• More Harvard

    A post at Inc. titled Meet the 10 Harvard Students Who Just Ruined Their Lives does not introduce the reader to any of “the ten” now un-admitted members of Harvard’s class of 2021.The post raised a privacy issue:Second, while neither The Crimson nor…

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  • USPTO’s Michelle Lee has resigned

    Michelle Lee has resigned. Fortune wrote:

    Lee has been viewed favorably by the technology industry for ushering in more stringent standards for software patents. More than 50 companies, including Facebook Inc and Cisco Systems, sent a letter to President Donald Trump and U.S. Secretary of Commerce Wilbur Ross in April urging them to retain Lee as director of the patent office.
    The companies said in the letter that Lee’s efforts at the patent office had led to a decrease in abusive litigation filed by so-called “patent trolls.”The Trump administration has yet to put forth a nominee for the position, which required Senate confirmation

    link: http://fortune.com/2017/06/06/patent-trademark-office-michelle-lee-resigns/

    Ned Heller wrote unfavorably of Lee at patentlyo:

    1. Slow-walking Alice/Mayo shows me that she [Lee] is committed to issuing patents that violate 101. It is JOB #1 to adopt conservative positions on patent law issues that the cases can be bubbled up to the courts for decision. But slow walking Alice/Mayo, Lee is violating the public trust and taking the LAW into her own hands. Just for this, she should be fired, and pronto.

    2. She didn’t do scratch about the PTAB — she cooked the books instead. How she cooked the books has been ably described over at Gene’s site.

    All told, Lee did nothing to rock the boat vis-a-vis the PTO’s “clients.” That’s right, the people who lobby the PTO to further their own private interests at the expense of the public interest. For that too, she should be fired.

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  • Garmin hit with $37M fine from ITC over violations of cease-and-desist order on sonar products

    Garmin Ltd. (NASDAQ:GRMN) will likely be the target of a $37 million fine levied by the U.S. International Trade Commission (ITC). The fines result from Garmin’s business activities in marketing marine sonar imaging devices in violation of a cease-and-desist order resulting from a Section 337 patent infringement investigation.

    The post Garmin hit with $37M fine from ITC over violations of cease-and-desist order on sonar products appeared first on IPWatchdog.com | Patents & Patent Law.

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  • More Impressions About Patent Exhaustion

    Daniel Hemel and Lisa Larrimore Ouellette
    Cross-posted at Whatever Source Derived

    As we explained last week, the full impact of the Supreme Court’s decision in Impression Products v. Lexmark will depend on whether courts are willing to view creative patent transactions as licenses (which do not exhaust the patentee’s rights) rather than sales (which, after Impression, now do). While it is too early to answer that question, we can already anticipate answers to two related questions regarding Impression’s impact: (1) What does the decision mean for pharmaceutical prices in the United States and abroad?; and (2) How will Impression affect information costs in markets for patented products? With respect to the first question, we expect that Impression will put upward pressure on pharmaceutical prices in developing countries—and downward pressure on prices in the United States—notwithstanding the fact that the importation of drugs from abroad will remain illegal under most circumstances. As for the second question, we are skeptical that Impression will have a substantial effect on information costs in markets for patented products, notwithstanding some of the enthusiastic commentary in the technology press immediately after the decision.

    Below, we explain both of these conclusions in more detail.

    1. What does Impression mean for pharmaceutical prices in the United States and abroad?

    We’ve written before that a decision in favor of the petitioners in Impression would raise the price of patented other products in less developed countries. We’ve emphasized that the decision will potentially affect not just for pharmaceutical prices, but also prices for products like the low-cost XO tablet. We have yet to encounter any real rebuttal to our claim that a ruling for Impression will lead to higher prices of non-pharmaceutical patented products in less developed countries. The effect of the Impression decision on pharmaceutical prices is somewhat less clear.

    As Erika Lietzan explains in an excellent overview of the U.S. drug importation regime, it is illegal to import pharmaceutical products from abroad under most (though not all) circumstances. Even so, the illegality of importation doesn’t mean there are no imports. Americans spent over $1 billion on Canadian drug imports in 2003, and the number is surely higher today with over 3,400 online pharmacies like canadadrugs.com. Brand-name companies have used patent litigation to stem this flow; now they must rely on discretionary government enforcement. And patent issues have long been viewed as a hurdle to proposals to legalize drug importation, which may now gain more traction.

    2. But isn’t there at least going to be a substantial benefit in terms of reduced information costs regarding patent rights?

    Perhaps. The Supreme Court said that “[t]he inconvenience and annoyance to the public that [post-sale restrictions] would occasion are too obvious to require illustration,” and then illustrated the point anyway with a hypothetical car repair shop for which the “smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale,” leading to the “threat of patent liability.”

    While compelling prose, this glib discussion fails to recognize the complexity of the issue, including the lack of evidence to support this “obvious” conclusion. Under the Court’s logic, the flow of commerce should have long since sputtered: post-sale restrictions have been clearly permissible for at least the past twenty-five years. And while Impression certainly eliminates some information costs, repair shops must still bear many information costs to ensure their activities are noninfringing, such as checking for patent rights owned by parties who did not authorize the initial sale. This concern is far from hypothetical; indeed, an earlier Supreme Court case found liability for repairing an infringing convertible top. But it is more difficult to credibly claim that this problem has “clog[ged] the channels of commerce,” given the lack of concrete examples of significant information-cost externalities in the amicus briefs and at oral argument.

