• World Health Summit: Failing Business Models In AMR And Vaccination

    BERLIN — With antimicrobial resistance (AMR) on the rise worldwide there is no time to lose for developing new antibiotic drugs, experts said during one of the last panels of this year’s World Health Summit in Berlin Tuesday. As in several other rounds during the three-day event, industry representatives underlined that there is an issue with the business model due to high risk and low return of investment for research in this area.

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  • “WTO Must Not Be The Odd One Out” – Members Revive Talks On GIs, Genetic Resources

    Members of a 2008 World Trade Organization coalition are trying to rekindle a negotiation to provide the same level of protection granted to wines and spirits to other geographical indications, and to grant intellectual property protection to genetic resources and traditional knowledge. The discussion might not make it to the December WTO ministerial, but the group hopes to open a “fresh window” for discussion.

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  • The Most Dangerous Hire: Lessons from Waymo v. Uber

    Every trade secret case is built around a story. Sure, the plaintiff’s story is different than the defendant’s, even though each draws on the same facts. For the rest of us that don’t have a dog in the fight, helpful lessons are available. But sometimes you have to look hard to find them. Here’s one. When Waymo, the Google self-driving car company, filed its lawsuit against Uber earlier this year, the story was remarkable enough… This case is instructive for any business considering hiring an…

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  • Abstract Ideas: The Turnstile Keeps Spinning

    by Dennis Crouch Smart Sys. Innovations v. Chicago Transit Authority (Fed. Cir. 2017) In a split opinion, the Federal Circuit has affirmed the district court’s judgment on the pleadings – R. 12(c) – that the asserted claims of SSI’s four patents are invalid under Section 101 for claiming an abstract idea.  U.S. Patent Nos. 7,566,003, 7,568,617, […]

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  • PLACE (名詞)


    PLACE (名詞)

    –>take place

    $$ This locks the wires in place. / これにより、ワイヤを所定位置にロックする。(USP8112863)

    $$ Both devices 21 and 22 would already have their electrical connections in place (for example metal tracking on the sheets of the devices); / 両者のデバイス21、22は、所定の場所(例えば、デバイスのシート上の金属トラック)におけるそれらの電気的な接続を既に有するものとし得る。(USP5929562)

    $$ Such a system requires the user to be present in the same place as the transaction takes place. (USP7627895)

    $$ Once the locking plug 28 is in place, the cam handle 22 is operated. (USP7625134)

    $$ Pipelines are often used for carrying gases or liquids from one place to the other. (USP7635976)

    $$ This result is then shifted left one place. (USP7167887)

    $$ In place of the aluminium strip formation 35 and tab formations 38, shear pins may be located between the door 20 and frame 25. (USP5316334)

    $$ The key pad is held in the correct place using a cover. (USP6965789)

    $$ With a header file, the related declarations appear in only one place. (USP6691301)

    $$ Firstly an organisation employing people, such as home carers, who travel from place to place, can operate the system themselves. (USP6587551)


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  • Seaman on the VirnetX v. Apple Enhanced Damages Opinion

    This past Tuesday I wrote that “reports are coming in that Judge Schroeder (Eastern District of Texas) on September 29 entered a memorandum opinion and order awarding VirnetX $41.3 million in enhanced damages and another $96 million in costs, attorneys’ fees, and interest, on top of a damages award $302 million, in a suit against Apple.  For coverage, see, e.g., this story on Ars Technica.  Apparently the opinion and order have now been unsealed, but as of this morning it isn’t showing up on Lex Machina.”  Professor Christopher Seaman (Washington & Lee University) has now posted the opinion on Scribd and has authorized me to publish the following guest post summarizing it: 
    The district court found that Apple willfully infringed VirnetX’s patents by selling products that contained the accused features for a number of months (10 months for VPN on Demand, 5 months for FaceTime) after the initial jury verdict in 2012 found that Apple infringed and that the patents in suit were not invalid.  The court’s reasoning (see pp. 29-38) is focused on Apple’s post-verdict conduct, finding that “Apple’s continued sales after the verdict of products with the [infringing] features [was] unreasonably risky or reckless.”  (p. 35)  It rejected Apple’s claim that the PTO’s grant of a inter partes reexamination into the patents after the verdict made its conduct not willful/egregious (appeals of the reexam proceedings are still pending, but at least some claims of two of the patents-in-suit were cancelled by the PTAB in July).  Applying the Read factors (pp. 38-50), it awarded a 50% enhancement of the royalty rate during the relevant time frame, resulting an enhancement of approx. $41 million, even though the court concludes that “VirnetX has not presented any evidence of copying,” nor did it find any attempt to conceal the alleged misconduct.  The court also awarded attorney’s fees under 285 in part for VirnetX for the September 2016 trial.


