1. Dictionaries ........................................................................ 68 4.7.3.2. File Wrapper Estoppel ....................................................... 69 4.7.3.3. Prior Art ............................................................................. 72 4.7.3.4. Testimony of the Inventor .................................................. 72 4.7.3.5. Other Patents of the same Owner ..................................... 73 4.7.3.6. Other Canadian Decisions Construing the Same Patent ................................................................................ 74 4.7.3.7. Foreign Decisions and Issue Estoppel .............................. 75 4.7.4. Use of Language: Synecdoche or Metonymy ......................................... 77 4.7.4.1. Examples of Synecdoche and Metonymy.......................... 79 4.8. STEP 2: IS A CLAIM ELEMENT “ESSENTIAL”? ............................................... 82 4.8.1. A Purposive Construction of Free World ................................................. 84 4.8.2. Q. #1: The Obviously Superfluous Claim Element .................................. 85 4.8.2.1. The Presence of a Variant ................................................. 86 4.8.2.2. Does the Variant Affect the Way the Invention Works? ..... 87 a) The Way the Invention Works ........................................... 88 2797919 4-iii Cameron’s Patent and Trade Secrets Law b) The Way (the Invention + the Variant) Works .................... 88 4.8.2.3. Obvious Substitutability … At the Time the Patent was Published ........................................................................... 89 a) At the Time the Patent Application is Published ................ 91 4.8.3. Q. #2: Is the Element Essential, According to the Intent of the Inventor as Expressed or Inferred from the Claims? ............................... 92 4.8.3.1. Adherence to the Language of the Claims ........................ 94 4.8.3.2. The Inferred Intent of the Inventor ..................................... 97 4.8.3.3. Most Claims Contain Only Essential Elements .................. 98 4.8.3.4. Words of Precision and the Precision of Words .............. 101 4.8.3.5. Numbers .......................................................................... 102 4.8.3.6. “About”............................................................................. 103 4.8.3.7. “Substantially” .................................................................. 104 4.8.4. “Irrespective of its Practical Effect” ....................................................... 104 4.8.5. An Inconsistency in Free World ............................................................ 105 4.9. DEVELOPMENTS IN CLAIM CONSTRUCTION SINCE FREE WORLD AND WHIRLPOOL .......................................................................................... 111 4.9.1. Subsequent Case Law .......................................................................... 111 4.9.1.1. Back to Improver ............................................................. 112 4.9.2. The 2004 Kirin-Amgen Decision ........................................................... 115 4.9.3. The 2017 Actavis Decision ................................................................... 119 4.10. “SWISS” TYPE CLAIMS .................................................................................. 124 4.11. CONCLUSIONS .............................................................................................. 125 4.12. APPENDIX A ................................................................................................... 126 2797919 Cameron’s Patent and Trade Secrets Law 4-iv © 2007-2018 Donald M. Cameron The author wishes to express his appreciation to The Honourable Justice George Locke, Daniel Artola and Donald MacOdrum for their thoughtful suggestions in reviewing early versions of this chapter and to Prosenjit Lahiry, Graham McNeil, Amy Grenon, Glenn Hines, Kathrine Smirl, Aftab Khan, Noelle Engle-Hardy and Michael Burgess for their assistance in researching the law. 2797919 4-1 Cameron’s Patent and Trade Secrets Law EXECUTIVE SUMMARY: The question to be asked in construing a claim of a patent is: “What would the claim have meant to a skilled reader as of the relevant date?” (Chapter 4.1). Claim construction consists of the following: 1) The claim language must be read in an informed and purposive way. The words chosen by the inventor should be read in the sense the inventor is presumed to have intended, and in a way that is sympathetic to accomplishment of the inventor’s purpose expressed or implicit in the text of the claims (Chapter 4.6). 2) Read the patent as a whole, and construe the claims in the context of the patent (Chapter 4.7.2.1). 3) Read the patent as if you were the person or persons to whom it was addressed. (Chapter 4.7.1.2). If the disclosure expressly defines certain terms to have certain meanings, use those definitions when interpreting the claims (Chapter 4.7.2.5). Otherwise, a word or phrase should be given the ordinary meaning it would have had to such person or persons as of the relevant date, as used within the context of the patent. (Chapter 4.7). 4) The relevant date for construing the patent claims is either: a) the date of issuance of the patent, for patents applied for before October 1, 1989; or b) the date of publication of the patent application, for patents applied for on or after October 1, 1989 (Chapter 4.7.1.1). 5) To determine whether a claim element
Load more

Recommended publications
  • What's So Special About Patent Law?
