Inventions, Patents, and NIH Intellectual Property Policies
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Federal Circuit Year in Review
ss TABLE OF CONTENTS Page INTRODUCTION .......................................................................................................................... 1 ACKNOWLEDGEMENT .............................................................................................................. 2 GIBSON DUNN’S FEDERAL CIRCUIT CLERKS ..................................................................... 3 STATISTICAL ANALYSIS .......................................................................................................... 6 INDEX BY ISSUE ....................................................................................................................... 28 CASE SUMMARIES ................................................................................................................... 44 ALPHABETICAL INDEX OF ALL CASES ............................................................................. 133 INTRODUCTION The Federal Circuit’s 2019‒2020 term saw a number of important developments in patent law. The Court issued 130 published opinions. This term included significant panel decisions in patent law jurisprudence with regard to the constitutionality of the PTAB and its jurisdiction and procedures (Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), Samsung Electronics America, Inc. v. Prisua Engineering Corp., 948 F.3d 1342 (Fed. Cir. 2020), and Nike, Inc. v. Adidas AG, 955 F.3d 45 (Fed. Cir. 2020)), subject matter eligibility (American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, 967 F.3d 1285 (Fed. Cir. -
Patent Law: a Handbook for Congress
Patent Law: A Handbook for Congress September 16, 2020 Congressional Research Service https://crsreports.congress.gov R46525 SUMMARY R46525 Patent Law: A Handbook for Congress September 16, 2020 A patent gives its owner the exclusive right to make, use, import, sell, or offer for sale the invention covered by the patent. The patent system has long been viewed as important to Kevin T. Richards encouraging American innovation by providing an incentive for inventors to create. Without a Legislative Attorney patent system, the reasoning goes, there would be little incentive for invention because anyone could freely copy the inventor’s innovation. Congressional action in recent years has underscored the importance of the patent system, including a major revision to the patent laws in 2011 in the form of the Leahy-Smith America Invents Act. Congress has also demonstrated an interest in patents and pharmaceutical pricing; the types of inventions that may be patented (also referred to as “patentable subject matter”); and the potential impact of patents on a vaccine for COVID-19. As patent law continues to be an area of congressional interest, this report provides background and descriptions of several key patent law doctrines. The report first describes the various parts of a patent, including the specification (which describes the invention) and the claims (which set out the legal boundaries of the patent owner’s exclusive rights). Next, the report provides detail on the basic doctrines governing patentability, enforcement, and patent validity. For patentability, the report details the various requirements that must be met before a patent is allowed to issue. -
Validity and Constitutionality of Inter Parte Reviews Before the U.S. Supreme Court
Eastern Kentucky University Encompass Online Theses and Dissertations Student Scholarship 2018 Validity and Constitutionality of Inter Parte Reviews Before the U.S. Supreme Court Helen Kathryn Emmons Kelly Eastern Kentucky University Follow this and additional works at: https://encompass.eku.edu/etd Part of the Intellectual Property Law Commons, and the Public Administration Commons Recommended Citation Emmons Kelly, Helen Kathryn, "Validity and Constitutionality of Inter Parte Reviews Before the U.S. Supreme Court" (2018). Online Theses and Dissertations. 564. https://encompass.eku.edu/etd/564 This Open Access Thesis is brought to you for free and open access by the Student Scholarship at Encompass. It has been accepted for inclusion in Online Theses and Dissertations by an authorized administrator of Encompass. For more information, please contact [email protected]. VALIDITY AND CONSTIUTIONALITY OF INTER PARTE REVIEWS BEFORE THE U.S. SUPREME COURT BY HELEN KATHRYN EMMONS KELLY Submitted to the Faculty of the Graduate School of Eastern Kentucky University in partial fulfillment of the requirements for the degree of MASTERS OF PUBLIC ADMINISTRATION 2018 © Copyright by HELEN KATHRYN EMMONS KELLY 2018 All Rights Reserved. ii ABSTRACT For 400 years, courts have adjudicated disputes between private parties about the validity of patents. Inventors apply for patents to an administrative agency. Patent examiners review the application to determine whether or not an idea is valid to have a patent issued. Patent examiners are people and sometimes errors are made. An administrative agency must have an administrative avenue to review a potential error. Six years ago, Congress created a review with the implementation of inter parte reviews. -