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  • CAFC affirms ITC in Cisco/Arista matter

    From the case

    Cisco argues that inferring is a form of detection, and therefore Arista’s products infringe. The Commission, however, had before it evidence that showed that the accused functionality, ProcMgr, has no access to a subsystem’s configuration, and thus cannot definitely know whether a configuration has changed. For example, the ProcMgr system does “not have access to each agent’s configuration. Instead, ProcMgr only determines the last time the heartbeat file was updated.” J.A. 541. Evidence showed that ProcMgr can only infer a change but it does not know what the change was, only that a change may have occurred. J.A. 6070–71. Where, like here, there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” we affirm the Commission’s noninfringement determination. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). Because we affirm the Commission’s finding of no violation with respect to the ’597 patent, we do not reach Arista’s “alternative ground” for affirmance that the Commission should have reversed the ALJ’s determination that assignor estoppel barred Arista from challenging the ’597 patent under 35 U.S.C. § 101.

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  • Judge Linn’s dissent in Smart Systems; asserting majority engaging in "reductionist exercise"

    Judge Linn’s dissent in Smart Systems begins:

    The court once again concludes that the judicially crafted “abstract idea” exception to patent eligibility now renders invalid the asserted claims of four U.S. patents covering apparatus and methods created by human activity to overcome heretofore perceived limitations in the use of ordinary bankcards to access transit systems. The majority commits the same error as the district court in engaging in a reductionist exercise of ignoring the limitations of the claims in question and, at least with respect to the ’003 and ’617 patents, in failing to appreciate that the abstract idea exception—if it is to be applied at all—must be applied narrowly, consistent with its genesis. Because the representative claims of the ’003 and ’617 patents are not directed to abstract ideas under any reasonable application of the Alice/Mayo test, I respectfully dissent. Because the majority’s determination with respect to the representative claims of the ’816 and ’390 patents is consistent with past decisions finding ineligibility, I concur with that part of its decision, not because the inventions covered by the claims do not deserve patent protection but because I am bound by precedent to reach that conclusion.

    As to abstract idea:

    The narrow character of the law of nature and natural phenomenon exceptions is relatively self-evident, but the contours of the abstract idea exception are not easily defined. For that reason, the abstract idea exception is almost impossible to apply consistently and coherently. To determine whether a claim is patent ineligible as merely an abstract idea, the Supreme Court instructed that the inquiry may be broken into two parts or steps: first, determine if the claim is “directed to an abstract idea,” and second, consider whether the claim contains something more in terms of an “inventive concept.” Alice, 134 S. Ct. at 2355; Mayo, 132 S. Ct. at 1296–97. The problem with this test, however, is that it is indeterminate and often leads to arbitrary results. Moreover, if applied in a legal vacuum divorced from its genesis and treated differently from the other two exceptions, it can strike down claims covering meritorious inventions not because they attempt to appropriate a basic building block of scientific or technological work, but simply because they seemingly fail the Supreme Court’s test.


    Step one cannot be a hunt for the abstract idea underlying the claim, because underlying virtually every claim is an abstract idea. And if the task under step one is to assess whether the claim is directed to no more than an abstract idea, what is left for determination under step two? Where do you draw the line between properly determining what the claim is directed to and improperly engaging in an overly reductionist exercise to find the abstract idea that underlies virtually every claim? See Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d 1042, 1050 (Fed. Cir. 2016) (“At step one, therefore, it is not enough to merely identify a patent-ineligible concept underlying the claim; we must determine whether that patent-ineligible concept is what the claim is ‘directed to.’”).


    Ultimately, the fundamental question in “abstract idea” cases is whether the claim is directed to such a basic building block of scientific or technological activity as to foreclose or inhibit future innovation or whether the claim instead is directed to a tangible application that serves a “new and useful end.” Benson, 409 U.S. at 67; see also Diehr, 450 U.S. at 188 (“While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.” (quoting Mackay Radio, 306 U.S. at 94)). Claims directed not merely to basic building blocks of scientific or technological activity but instead to innovative solutions to real problems that result from human activity and are not capable of performance solely in the human mind should be fully eligible for patent protection and not lightly discarded.

    The dissent agreed on the 816 and 390 patents but noted:

    The inventions recited in the asserted claims of both of these patents are the result of human activity and facilitate the use of bankcards for a new purpose heretofore considered practically foreclosed. Regrettably, however, and for the reasons set forth in the majority opinion, our precedent leaves no room for such an argument. The claims of the ’816 patent and the ’390 patent are directed to what we have generally characterized as a “fundamental economic practice long prevalent in our system of commerce,” see Alice 134 S. Ct. at 2356. Such inventions are categorically rejected as “abstract ideas,” regardless of merit. While I disagree with such a categorical exclusion, I am bound by the precedent cited and relied on by the majority and, for that reason, am constrained to concur with the majority’s holding of patent ineligibility of the asserted claims of the ’816 and ’390 patents.

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