    View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Fordham University School of Law Fordham Intellectual Property, Media and Entertainment Law Journal Volume 26 Volume XXVI Number 4 Volume XXVI Book 4 Article 1 2016 What’s So Special About Patent Law? Michael Goodman George Washington University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Intellectual Property Law Commons Recommended Citation Michael Goodman, What’s So Special About Patent Law?, 26 Fordham Intell. Prop. Media & Ent. L.J. 797 (2016). Available at: https://ir.lawnet.fordham.edu/iplj/vol26/iss4/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. What’s So Special About Patent Law? Cover Page Footnote Frank H. Marks Visiting Associate Professor of Law, George Washington University School of Law. University of Mary Washington, B.S.; Duke Law School, J.D.; Emory University, M.A./Ph.D. I am grateful to Gregory Dolin, William Hubbard, and Kristina Caggiano Kelly for their thoughtful comments on early drafts and to Melody for the time to write. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol26/iss4/1 What’s So Special About Patent Law? Michael Goodman* The widespread belief that patent law is special has shaped the de- velopment of patent law into one of the most specialized areas of the law today.
    [Show full text]
  • Patent Court Decision Clarifies Mental Act Patentability Exclusion
    Patent Court Decision Clarifies Mental Act Patentability Exclusion We talk a lot about software and business method patents, but one of the subject-matter exclusions which attracts less attention is that of methods of performing a mental act. The exclusion has been touched upon in past UK decisions and two possible interpretations have been considered, the wide interpretation and the narrow interpretation. The question of which interpretation is correct has not been tackled head-on, until now. The scope of the mental act exclusion was addressed in full by HHJ Birss QC in his recent Patents Court judgement on Halliburton's application. This case is an appeal from a refusal by the UK Intellectual Property Office (IPO) of four UK patent applications relating to methods of designing a drill bit by simulation. Schemes, rules and methods for performing a mental act as such are excluded from patentability by the same legislative clauses that exclude software and business methods. This is true both in the UK and in the European Patent Office (EPO). As with the other exclusions, the "as such" rider has created confusion and debate as to where exactly to draw the line between patentable and non-patentable. This decision provides important clarifications in this regard. The bulk of the decision concerns the choice between the wide interpretation of mental acts, in which any method capable of being carried out mentally is excluded, and the narrow interpretation, in which only methods actually carried out mentally are excluded. This potential difference in interpretation makes a huge difference in the case of complex numerical processes such as simulations - in theory, the processing involved in the simulation could be carried out mentally, without the aid of a computer.
    [Show full text]
  • The Festo Decision and the Return of the Supreme Court to the Bar of Patents
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 2002 The esF to Decision and the Return of the Supreme Court to the Bar of Patents John F. Duffy Repository Citation Duffy, John F., "The eF sto Decision and the Return of the Supreme Court to the Bar of Patents" (2002). Faculty Publications. 850. https://scholarship.law.wm.edu/facpubs/850 Copyright c 2002 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs JOHN F. DUFFY THE FESTO DECISION AND THE RETURN OF THE SUPREME COURT TO THE BAR OF PATENTS On January 8, 2002, a crowded courtroom in the Supreme Court witnessed a famous legal and political figure rise from his chair to begin arguments on a case about monopolies. The individual was well qualified for the task. He had written one of the most impor­ tant books on monopolies in the last half-century, 1 taught antitrust law at the Yale Law School, represented the United States as Solic­ itor General, and served for six years as a judge on one of the most important federal courts in the nation.2 In many ways, there was nothing unusual about this scene. Since the dawn of the republic, federal policy toward business monopolies has excited passions both inside and outside of courtrooms. In every period of its his­ tory, the Supreme Court has been intimately involved in crafting the federal law of monopolies, and the cases at the Court have frequently attracted some of the most preeminent members of the bar.
