• Zimbabwe: African Resilience Shines Through

    Brenda Matanga  sent Afro-IP a message today to re-assure the IP community and investors that Zimbabwe remains open for business.

     

    Its business as usual” she exclaimed as she updated on the Zimbabwe Institute of Patent & Trade Mark Agents’ talk this afternoon on the procedure for trade mark oppositions at ARIPO. She described the attendance as being a “full house of IP practitioners” including the Deputy Chief Registrar who made a presentation.
     
    “We are good. … Zimbabweans just calmly getting along as if nothing is happening. Just playing it by the ear too… but we are working.”
     
    Earlier today, @DarrenTOlivier tweeted “I am reliably told by the effervescent receptionist at @ARIPO that it’s business as usual at their offices and at Zimbabwe Intellectual Property Office (ZIPO) based in Harare. Basically, if you want to invest in Zim, they will help you!”
     
    Today’s talk: phot creds – Brenda Matanga


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  • Zimbabwe: African Resilience Shines Through

    Brenda Matanga  sent Afro-IP a message today to re-assure the IP community and investors that Zimbabwe remains open for business.

     

    Its business as usual” she exclaimed as she updated on the Zimbabwe Institute of Patent & Trade Mark Agents’ talk this afternoon on the procedure for trade mark oppositions at ARIPO. She described the attendance as being a “full house of IP practitioners” including the Deputy Chief Registrar who made a presentation.
     
    “We are good. … Zimbabweans just calmly getting along as if nothing is happening. Just playing it by the ear too… but we are working.”
     
    Earlier today, @DarrenTOlivier tweeted “I am reliably told by the effervescent receptionist at @ARIPO that it’s business as usual at their offices and at Zimbabwe Intellectual Property Office (ZIPO) based in Harare. Basically, if you want to invest in Zim, they will help you!”
     
    Today’s talk: phot creds – Brenda Matanga


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  • Hakuna Matada Isn’t a Strategy for Paradigm Shifting Innovation

    Wouldn’t it be a great world if people innovated for the sake of innovating, spending every waking moment in the pursuit of solutions and inventions that would better mankind? Wouldn’t it be a great world if investors, the top 1% and the richest corporations would invest hundreds of millions of dollars, even multiple billions of dollars, and fund the many years of arduous work from large teams of scientists and engineers necessary to achieve paradigm shifting innovation? In such an idealized…

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  • Three rounds of IPR petitions invalidates VirnetX patent after Apple gets around statute of limitations

    Luckily for Apple and Microsoft, however, VirnetX did not assert the ‘135 patent against Mangrove Partners, a hedge fund, which filed a petition for IPR against the ‘135 patent on April 14th, 2015; Mangrove reportedly shorted VirnetX stock around this time. On October 7th, 2015, the PTAB panel adjudicating the case decided to institute the IPR as the petitioner Mangrove had demonstrated a reasonable likelihood of proving invalidity of the challenged claims. Then in January 2016, Apple was…

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  • Government and 3D Printing: A New Line of Innovation to Protect

    For the last 20 years, manufacturers have used 3D printing to build prototypes, but it was only recently that this industrial technology entered the mainstream.  The 3D printing of products can enable faster time-to-market, save money, mitigate risk and allow manufacturers to customize a component to suit customer needs. 3D printing can produce individual, specifically tailored parts on demand. Boeing printed an entire plane cabin in 2013 and Ford can manufacture vehicle parts in four days that…

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  • Supreme Court Preview — Oil States Energy Services, LLC v. Greene’s Energy Group, LLC

    By Andrew Williams — On November 27, 2017, the Supreme Court will hear arguments in two cases that were ultimately appealed from IPR Final Written Decisions issued by the PTAB. The first of these, Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, will analyze whether IPRs (and presumably other post-issuance proceedings) are constitutional. Specifically, the sole question to be considered by the Court is: 1. Whether inter partes review––an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents––violates the Constitution by extinguishing private property rights through a non-Article III forum…

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  • CAFC states TC Heartland changed the law so venue waiver under FRCP 12(g)(2)/12(h)(1)(A) not applicable to "in between" cases; but there is a remand…

