Fixing America’s Patent System is the Best Strategy to Jump-Start our Stalled Economy

Fixing America’s patent system is necessary for meaningful economic growth for America’s workers and America’s global competiveness over countries like China. Not surprisingly, Judge Michel thinks that “[w]hile we’ve been weakening our patent system in many ways in recent years, China and other countries have been greatly upgrading their patent systems . . . investment is shrinking here and it’s growing elsewhere.” Judge Michel kept returning to the theme that the lack of new jobs “is the…

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  • Hubbs, Enatsky & Auito Expands IP Law Firm in Northern Virginia and Japan

    The firm has more than doubled in size with the addition of Darrin Auito, Hirotsuna Yamashita, Jessica Harrison, and James Judge. These new members bring many years of experience as counsel at top 25 law firms and examiners and senior level staff (SME and Central Reexamination Unit Supervisor) at the United States Patent and Trademark Office (USPTO) and the Japan Patent Office (Chief Appeal Examiner and Director).

    The post Hubbs, Enatsky & Auito Expands IP Law Firm in Northern Virginia…

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  • ARRANGED (倒置)


    ARRANGED (倒置)


    $$ Arranged in the wall 62, 64 of the outer portions are six equidistantly spaced ports 66, 68. (USP7628213)

    $$ Arranged after the device 71 in the sense of rotation of the drum 67 is a detector bank 125 which detects the absence of a lid from its intended position on the drum 67 and prevents the corresponding carton from being filled at the station 65. (USP5651235)

    $$ Arranged about the bolt 16 is a pivotal sleeve 17 which receives the forward end of tilling apparatus frame member 18. (USP5454434)

    $$ Arranged at a first end of the exterior tube is a cooling water inlet pipe 33 whose longitudinal axis is in the same plane as the longitudinal axis 50 and the major axis 40 of the exterior cylinder 20. (USP02025282)


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  • Coe v. U.S.

    I was researching an issue in the Chisum treatise the other day and stumbled upon the Coe v. U.S., 84 F.2d 240 (D.C. Cir. 1936) case.  I thought it might be of historical interest to some.  It was a rare use of a writ of mandamus to require the Patent Office to take action — […]

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  • The Indie film industry: still looking for its long tail

    What happened to the idea of the “long tail“, as popularized by Chris Anderson over a decade ago? The very fact that this blogger feels the need to revisit the notion suggests the extent to which it has fallen into disfavor. In brief, Anderson’s idea contrasted the manner by which goods are typically sold in a bricks-and-mortar environment from the potential for distribution in an on-line world. The principal limiting factor in a bricks-and-mortar setting is that only a small number of products can be displayed in any given store; even within these displays, the specific placement can materially affect the sales potential of that good.

    What follows is that only a small number of products will be available for purchase and success is built on selling a large quantity of these limited product options. Thinking in terms of a statistical distribution, from the point of view of product sales, the two tails fall very quickly from the elevated and narrow central tendency. There are few sales beyond those enjoyed by the small number of market leaders.

    By contrast, in a long-tail world, where digital distribution allows an almost unlimited number of products that can be displayed on digital “shelves”. As such, as explained by Investopedia,

    “… products in low demand or with low sales volume can collectively make up a market share that rivals or exceeds the relatively few current bestsellers and blockbusters but only if the store or distribution channel is large enough.”

    In other words, the sales of these items take place at the tails of the distribution. Unlike the bricks-and-mortar situation, consumers are navigating to on-line commerce, favoring niche products and markets over traditional main types.

    As such, as optimistically characterized by Investopedia

    “…the demand overall for these less popular goods as a comprehensive whole could rival the demand for mainstream goods. While mainstream products achieve a greater number of hits through leading distribution channels and shelf space, their initial costs are high, which drags on their profitability. In comparison, long tail goods have remained in the market over long periods of time and are still sold through off-market channels. These goods have low distribution and production costs, yet are readily available for sale.”

    The problem with the notion is that it has proved difficult, extremely so, to identify instances where the long tail has taken place. A reminder was reported in the February 25th issue of The Economist (Print title: “Indie blues: happy ends are rarer than ever for those trying to profit from Indie films”) in connection with the indie cinema industry. Short for “independent”, the indie film business refers to a movie that has been produced outside the major film studio framework. Distribution will also likely take place outside the major channels. Indie films are also usually characterized by lower production costs, limited first release and greater diversity of artistic expression.