    [Show full text]
  • Unitary Patent and Unified Patent Court: State of Play
    UNITARY PATENT AND UNIFIED PATENT COURT: STATE OF PLAY Stefan Luginbuehl Lawyer, International Legal Affairs, PCT European Patent Office, Munich REGULATIONS ON UNITARY PATENT PROTECTION 20 January 2013: Entry into force of two EU regulations . Regulation (EU) No. 1257/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection . Regulation (EU) No. 1260/2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements For the 25 participating member states REGULATIONS ON UNITARY PATENT PROTECTION . Italy joined the enhanced co-operation scheme 2 October 2015. Regulations (EU) No. 1257/2012 and (EU) No. 1260/2012 are now in force for 26 of the 28 EU member states (exceptions: Croatia and Spain). They apply from the date of the entry into force of the Agreement on a Unified Patent Court (UPC Agreement). AGREEMENT ON A UNIFIED PATENT COURT (UPC AGREEMENT) . The UPC Agreement was signed on 19 February 2013 by 25 of the 28 EU member states (exceptions: Croatia, Poland and Spain). Austria 7 August 2013 . It will enter into force after the deposit France 14 March 2014 of the 13th instrument of ratification or Sweden 5 June 2014 accession (including France, Germany and the UK). Belgium 6 June 2014 Denmark 20 June 2014 . So far, nine states have deposited their Malta 9 December 2014 instruments of ratification. Luxembourg 22 May 2015 Portugal 28 August 2015 . Several states have indicated their intention to ratify in the next few months.
    [Show full text]
  • Patenting Software-Related Inventions According to the European Patent Convention a Review of Past and Present Law and Practice
    Patenting Software-related Inventions according to the European Patent Convention A review of past and present law and practice Yannis Skulikaris Director, Examination & Opposition of Software-related Inventions European Patent Office The Hague, The Netherlands [email protected] Abstract— This paper presents a retrospective of the different main issue of the debate is under which conditions patenting epochs in patenting software-related inventions in the European of software-related inventions fosters innovation and is Patent Office (EPO). To put things in perspective, it also makes conducive to economic growth. The arguments on each side reference to other jurisdictions as well, in particular USA. The emphasis is however on present EPO practice. Three different depend on the applicable law, the interests of the parties epochs are presented and the corresponding approaches to involved, the intellectual property policy followed and the dealing with software-related inventions are discussed, also with case law that affects patenting practice. In the meantime a regard to the applicable case law: the "contribution" approach, substantial amount of patents for software-related inventions the "further technical effect" approach and the present approach has been issued worldwide. In parallel, a considerable number (also known as the "Hitachi-Comvik" approach), which is based of patent applications which have been refused at first on differentiation between non-technical features (which do not serve to distinguish the invention from the pre-existing technology instance, has gone through the court instances with various in a non-obvious way), and those technical features contributing outcomes in different jurisdictions. The resulting case law to non-obviousness of the invention when compared to the pre- does not always point in the same direction, especially if one existing technology.
    [Show full text]
  • The Effects of Licences Under Patents
    The effects of licences under patents Essentials The effect of licences under patents Grounds for Proceedings for Decisions and ADR invalidity invalidity judgments Jursidiction and procedure Fundamentals of Plaintiff/ Construction of patent Defences and OUT OF COURT IN COURT infringement claimant specifications remedies UPC Agreement Biological inventions Burden of proof Liability National approaches Introduction A granted patent confers upon the patentee the exclusive right to use Commission Regulation (EU) No. 316/2014 and exploit the patent during its term, which means that the patentee of 21 March 2014 on the application of Article 101(3) of the Treaty on the can prevent others from using the patented technology. If another Functioning of the European Union person or legal entity wishes to use the technology protected by a patent, to categories of technology transfer agreements. that person has to either acquire the patent by virtue of a purchase agreement, or obtain a licence to use the patent by virtue of a licence According to the EU Commission, licence agreements “will usually improve economic agreement. efficiency and be pro-competitive as they can reduce duplication of research and development, strengthen the incentive for There are various reasons why a patentee may either sell its patent or the initial research and development, spur grant a licence and, therefore, there are various types of agreement incremental innovation, facilitate diffusion and generate product market competition.” in which a patentee can grant another person the right to use its (Recital (4) of Commission Regulation patent. A common reason for granting a licence is that this provides an No.
