• Restricting Patents on New Combinations and Uses of Medicines Makes No Sense

    IP-skeptics charge that these inventions are little more than a way for pharmaceutical companies to cynically prolong patent life and maximize profits, without providing any meaningful innovation. This rather simplistic view misunderstands how the patent system works, and the role of patents in incentivizing drug discovery and development. In reality, many of today’s most significant medicines owe their existence to the ability of medical innovators to secure patents for novel new forms and new…

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  • PTAB Cannot Treat Pre-AIA Means-Plus-Function Limitations As Purely Functional Under the Broadest Reasonable Interpretation Standard

    IPCOM GMBH & CO. v. HTC CORPORATION: July 7, 2017. Before Prost, Clevenger, Chen. Takeaway: Pre-AIA §112 ¶ 6 (means-plus-function) claim construction analysis requires that the Board not only identify the particular claimed function, but also identify the corresponding structure, material, or acts that perform that function in the specification. …

    The post PTAB Cannot Treat Pre-AIA Means-Plus-Function Limitations As Purely Functional Under the Broadest Reasonable Interpretation Standard appeared first on CAFC Blog.

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  • Inspiration vs. Copying: Where’s the Line in Hollywood?

    When it comes to television shows, it not always clear what is “copyrightable.” Sometimes, filmmakers and screen writers can get into serious trouble if they don’t follow specific television copyright laws accordingly. Austin-based filmmaker Lex Lybrand watched the June 4th episode of the hit HBO series “Silicon Valley” to shockingly find strong similarities between the episode “The Patent Troll” and his own film “The Trolls.” Jed Wakefield of Fenwick & West recently sat down with…

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  • ASA update, Pottinger & Guptas, Ethiopia’s bootleggers and the world’s largest battery

    Friday first week of July, Africa’s Dimension Data sponsored Tour de France team lost Mark Cavendish; Wimbledon 2017 features Africans from Tunisia, Zimbabwe and South Africa; FIFA has banned Sudanese football clubs from participating in African football competitions, Africans appear on both teams in the Lords cricket test, and CJ Stander turns out in red in New Zealand.

    But the “biggest” news of all involves a small town in the Southern Australia, called Jamestown after Africa born and educated Elon Musk (right) announced that the world’s largest lithium ion battery will be built there! Read more about that here and here.

    For those readers following the resurgence of the ASA in South Africa, considerable progress has been made. The following companies have come to the party by pledging between them in excess of R4million  (roughly 50% of their immediate requirements) to help fund the ASA:

    JHNet Web Development; McDonald’s; Gendel Strategic Marketing Group; J Walter Thompson – Cape Town; TopCo 500; TBWA\Hunt\Lascaris; Brand et al; MAKRO; 99c; King James; Promise Group; Clover South Africa; GWK; Pack Leader Pet Foods; Colgate-Palmolive; Pioneer Foods; KIA Motors SA; MTN; SC Johnson; Boxer Superstores; Joe Public; McCann World Group; Wuma Dog Food; Montego Pet Nutrition. Legal firm ENSAfrica has also pledged its support behind the campaign.

    Acting CEO Gail Schimmel is pleased with the progress to date saying that there may soon come a time when she has to close the promotional offer to supporters. Basically, if you want to show allegiance to the appeal for an independent regulatory authority, now is the time.

    The Economist ran a storyon Ethiopia’s ingenious bootleggers highlighting what they regard as endemic culture of IP theft in the country. They hail ATM style kiosks allowing transfer of pirated music and movies as “the brainchild of three Ethiopian science graduates”. East African blogger Afro-Gore says this is opportunism and no different to what has happened elsewhere, eg  Piratebay, and that IP rights have been successfully enforced in Ethiopia. Don’t write off Africa’s second most populous, and oldest independent country!