    Of course, the more willing courts are to recognize transactions as licenses rather than sales, the greater the information costs will be on downstream users of patented technologies—undermining this benefit of the Court’s decision, but also mitigating the harms of broader patent exhaustion. As Guy Rub concisely put it, the court has merely kicked the can down the road, delaying the choice between the tradeoffs that patent exhaustion inevitably presents.

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    "based on V-ing" の頻度は低めのようである

    $$ The leading edge of the collation passes through the first roller pair 510 and into a buckle chute 511 until it reaches an adjustable stop 512, here constituted as a pinch roller pair 513 which selectively stops the collation based on detection of the leading edge position. (USP7306220)

    $$ These drawings are based on calculations involving an n-type InSb layer 53 with donor impurity concentration of 10.sup.16 cm.sup.-3. / これらの図面は、ドナー不純物濃度1016cm-3のn型InSb層53に関する計算に基づいている。(USP6809514)

    $$ A preferred feature is that a user who placed a bid by telephone may be automatically notified whether or not he or she has won based on recognition of the line identifier when the user calls a given number. / 好ましい特徴は、電話機により入札を行うユーザは、ユーザが所定の番号を呼ぶ時にライン識別子の認識に基づいてユーザが競りに勝ったか否かを自動的に通知されることができる。(USP7577676)

    $$ The embodiments described herein are principally concerned with the retrieval of files based on the recognition of a physical object. / ここに説明されている実施形態は、主に物理的なオブジェクトの認識に基づいたファイルの取り出しに関する。(USP7578441)

    $$ Antisense technology can be used to control gene expression through triple-helix formation (see below) or antisense DNA or RNA, both of which methods are based on binding of a polynucleotide to DNA or RNA. / アンチセンス技術を用いて、三重鎖ヘリックス形成(以下を参照)またはアンチセンスDNAないしRNAを介する遺伝子発現を制御することができ、この何れの方法もDNAないしRNAにポリヌクレオチドが結合することに基づいている。(USP7615210)

    $$ The deposition apparatus is based upon magnetron sputtering sources in which the ion current driven towards the samples is carefully controlled. / このデポジション装置は、マグネトロン・スパッタリング・ソース(magnetron sputteringsource)を基本とし、サンプルに向けて駆動するイオン電流を注意深く制御する。 (USP6383565)

    $$ Other concepts have been based on micro-optical electromechanical systems (MOEMS or MEMS) exploiting the physical movement of mirror groups within the device. / 他の構想は、デバイス内でミラー群の物理的運動を利用する微小光学電気機械システム(MOEMSまたはMEMS)を基本としてきた。(USP6980362)

    $$ Alternative structures are possible, based on the use of solid silicon cavities. / 中実シリコンキャビティの使用を基本とした、別の構造が可能である。(USP6980362)

    $$ Accordingly, a pricing structure can be adopted which is based on charging a relatively small amount for many enquiries rather than a relatively large amount for a limited number of enquiries. (USP5727201)

    $$ Other prior proposals have been based on using panels of expanded or foamed polystyrene edge-mounted in housings and also rely primarily on pistonic action. (USP6332029)

    $$ This preferred embodiment is made of plastic. Selection of the type of plastic is based on achieving a number of goals: (USP02069615)


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  • Michelle Lee Resigns as PTO Director

    USPTO Director Michelle Lee has announced her resignation — noting that “It has been the professional experience of a lifetime [and] a true privilege serving our country by supporting what I believe to be some of America’s greatest heroes—our inventors and entrepreneurs.”  The resignation appears to be effective immediately. Prior to joining the USPTO, Lee was […]

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  • Biotechnology Stock Value: Uncertainty the New Normal or Just the Same Old Deal?

    In a recent article in the Wall Street Journal, What’s Behind the Biotech Sector’s Rebound: Biotech ETFs are Getting Hearts Pumping Again, Gerrard Cowen discusses the swings in the value of biotechnology stocks.  Last year was a relatively poor year for biotech stocks—perhaps attributed to the election campaign rhetoric about reforming drug prices.  This year biotech stocks are looking up, and why?  The article discusses several reasons provided by experts: 1) Trump was elected and he’s likely to treat the sector more favorably than Clinton despite his rhetoric; 2) merger and acquisition activity is likely to increase in the coming year because of likely Trump tax changes; 3) Trump may streamline FDA regulations; and 4) biotech companies were undervalued last year.  The article also outlines risks to the sector which mostly revolve around problems with uncertain politics and difficulty in valuation. 

    Interestingly, the article notes that despite difficulty with valuation one helpful baseline, so to speak, is “patent protection.”  I can understand why the author points to the exclusivity of patents—supposedly hugely important to the industry—as a “steadying” factor especially when compared to other industries where perhaps patent protection may not protect a market as well as in biopharmaceuticals.  However, patent protection in the U.S. has been anything but stable.  Indeed, as one example, patent eligible subject matter is a mess and efforts to “clean it up” are moving through the U.S. Congress championed by American Intellectual Property Law Association and the Intellectual Property Owners Association.  If those proposals are enacted, it will be interesting to see how the U.S. Supreme Court interprets those provisions.  And, what of the future of trade agreements?  The basic point is that patent law is ever evolving and despite that change the belief in its ability to protect a market continues—and thus draws capital for hopefully socially productive uses.  The belief may align well with reality for the biopharmaceutical industry.  For more on belief and patents, see Professor Mark Lemley’s article Faith-Based Intellectual Property

    And, for more on politics and patents, what about the security of patents (and trade secrets)?  Will things change substantially in the coming years?  One article I find particularly interesting is Professor Richard Epstein’s The Constitutional Protection of Trade Secrets and Patents Under the Biologics and Price Competition Act of 2009 

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