    [Show full text]
  • UPC Agreement
    AGREEMENT ON A UNIFIED PATENT COURT UPC/en 1 UPC/en 2 THE CONTRACTING MEMBER STATES, CONSIDERING that cooperation amongst the Member States of the European Union in the field of patents contributes significantly to the integration process in Europe, in particular to the establishment of an internal market within the European Union characterised by the free movement of goods and services and the creation of a system ensuring that competition in the internal market is not distorted; CONSIDERING that the fragmented market for patents and the significant variations between national court systems are detrimental for innovation, in particular for small and medium sized enterprises which have difficulties to enforce their patents and to defend themselves against unfounded claims and claims relating to patents which should be revoked; CONSIDERING that the European Patent Convention ("EPC") which has been ratified by all Member States of the European Union provides for a single procedure for granting European patents by the European Patent Office; CONSIDERING that by virtue of Regulation (EU) No 1257/20121, patent proprietors can request unitary effect of their European patents so as to obtain unitary patent protection in the Member States of the European Union participating in the enhanced cooperation; 1 Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection (OJEU L 361, 31.12.2012, p. 1) including any subsequent
    [Show full text]
  • Q&A on Patent Law in Australia
    ChapterXX 7 27 Australia Australia Jane Owen Bird & Bird LLP Rebecca Currey 1 Patent Enforcement 1.4 What has to be done to commence proceedings, what court fees have to be paid and how long does it generally take for proceedings to reach trial from commencement? 1.1 Before what tribunals can a patent be enforced against an infringer? Is there a choice between tribunals and what To commence proceedings in the Federal Court, a party must file an would influence a claimant’s choice? originating application. The originating application will be accom- panied by a statement of claim and a genuine steps statement in The Federal Court of Australia (Federal Court) and the state and accordance with the Federal Court Rules 2011 (Cth) (FCRs). territory Supreme Courts have jurisdiction to hear patent The fees to file an originating application are prescribed in infringement matters. schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012. Patent infringement proceedings are typically brought in the As of July 2018, the fee for filing an originating application for a Federal Court because this Court has numerous judges with exten- corporation is AUD 4,045. sive patent expertise who are appointed to the patent list and The period of time that elapses between the filing of the allocated to hear these matters. originating application and the final trial depends on the complexity of the proceedings – for example, whether the applicant seeks to 1.2 Can the parties be required to undertake mediation amend the patent(s), the number of patents asserted, whether experiments need to be carried out, and how long evidence before commencing court proceedings? Is mediation or preparation takes.
    [Show full text]
  • Patent Law in the Age of the Invisible Supreme Court
    Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2001 Patent Law in the Age of the Invisible Supreme Court Mark D. Janis Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/facpub Part of the Courts Commons, and the Intellectual Property Law Commons Recommended Citation Janis, Mark D., "Patent Law in the Age of the Invisible Supreme Court" (2001). Articles by Maurer Faculty. 429. https://www.repository.law.indiana.edu/facpub/429 This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. PATENT LAW IN THE AGE OF THE INVISIBLE SUPREME COURT Mark D. Janis* In this article, University of Iowa Law Professor Mark Janis ex- amines "the permanence of the [Supreme] Court's retreat to the pe- ripheries of patent law after the creation of the Federal Circuit," ex- ploring what roles the Supreme Court might imagine for itself in contemporary patent law. Professor Janis first establishes some pa- rameters for Supreme Court decision making in patent cases by ana- lyzing two extremes: an aggressive interventionist model and an ex- treme noninterventionistmodel. He then proposes an intermediate, managerialmodel in which the Court's role centers on an effective al- location of power among institutions of the patent system. The managerialmodel encouragesthe Court to impose prudential restric- tions on the scope of its own patent opinions and rejects the paradigm of ad hoc, substantive error correction as a serious future role for the Court in patent law.