    Micron won on the 12(g)(2) issue, which gives some guidance to district courts,
    BUT the venue matter is not over, so there is still uncertainty in this area:


    But that waiver rule [12(g)(2)], we also conclude, is not the only basis on
    which a district court might reject a venue defense for
    non-merits reasons, such as by determining that the
    defense was not timely presented. A less bright-line,
    more discretionary framework applies even when Rule
    12(g)(2) and hence Rule 12(h)(1)(A) does not. We grant
    the petition, vacate the order, and remand for consideration
    of forfeiture under that framework.

    The CAFC in Micron stated as to FRCP 12(g)(2):

    We find this case to present special circumstances justifying
    mandamus review of certain basic, unsettled,
    recurring legal issues over which there is considerable
    litigation producing disparate results. After the Supreme
    Court decided TC Heartland, corporate defendants in
    many pending patent cases newly presented venue objections
    under 28 U.S.C. § 1400(b), asserting lack of residence
    in the judicial district where the case was filed. In
    many of those cases, the timing of the venue objection
    presented a question about waiver under Rule 12(g)(2)
    and (h)(1)(A)—in particular, whether TC Heartland
    effected a change of controlling law such that the Rule
    12(h)(1)(A) waiver rule was inapplicable. The district
    courts have deeply split on the answer. All of that is
    made clear in the district court’s decision in this case, so
    we need not multiply citations. Harvard, 2017 WL
    3749419, at *3–4.
    Answering the fundamental change-of-law question
    regarding the applicability of Rule 12(g)(2) and (h)(1)(A)—
    as well as the equally fundamental question whether
    those provisions provide the only basis for finding that a
    defendant can no longer make a venue objection—is
    important to proper judicial administration. Doing so
    would reduce the widespread disparities in rulings on the
    fundamental legal standards, while leaving the exercise of
    such discretion as is available in applying those standards
    subject to case-by-case review. In these circumstances,
    we think that mandamus is a proper vehicle for considering
    the fundamental legal issues presented in this case
    and many others.

    The meaning of the word “available” arises:


    Accordingly, the Rule 12 waiver question presented
    here is whether the venue defense was “available” to
    Micron in August 2016. We conclude as a matter of law
    that it was not. The venue objection was not available
    until the Supreme Court decided TC Heartland because,
    before then, it would have been improper, given controlling
    precedent, for the district court to dismiss or to
    transfer for lack of venue.
    This is a common-sense interpretation of Rule
    12(g)(2). Where controlling law precluded the district
    court, at the time of the motion, from adopting a defense
    or objection and on that basis granting the motion, it is
    natural to say, in this context, that the defense or objection
    was not “available” to the movant. The law of precedent
    is part of what determines what law controls. The
    language “was available” focuses on the time of the motion
    in the district court, not some future possibility of
    relief on appeal, thus pointing toward how the district
    court may permissibly act on the motion at the time—i.e.,
    where the motion is for dismissal, whether it can dismiss
    the case and thereby avoid wasting resources on continued
    litigation. Because what Rule 12(g)(2) addresses is
    the omission of a defense or objection from an initial
    motion for one of the forms of relief specified in the Rule,
    subsection (g)(2) is naturally understood to require the
    availability of that relief at the time of the initial motion
    (here, dismissal based on improper venue). That understanding
    is supported by the purpose of Rule 12(g)(2),
    which is to consolidate defenses and to promote early
    resolution of such issues. See Fed. R. Civ. P. 12 advisory
    committee notes (1966) (“[Rule 12(g)’s] required consolidation
    of defenses and objections in a Rule 12 motion is
    salutary in that it works against piecemeal consideration
    of a case.”); see also id. (“Amended subdivision (h)(1)(A)”
    specifies waiver of available defenses not raised in a preanswer
    Rule 12 motion because “[a] party who by motion
    invites the court to pass upon a threshold defense should
    bring forward all the specified defenses he then has and
    thus allow the court to do a reasonably complete job.”).

