• How to Create Patent Rights

    Intellectual property is distinguished from “real property” because the property itself exists in our heads and needs to be “created” through a process of description and examination. If approved and granted, your property is described in a proxy form such as a patent, copyright registration, or trademark registration. There is no livery of seisin ceremony. You cannot walk the property line of your patent or plant a garden in your copyright registration. To get a patent, you have to…

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    $$ The advantage of this embodiment of the invention is that it ensures that individuals will not travel towards a site of danger but will merely be alerted to the need to take action. / 本発明のこの実施態様の利点は、個人は、危険な場所に向かって移動するのではなく、単に行動を起こす必要があると警告されているだけであることを確実に示すことである。(USP6201470)

    $$ Because of this danger, the Montreal Protocol was signed that bans the use of CFCs. (USP7637260)

    $$ Such sites can be protected by surface to air missile (SAM) systems but such systems present great potential danger, especially to aircraft passengers. (USP7225063)

    $$ In many cases the arrangement can be operated with up to 80% of the trip current without danger of it tripping. (USP6404608)

    $$ In the absence of file access control there is a danger of file corruption, regardless of whether the invention is in use or not. (USP5675725)

    $$ Accordingly, an alarm is not generated during such landings and takeoffs, but is effective during cruise flight when the danger of drowsiness is greatest. (USP4879542)

    $$ If this inadvertent operation is carried out whilst the vehicle is travelling at speed then there is a danger of the door opening with obvious safety implications of the occupants of the vehicle. (USP02074809)


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  • Senate confirms dozens of Trump nominees, including new IP Czar

    Vishal Amin was confirmed to be the IP enforcement coordinator at the White House and Peter Davidson was confirmed to be general counsel at the Commerce Department. Amin had been a lawyer for Congressman Lamar Smith (R-TX) working on the AIA and then for Congressman Bob Goodlatte (R-VA) working on the Innovation Act. Therefore, Amin has been in the middle of IP legislation since President Obama took office in January 2009. Before that he worked in the Bush White House and Commerce Department on…

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  • "A Lion Walks Among Us"

    On 3 December 1961, the episode “A Lion Walks Among Us” of the ABC television series “Bus Stop” was broadcast. With the resultant firestorm, this was the only time this episode was broadcast on commercial television and it is not available on DVD. AB…

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  • Homeland wins appeal at CAFC against Whirlpool

    Homeland Housewares, LLC (“Homeland”) petitioned the United States Patent and Trademark Office Patent Trial and Appeal Board (“Board”) for an inter partes review of claims 1–16 of U.S. Patent No. 7,581,688 (“’688 patent”), which is assigned to Whirlpool Corporation (“Whirlpool”). The Board did not construe the key term “settling speed” found in the claims and determined that the claims were not invalid as anticipated by prior art reference U.S. Patent No. 6,609,821 (“Wulf”). Homeland appeals. We reverse.

    Of anticipation

    Anticipation is a two-step analysis. The first step is properly interpreting the claims. Beachcombers v. WildeWood Creative Prods., Inc., 31 F.3d 1154, 1160 (Fed. Cir. 1994). The second step is determining whether the limitations of the claims, as properly interpreted, are met by the prior art. Id. The Board determined that Wulf did not anticipate the ’688 patent because its disclosures did not meet the “settling speed” limitation. J.A. 14. However, the Board did “not adopt any explicit construction of the term for [its] Final Written Decision,” J.A. 7, even though the parties disagreed as to claim construction.2 Just as district courts must, “[w]hen the parties raise an actual dispute regarding the proper scope of . . . claims, . . . resolve that dispute,” O2 Micro Int’l Ltd. v. Beyond Innovation Tech. Co., 521 F.3d 1351, 1360 (Fed. Cir. 2008), the Board also must resolve such disputes in the context of IPRs. See CSR, PLC v. Skullcandy, Inc., 594 F. App’x 672, 678 (Fed. Cir. 2014) (holding that “[t]he Board erred by failing to construe ‘threshold value’ as it is used
    in claims 1–6 before finding that [prior art reference] Smith failed to disclose a ‘threshold value’” in anticipation). Given that the Board did not rely on extrinsic evidence here as to claim construction, we can determine the correct construction of “settling speed” and then determine whether the Board correctly held that Wulf does not meet the limitations of claim 1. Teva, 135 S. Ct. at 841.

    “[T]he claim construction inquiry . . . begins and ends in all cases with the actual words of the claim.” Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1248 (Fed. Cir. 1998) (citations omitted). Here, the relevant language of claim 1 provides that during pulsing, “the speed of the cutter assembly is reduced from the operating speed to a predetermined settling speed.” ’688 patent, col. 7 ll. 15–17 (emphasis added).


    The words of a claim are generally given their ordinary and customary meaning. Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005). In some cases, the ordinary meaning of claim language may be readily apparent and claim construction will involve little more than the application of the widely accepted meaning of commonly understood words. Id. at 1314. Here, it is undisputed that the plain meaning of “predetermined” is to determine beforehand. This plain language definition does not require that a predetermined speed be empirically determined for each use, depending on the particular blender or the individual contents of the blender. Claims must also be read in view of the specification, of which they are a part. Phillips, 415 F.3d at 1315. While the specification refers to an embodiment of the invention in which “a predetermined settling speed” is empirically determined and varies depending on blender use, the process for empirically determining a settling speed is neither taught in the specification nor a part of the claims. The claim language only requires “a predetermined settling speed,” and does not require empirically determining a particular settling speed for a particular blender or a particular blender load.

    There was a dissent.

    NEWMAN, Circuit Judge, dissenting. The court today rewrites the claims of the ’688 patent, adopting a “claim construction” that states the invention more broadly than did the patentee. The court then holds its broadened claims anticipated by the prior art, on which the patentee has provided an improvement that is not shown in the prior art.


    The court’s rejection of the Board’s finding that the claims are not anticipated is based on an incorrect understanding of the claims, coupled with an unwarranted enlargement of the references. The ’688 patent is directed to an improvement in blender technology, an improvement explained in the specification and by unrebutted expert testimony. My colleagues make their own findings, construe the claims to broadly include the prior art, and then invalidate the claims based on their unduly broad claim construction.

    Substantial evidence:

    The Board’s findings are supported by substantial evidence; the majority does not show otherwise.2 As reiterated in Apple Inc. v. Samsung Electronics Co., Ltd., “such fact findings are indisputably the province of the [factfinder].” 839 F.3d 1034, 1039 (Fed. Cir. 2016). The structure of the post-grant administrative process assigns to this court the traditional “appellate function . . . limited to deciding the issues raised on appeal by the parties, deciding these issues only on the basis of the record made below, and . . . requiring appropriate deference be applied to the review of factfindings.” Id.; see also Cutter v. Wilkinson, 544 U. S. 709, 718, n.7 (2005) (“[W]e are a court of review, not first view.”). The panel majority does not discuss the substantial evidence on which the Board’s decision was based, ignores the unrebutted expert evidence, and in general oversteps the appellate role.

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