    [Show full text]
  • Institutional Fracture in Intellectual Property Law: the Supreme Court Versus Congress
    Article Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress Gregory N. Mandel† Introduction .............................................................................. 804 I. Supreme Court and Congressional Intellectual Property Activity ................................................................................ 807 A. Supreme Court Decisions ............................................ 809 1. The Patent Cases ................................................... 811 2. The Trademark Cases ........................................... 818 3. The Copyright Cases ............................................. 820 B. Congress ....................................................................... 823 1. Trademark Legislation ......................................... 825 2. Copyright Legislation ............................................ 827 3. Trade Secret Legislation ....................................... 828 4. Patent Legislation ................................................. 829 II. Intellectual Property Influences ....................................... 833 A. Congressional Influences ............................................ 833 1. Public Choice ......................................................... 834 2. Intellectual Property Subfields ............................ 839 B. Supreme Court Influences .......................................... 841 1. Legal Reasoning .................................................... 843 2. Justice Ideology ....................................................
    [Show full text]
  • Judging Patents
    William & Mary Law Review Volume 62 (2020-2021) Issue 3 Article 4 2-1-2021 Judging Patents Sapna Kumar Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Courts Commons, Intellectual Property Law Commons, and the Science and Technology Law Commons Repository Citation Sapna Kumar, Judging Patents, 62 Wm. & Mary L. Rev. 871 (2021), https://scholarship.law.wm.edu/wmlr/vol62/iss3/4 Copyright c 2021 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr JUDGING PATENTS SAPNA KUMAR* ABSTRACT Patent litigation is regarded as the “neurosurgery of litigation.” To adjudicate these cases, judges must grasp complex technology underlying the claims at issue, notwithstanding the fact that many judges lack relevant science or technology backgrounds. This problem is compounded by the fact that judges generally lack access to neutral expertise, forcing them to rely upon party-hired experts for tutorials. By contrast, several European patent courts utilize technically qualified judges who work side by side with their legally trained counterparts to decide patent cases. The integration of technical expertise into the judiciary improves the speed of litigation, provides the court with unbiased information, and likely increases the accuracy of the judges’ claim construction. This Article examines the role of technical expertise in patent litigation and discusses obstacles to U.S. district courts obtaining assistance. It then looks at the use of technically qualified judges in Germany and Switzerland, as well as in the European Union’s proposed Unified Patent Court, and it Law Foundation Professor of Law, University of Houston Law Center.
    [Show full text]
  • Copyright, Patent, and Trade Secret Protection for Computer Software in Western Europe, 8 Computer L.J
    The John Marshall Journal of Information Technology & Privacy Law Volume 8 Article 1 Issue 4 Computer/Law Journal - Fall 1988 Fall 1988 Copyright, Patent, and Trade Secret Protection for Computer Software in Western Europe, 8 Computer L.J. 327 (1988) John P. Sumner Dianne Plunkett Follow this and additional works at: http://repository.jmls.edu/jitpl Part of the Computer Law Commons, Intellectual Property Law Commons, Internet Law Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation John P. Sumner & Dianne Plunkett, Copyright, Patent, and Trade Secret Protection for Computer Software in Western Europe, 8 Computer L.J. 327 (1988) http://repository.jmls.edu/jitpl/vol8/iss4/1 This Article is brought to you for free and open access by The oJ hn Marshall Institutional Repository. It has been accepted for inclusion in The oJ hn Marshall Journal of Information Technology & Privacy Law by an authorized administrator of The oJ hn Marshall Institutional Repository. COPYRIGHT, PATENT, AND TRADE SECRET PROTECTION FOR COMPUTER SOFTWARE IN WESTERN EUROPE* by JOHN P. SUMNER** DIANNE PLUNKETT*** TABLE OF CONTENTS I. INTRODUCTION .......................................... 329 A. COPYRIGHT PROTECTION ................................ 329 B. PATENT PROTECTION ................................... 331 C. TRADE SECRET PROTECTION ............................ 333 II. PATENT CONVENTIONS ................................. 333 A. EUROPEAN PATENT OFFICE ............................. 335 1. The EPO Vicom Decision ........................... 337 * The authors gratefully acknowledge Kathleen R. Terry of the University of Minnesota as well as Curtis B. Hamre of Merchant, Gould, Smith, Edell, Welter and Schmidt for their review and constructive comments on the patent material in this article. ** John P. Sumner is associated with the law firm of Merchant, Gould, Smith, Edell, Welter & Schmidt, P.A., Patent, Trademark and Copyright Lawyers in Minneapolis, Min- nesota.
    [Show full text]