Patents and the Public Domain: Improving Patent Quality Upon Reexamination
Patents and the Public Domain: Improving Patent Quality Upon Reexamination Prepared by Policy Intern Raeanne Young [email protected] May 2008 ELECTRONIC FRONTIER FOUNDATION eff.org Table of Contents EXECUTIVE SUMMARY ........................................................................................................................3 PATENTS AND THE PUBLIC DOMAIN .....................................................................................................4 The Problem With Patent Quality ..................................................................................................4 Policy Rationale: Encouraging Innovation .......................................................................................4 PATENT REEXAMINATION ...................................................................................................................6 Ex parte and Inter partes .............................................................................................................6 OVERALL REEXAMINATION TRENDS ......................................................................................................8 Ex Parte Reexamination Filing Data: July , 98 - December 3, 2007 ...............................................8 Inter Partes Reexamination Filing Data: November 29, 999 - December 3, 2007 .............................0 Comparison of Ex Parte and Inter Partes ......................................................................................0 PROMOTING FAIRNESS IN THE PATENT SYSTEM THROUGH REEXAMINATION .............................................2 -
The “Article of Manufacture” Today
Harvard Journal of Law & Technology Volume 31, Number 2 Spring 2018 THE “ARTICLE OF MANUFACTURE” TODAY Sarah Burstein* TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 782 II. BACKGROUND .............................................................................. 785 A. Design Patentable Subject Matter ............................................ 785 B. Design Patent Claiming & Infringement ................................. 786 C. Remedies for Design Patent Infringement ............................... 788 III. WHAT IS THE “ARTICLE OF MANUFACTURE” IN § 289?.............. 789 A. The Apple/Nordock Rule .......................................................... 791 B. The Supreme Court Weighs In ................................................. 791 IV. WHY COURTS SHOULD NOT ADOPT THE GOVERNMENT’S APPROACH .................................................................................... 793 A. The Test .................................................................................... 794 1. The Underlying Premise ........................................................ 795 2. The Factors ............................................................................ 797 B. The Nature of the Inquiry ......................................................... 802 1. A Case-by-Case Inquiry? ...................................................... 802 2. Is it a Question of Fact or Law? ............................................ 807 C. The Burden of Proof................................................................ -
Bayh-Dole of United States for Purposes of This Chapter by Execu- Act
§ 187 TITLE 35—PATENTS Page 88 tion is amended by striking ‘‘of this title’’ each CHAPTER 18—PATENT RIGHTS IN INVEN- place that term appears. See 2011 Amendment TIONS MADE WITH FEDERAL ASSISTANCE note below. Sec. HISTORICAL AND REVISION NOTES 200. Policy and objective. Based on Title 35, U.S.C., 1946 ed., § 156 (Feb. 1, 1952, 201. Definitions. ch. 4, § 6, 66 Stat. 5, 6). 202. Disposition of rights. Language is changed. 203. March-in rights. 204. Preference for United States industry. AMENDMENTS 205. Confidentiality. 2011—Pub. L. 112–29 struck out ‘‘of this title’’ after 206. Uniform clauses and regulations. ‘‘181’’ and after ‘‘184’’. 207. Domestic and foreign protection of federally 1988—Pub. L. 100–418, which directed the insertion of owned inventions. ‘‘willfully’’ after second reference to ‘‘whoever’’, was 208. Regulations governing Federal licensing. executed by making the insertion after ‘‘or whoever’’, 209. Licensing federally owned inventions. as the probable intent of Congress. 210. Precedence of chapter. 211. Relationship to antitrust laws. EFFECTIVE DATE OF 2011 AMENDMENT 212. Disposition of rights in educational awards. Amendment by Pub. L. 112–29 effective upon the expi- AMENDMENTS ration of the 1-year period beginning on Sept. 16, 2011, and applicable to proceedings commenced on or after 2000—Pub. L. 106–404, § 4(b), Nov. 1, 2000, 114 Stat. 1744, that effective date, see section 20(l) of Pub. L. 112–29, substituted ‘‘Licensing federally owned inventions’’ for set out as a note under section 2 of this title. ‘‘Restrictions on licensing of federally owned inven- tions’’ in item 209. -