    While not common, an indie film on occasion can rival a film produced by a major studio, if it has sufficient financial backing, effective distribution and promotional buzz. The winner of the most recent Oscar awards was best picture was “Moonlight”, which shares indie film characteristics. Another indie movie that received an Oscar was the film “Manchester by the Sea.” With movie-watching no longer solely a cinema-based activity and on-line viewing taking place via a number of digital platforms, one might be tempted to imagine that the long tail model has been a boon to the indie film business.

    According to the article, however, the answer would appear to be “no”. In the words of the piece—

    “For every success story, there are thousands of indie films that go unwatched. The digital age has made it easier than ever to make a film, but also harder than ever to break through the clutter of entertainment options to an audience. Chris Moore, a producer of “Manchester by the Sea”, compares the output of indie films now to trees falling in the forest. ‘Nobody is making a dollar off this business’, he says.”

    It turns out that for all the on-line options, success of an indie film still tends to rely on exposure to a cinema theatre audience, which is diminishing, especially among young viewers, and the DVD market, which is in freefall. Seen in this way, indie films look a lot like their major studio competitors, just less expensive in the making and with even a lesser likelihood of success.

    But what about the potential for the long tail to ultimately make-up for these headwinds. Again, in the words of the magazine—

    “But most minor films disappear online, since a viewer can scroll through only so many options. Even the streaming sites themselves, says Anne Thompson of IndieWire, a website, admit that ‘a cold start on one of their platforms can be very cold indeed’”.

    All in all, it would seem that, as far as the indie film business is concerned, the long tail is no tail at all.

    Photo on lower left by Alex Dunkel

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  • Program on Ethics in the Practice of Intellectual Property Law

    The John Marshall Law School Center for Intellectual Property, Information & Privacy Law will be holding its 8th Annual Program on Ethics in the Practice of Intellectual Property Law from 8:15 am to 1:30 pm on May 5, 2017 in Chicago, IL. The conference will consist of the following sessions: • What IP Lawyers Should Know About ARDC Proceedings and Client Complaints • Ethical Issues Faced by In-House IP Counsel • Conflicts of Interest in IP Practice • Ethical Issues for IP Lawyers Regarding Cybersecurity & Data Privacy and Protection • Ethical Issues in Patent Litigation • Ethical Issues in…

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  • Mixed result in IPR v. ZTE

    Of interest in the ZTE case:

    review under the APA is subject to a harmless-error rule
    by virtue of the directive of 5 U.S.C. § 706 that “due
    account shall be taken of the rule of prejudicial error.”
    See Shinseki v. Sanders, 556 U.S. 396, 406, 409 (2009)
    (explaining that § 706 requires the party challenging an
    agency decision on appeal to demonstrate the harmfulness
    of the asserted error). Here, we need not decide
    whether ZTE’s position on reply was a shift or a clarification
    because IPRL has not shown that it suffered harm
    from the process it challenges.

    As to claim 8:

    The Board then seemed to hold that claim 8 would
    have been obvious because “Jawanda explicitly states that
    the wireless data connections could be provided by a code
    division multiple access (CDMA) network.” Id. at *18
    (quoting Pet’r’s Reply 13) (internal quotation marks
    omitted). The logic of the Board’s analysis is wanting.
    As noted, the Board found earlier that Jawanda did
    not disclose “maintain[ing] a communication session” at
    all: the Board relied wholly on the GPRS standard for
    that limitation. Moreover, the Board cited no prior-art
    reference that discloses that CDMA networks at the time
    of the invention could “maintain a communication session”
    according to the claims. Accordingly, the Board
    must have held that it would have been obvious to combine
    the PDP Context feature of the GPRS standard that
    enables the subscriber unit to “maintain a communication
    session” with a CDMA network. We do not see the support
    for that inference.


    While that testimony may
    establish that, at some point, there was a reason to combine
    the PDP Context feature with CDMA protocols, it
    does not provide that reason or show why the references
    cited or the knowledge of one of skill in the art at the time
    of the invention would motivate a skilled artisan to alter
    the standards with a reasonable expectation of success.
    Nor does Dr. Stark’s testimony establish that, at the time
    of the invention, the CDMA standard already included the
    “maintain a communication session” limitation.

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