    Yesterday UK based PR firm Bell Pottinger issued an apology to the citizens of South Africa for spreading fake news that had incited racial violence in their work for Gupta owned Oakbay. To readers not familiar with this story, BusinessLive contains the gist of it  here and the commentary will give you an idea of the vitriol that exists against the firm. Locally, the main banks have refused to work for Oakbay over their unique relationship with the President. Afro-Buff wonders if the legal community, including advocates, will take the lead and refuse briefs to represent Oakbay and/or Pottinger, and whether CIPC could refuse to register their IP?

    Error: the original post said South Africa and not Southern Australia in reference to the lithium battery development! “SA”is short for both and there is also a Jamestown in SA. This post has been updated to reflect the correct position – apologies though I am.pleased to say Elon Musk is still African. That is no mistake.

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  • Federal Circuit Vacates Board’s Lack of Written Description Holdings in Interferences

    The Federal Circuit vacated three interference decisions, in which the Board found that Stanford’s claims were unpatentable for lack of written description, and remanded for further proceedings… The Court thus vacated the interference decisions and remanded for the Board to (1) “reconsider whether Quake’s relevant patents and applications satisfy the written description requirement” and (2) examine whether the artisan “would have known, as of the priority date, that the … specification…

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  • James F. Haley, Jr. to Join New Patent Firm New Firm as Ropes & Gray Restructures IP Rights Management Practice

    Ropes & Gray has announced that senior counsel James F. Haley, Jr., one of the most distinguished intellectual property lawyers in the country, is joining as a name partner a new firm being established by Ropes & Gray partners to focus on world-wide IP rights management, including patent counseling, opinions, strategy, prosecution and litigation support. The announcement of Mr. Haley’s move comes as the new firm—to be called Haley Guiliano LLP—prepares to launch later this year.


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  • The Judicial Oath

    We often see pictures of judges or justices being sworn-in; but, we rarely have a chance to observe the words of the judicial oath.  Pursuant to 28 U.S.C. §453:

    Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: “I, ___ ___, do solemnly […]

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  • BURDEN 負荷・負担


    BURDEN 負荷・負担

    $$ Another method of reducing the computational burden, without sacrificing optimality, is to use sequential processing of the pixel information in the valid measurement vector [10]. / 最適性を犠牲にすることなく、計算負荷を低減する他の方法は、有効測定ベクトル(10)におけるピクセル情報のシーケンシャル処理を使用することである。(USP7029172)

    $$ This reduces the burden on unskilled users to set quantitative pictorial search parameters or to select images that come closest to meeting their goals. / これは、定量的な画像サーチパラメータを設定するため、あるいは自分の目標を達成するのに最も近い画像を選択するための、未熟なユーザにかかる負担を軽減する。 (USP7593602)

    $$ In Sust et al, the inclusion of FFT processing was seen as an additional burden on the processor, and therefore the FFT was kept as small as possible. (USP6898176)

    $$ The apparatus not only provides greater accuracy in proving "due proof of execution" but also enables the burden of proof to be discharged more effectively. (USP5774571)

    $$ These computational tasks tend to burden the rendering process. (USP5727192)

    $$ The window used to derive the direct arrival signature was chosen to avoid the more complicated parts of the overburden. (USP5260911)

    $$ The Master execution engine is typically a much slower implementation than the Slave execution engine and in addition is burdened with the majority of the costs of this invention. (USP02029357)


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  • Claim Construction: Sweeping Reasonableness Under the Rug

    by Dennis Crouch Hitachi Metals v. Alliance of Rare-Earth Permanent Magnet Industry (Fed. Cir. 2017) (nonprecedential decision) Rare-earth magnets are the strongest commercially available permanent magnets.  Hitachi’s U.S. Patent Nos. 6,491,765 and 6,537,385 are directed to important commercial methods of pulverizing an alloy in order to prepare a powder then used to make the magnets. Hitachi had previously […]

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  • EU Parliament Adopts Marrakesh Treaty; Blind Union Prepared To Fight Publisher ‘Compensation’

    The European Parliament today with over 600 votes adopted the legal instruments to ratify the Marrakesh Treaty on access to reading material for the visually impaired. The treaty, adopted by the members of the World Intellectual Property Organization in 2013 and effective since last year, has been subject of controversies due to lobbying from publishers in the European Union, members of Parliament said today in Strasbourg before the vote. EU member states after today’s vote have one year to implement.