Case 1:12-Cv-10576-DJC Document 358 Filed 04/30/21 Page 1 of 19
Case 1:12-cv-10576-DJC Document 358 Filed 04/30/21 Page 1 of 19 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS _________________________________________ ) WORLDS, INC., ) ) Plaintiff ) ) v. ) ) Civil Action No. 12-10576-DJC ACTIVISION BLIZZARD, INC., ) BLIZZARD ENTERTAINMENT, INC. and ) ACTIVISION PUBLISHING, INC., ) ) Defendants. ) _________________________________________ ) MEMORANDUM AND ORDER CASPER, J. April 30, 2021 I. Introduction Plaintiff Worlds, Inc., (“Worlds”) alleges that Defendants Activision Blizzard, Inc., Blizzard Entertainment, Inc. and Activision Publishing, Inc. (collectively, “Activision”) infringe United States Patents Nos. 7,181,690 (“‘690”), 7,493,558 (“‘558”), 7,945,856 (“‘856”), 8,082,501 (“‘501”) and 8,145,998 (“‘998”) (collectively, the “Patents-In-Suit”). Activision has moved for summary judgment seeking a ruling that the remaining claims of the Patents-In-Suit at issue are invalid as a matter of law. D. 272. For the following reasons, the Court ALLOWS Activision’s motion. II. Factual Background The following material facts are based upon Activision’s Statement of Material Facts, D. 177, Worlds’ Statement of Material Facts, D. 185, and/or the documents referenced in same and are undisputed. 1 Case 1:12-cv-10576-DJC Document 358 Filed 04/30/21 Page 2 of 19 A. Patents-In-Suit At this juncture, Worlds presses that Activision infringes the following twenty-one claims of the Patents-In-Suit: ‘690 claims 4, 8, 13 and 16; ‘558 claims 5 and 7; ‘856 claim 1; ‘501 claims 1-8, 10, 12 and 14-16; and ‘998 claim 18. D. 269 at 2; D. 283 at 10. As Worlds has explained, the Patents-In-Suit resolve bandwidth issues with multiplayer games through “multi-criteria filtering of avatar position and state information, but at the client side and the server side,” i.e., “crowd control.” D. -
Patent Law: a Handbook for Congress
Patent Law: A Handbook for Congress September 16, 2020 Congressional Research Service https://crsreports.congress.gov R46525 SUMMARY R46525 Patent Law: A Handbook for Congress September 16, 2020 A patent gives its owner the exclusive right to make, use, import, sell, or offer for sale the invention covered by the patent. The patent system has long been viewed as important to Kevin J. Hickey, encouraging American innovation by providing an incentive for inventors to create. Without a Coordinator patent system, the reasoning goes, there would be little incentive for invention because anyone Legislative Attorney could freely copy the inventor’s innovation. Congressional action in recent years has underscored the importance of the patent system, including a major revision to the patent laws in 2011 in the form of the Leahy-Smith America Invents Act. Congress has also demonstrated an interest in patents and pharmaceutical pricing; the types of inventions that may be patented (also referred to as “patentable subject matter”); and the potential impact of patents on a vaccine for COVID-19. As patent law continues to be an area of congressional interest, this report provides background and descriptions of several key patent law doctrines. The report first describes the various parts of a patent, including the specification (which describes the invention) and the claims (which set out the legal boundaries of the patent owner’s exclusive rights). Next, the report provides detail on the basic doctrines governing patentability, enforcement, and patent validity. For patentability, the report details the various requirements that must be met before a patent is allowed to issue. -
Drug Pricing and Pharmaceutical Patenting Practices
Drug Pricing and Pharmaceutical Patenting Practices February 11, 2020 Congressional Research Service https://crsreports.congress.gov R46221 SUMMARY R46221 Drug Pricing and Pharmaceutical Patenting February 11, 2020 Practices Kevin T. Richards, Intellectual property (IP) rights in pharmaceuticals are typically justified as necessary to allow Coordinator manufacturers to recoup their substantial investments in research, development, and regulatory Legislative Attorney approval. IP law provides exclusive rights in a particular invention or product for a certain time period, potentially enabling the rights holder (e.g., a brand-name drug manufacturer) to charge Kevin J. Hickey higher-than-competitive prices. If rights holders are able to charge such prices, they have an Legislative Attorney incentive to lengthen the period of exclusive rights as much as possible. Indeed, some commentators allege that pharmaceutical manufacturers have engaged in patenting practices that unduly extend the period of exclusivity. These critics argue that these patenting practices are used Erin H. Ward to keep drug prices high, without any benefit for consumers or innovation. Criticisms center on Legislative Attorney four such practices: “Evergreening”: So-called patent “evergreening” is the practice of filing for new patents on secondary features of a particular product as earlier patents expire, thereby extending patent exclusivity past the original twenty-year term. Later-filed patents may delay or prevent entry by competitors, thereby allowing the brand-name -
Download Download
THE PATENTABILITY OF SIGNAL-CARRYING MEDIA KEVIN T. MCCUSKER* INTRODUCTION If you’re like most Americans, you probably have a cellphone with you at all times.1 Although we may appreciate the technology that goes into a smartphone, we may not appreciate the intellectual property underlying that technology. Indeed, an astounding 250,000 active patents relate to smartphones in some way.2 With patent licensing fees of approximately $120 for a $400 phone—$70 of which is for software-related patents—patent licensing for cell phones is a $180 billion a year business.3 Software-related patents can protect the underlying inventions in different ways, including by patenting a device (such as a cell phone), a storage medium (such as a DVD or flash drive), or a method of using a device to implement the invention.4 But holders of software patents are missing out on protection of their software inventions during transmission, such as when end users download software from the Internet.5 In In re Nuijten, the Federal Circuit determined that a claim in a patent application directed to “[a] signal” was not patent-eligible subject matter, describing the signal as “transitory.”6 The Federal Circuit held that a signal per se—as opposed to a device or method for making a signal—was not eligible for patent protection because it did not fall into any of the four statutory categories of invention.7 Since Nuijten, the United States Patent and Trademark Office (USPTO) does not allow patents to issue that cover signals in transmission, such * J.D. -
Petitioners, V
No. 20-____ IN THE Supreme Court of the United States ———— COCHLEAR CORPORATION, COCHLEAR LTD., Petitioners, v. ALFRED E. MANN FOUNDATION FOR SCIENTIFIC RESEARCH, ADVANCED BIONICS, LLC, Respondents. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Federal Circuit ———— PETITION FOR A WRIT OF CERTIORARI ———— KATHLEEN M. SULLIVAN Counsel of Record THOMAS D. PEASE KEVIN A. SMITH QUINN EMANUEL URQUHART & SULLIVAN, LLP 51 Madison Avenue 22nd Floor New York, NY 10010 (212) 849-7000 kathleensullivan@ quinnemanuel.com Counsel for Petitioners September 14, 2020 WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 QUESTIONS PRESENTED 1. Whether the Federal Circuit has misapplied the “book of wisdom” set forth in Sinclair Refining Co. v. Jenkins Petroleum Process Co., 289 U.S. 689 (1933), by allowing a reasonable royalty for patent infringement under the Patent Act, 35 U.S.C. § 284, to be deter- mined by evidence arising long after the hypothetical negotiation on which that royalty is based? 2. Whether Maryland v. Baldwin, 112 U.S. 490 (1884), forecloses an award of damages under a general damages verdict where some claims underlying that award are overturned after trial, and if so, whether a party may challenge such a result notwithstanding agreement to a general damages verdict? 3. Whether Garretson v. Clark, 111 U.S. 120, 121 (1884), requires apportionment of patent damages to the inventive contribution of the claimed technology? (i) ii PARTIES TO THE PROCEEDINGS BELOW Petitioner Cochlear Americas (f/k/a Cochlear Corporation) was a defendant-appellant below. Petitioner Cochlear Ltd. -
Extending Issue Preclusion to Claim Construction During Reexamination of Previously Litigated Patents
Loyola of Los Angeles Law Review Volume 44 Number 2 Winter 2011 - Symposium: Rebooting California: Initiatives, Conventions & Article 14 Government Reform 1-1-2011 Preventing Inequity: Extending Issue Preclusion to Claim Construction During Reexamination of Previously Litigated Patents Lauren Drake Loyola Law School Los Angeles, [email protected] Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Lauren Drake, Preventing Inequity: Extending Issue Preclusion to Claim Construction During Reexamination of Previously Litigated Patents, 44 Loy. L.A. L. Rev. 749 (2011). Available at: https://digitalcommons.lmu.edu/llr/vol44/iss2/14 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. PREVENTING INEQUITY: EXTENDING ISSUE PRECLUSION TO CLAIM CONSTRUCTION DURING REEXAMINATION OF PREVIOUSLY LITIGATED PATENTS Lauren Drake* This Note explores the uncertainty and inequity created through the dichotomy approach to claim interpretation in the context of reexamination of previously litigated patents. To address this uncertainty and inequity, this Note argues that the claim interpretation determined in a Markman hearing should be binding on the U.S. Patent & Trademark Office (PTO) during reexamination of a previously litigated patent as a form of issue preclusion. To accomplish this result, this Note proposes three changes to current patent practice: first, the definition of “party” must be expanded to include the PTO; second, the PTO must abandon the broadest reasonable interpretation standard of claim interpretation when reexamining previously litigated patents; and third, Article III courts must deny motions to stay for the purpose of reexaminations.