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  • CAFC gives mixed decision in Hitachi v. Alliance

    The outcome

    Hitachi Metals, Ltd. (“Hitachi”) appeals from final
    written decisions of the U.S. Patent and Trademark Office
    (“the PTO”) Patent Trial and Appeal Board (“the Board”)
    in two inter partes reviews (“IPRs”), concluding that
    claims 1, 5, and 6 of U.S. Patent 6,537,385 (“the ’385
    patent”) and claims 1–4, 11, 12, and 14–16 of U.S. Patent
    6,491,765 (“the ’765 patent”) would have been obvious at
    the time of their respective inventions and that claim 1 of
    the ’385 patent was anticipated. See All. of Rare-Earth
    Permanent Magnet Indus., IPR 2014-01265, 2016 Pat.
    App. LEXIS 1082, at *41 (P.T.A.B. Feb. 8, 2016) (“’385
    Decision”); All. of Rare-Earth Permanent Magnet Indus.,
    IPR 2014-01266, 2016 Pat. App. LEXIS 1083, at *56
    (P.T.A.B. Feb. 8, 2016) (“’765 Decision”). For the reasons
    set forth below, we affirm in part and vacate and remand
    in part.

    KSR is invoked

    In light of the foregoing, the Board found that the
    claims were directed to nothing more than a “combination
    of prior art elements according to known methods to yield
    a predictable result.” ’385 Decision, 2016 Pat. App.
    LEXIS 1082, at *21, *24. The Supreme Court has advised
    that a combination of known elements is likely to be
    obvious when it yields predictable results. KSR, 550 U.S.
    at 416. And substantial evidence supports the Board’s
    findings that the prior art elements were well-known, one
    of ordinary skill would have known how to combine them,
    and the results of so doing would have been predictable.
    See ’385 Decision, 2016 Pat. App. LEXIS 1082, at *18, *20,
    *27, *39.

    The Board’s analysis of claim 4 is questioned:

    Thus, we reverse the Board’s construction of claim 4
    and conclude that it requires a high-speed flow of gas
    (claim 3) comprising oxygen (claim 4) for the “fine pulverization”
    that occurs in the first sub-step—for example, by
    “pulverizer 14” shown in Figure 2. Under the correct
    construction, the Board’s obviousness determination as to
    claim 4 must therefore be vacated. The Board premised
    its finding that Ohashi’s use of an air stream for particle
    classification (the second sub-step) taught the limitations
    of claim 4 on its interpretation that claim 4 requires a
    high-speed flow of gas for the umbrella step and that the
    two sub-steps constitute one continuous process under the
    umbrella step. Under that interpretation, the Board
    found that Ohashi’s disclosure of a high-speed flow of gas
    for the second sub-step constituted a teaching of gas for
    the entire umbrella step. But the correct construction
    precludes such a finding. Ohashi’s use of an air stream
    for particle classification only cannot meet the limitation
    of claim 4, which requires the use of a high-speed flow of
    gas comprising oxygen for fine pulverization.
    Therefore, because we reverse the Board’s claim construction,
    we vacate its obviousness determination as to
    claim 4 and remand for further consideration under the
    proper construction.

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  • Supreme Court of Canada rules on Promise Doctrine in favor of Pharma Patent Owners

    The Supreme Court of Canada issued a ruling in AstraZeneca Canada Inc. v. Apotex Inc., which gives patent owners a far greater ability to protect their intellectual property in the face of Canada’s Promise Doctrine, a part of Canadian patent law that requires an invention to be “useful” in order to be patent-eligible subject matter. The ruling is being heralded by patent owners, especially those in the pharmaceutical space, and it provides an interesting juxtaposition in contrast to recent…

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