    (…)

    This reading is also supported
    by the instruction stated in Federal Rule of Civil Procedure
    1—that the Rules “should be construed, administered,
    and employed by the court and the parties to secure
    the just, speedy, and inexpensive determination of every
    action and proceeding.”

    (…)

    No decision of the Supreme Court or a circuit court to
    which we have been pointed runs counter to this commonsense
    interpretation.3 The rationale for this interpretation,
    moreover, is consistent with the general approach,
    which is neither rigid nor context-independent, that is
    reflected in opinions from the Supreme Court and the
    circuit courts in various settings—i.e., a sufficiently sharp
    change of law sometimes is a ground for permitting a
    party to advance a position that it did not advance earlier
    in the proceeding when the law at the time was strongly
    enough against that position. See, e.g., Blonder-Tongue
    Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971)

    Of “V.E. Holding”:


    On the
    patent-specific issue of the proper interpretation of 28
    U.S.C. § 1400(b), the district court was bound by this
    court’s precedent. See In re Cray, 871 F.3d at 1360 (“Federal
    Circuit law, rather than regional circuit law, governs
    [the] analysis of what § 1400(b) requires.”); see also Foster
    v. Hallco Mfg. Co., Inc., 947 F.2d 469, 475 (Fed. Cir.
    1991); Panduit Corp. v. All States Plastic Mfg. Co., Inc.,
    744 F.2d 1564, 1573 (Fed. Cir. 1984). Circuit-court precedent
    is binding on district courts notwithstanding the
    mere possibility that the Supreme Court might come to
    disapprove that precedent. See Eulitt ex rel. Eulitt v.
    Maine, Dep’t of Educ., 386 F.3d 344, 349 (1st Cir. 2004).
    It does not appear, indeed, that Harvard disputes those
    propositions.
    This court held in V.E. Holding Corp. v. Johnson Gas
    Appliance Co., 917 F.2d 1574, 1575 (Fed. Cir. 1990), that
    the 1988 amendments to 28 U.S.C. § 1391(c) furnished a
    definition of “resides” that applied to § 1400(b). In so
    ruling, this court recognized that the Supreme Court had
    held in Fourco Glass Co. v. Transmirra Products Corp.,
    353 U.S. 222, 229 (1957), that the then-current version of
    § 1391(c) did not apply to § 1400(b); but this court concluded
    that the 1988 amendments to § 1391(c)—which of
    course were not before the Court in Fourco—produced a
    different statutory prescription. V.E. Holding, 917 F.2d
    at 1579–80. Under the 1988 version of § 1391(c), a corporate
    defendant was “‘deemed to reside in any judicial
    district in which it [wa]s subject to personal jurisdiction
    at the time the action [wa]s commenced.’” Id. at 1578
    (quoting statute). It is undisputed that Micron comes
    within that broad definition.

    (…)

    The crucial holding of V.E. Holding was that
    § 1391(c)’s definition of “resides,” after the 1988 amendments,
    applied to § 1400(b). On that crucial point, there
    is no substantial argument for distinguishing the 2011
    amendments to § 1391(c) from the 1988 amendments that
    V.E. Holding addressed. Indeed, we so held in In re TC
    Heartland LLC, 821 F.3d 1338, 1341–43 (Fed. Cir. 2016),
    rev’d on other ground, 137 S. Ct. 1514 (2017), and the
    Supreme Court in TC Heartland did not disturb that
    conclusion.
    Thus, if V.E. Holding is taken as a binding precedent,
    § 1391(c)’s current definition of “resides” applies to
    § 1400(b). It follows that controlling precedent, which the
    district court here was bound to follow, would plainly
    have barred the district court from adopting a venue
    objection had Micron made one before the Supreme Court
    decided TC Heartland.

    BUT


    In this case, the district court considered whether to
    excuse what it found to be a Rule 12(h)(1)(A) waiver but
    did not consider whether Micron lost its right to assert
    the absence of venue on grounds separate from Rule
    12(h)(1)(A). We remand for the court to consider any such
    properly raised non-Rule 12(h)(1)(A) arguments that
    Micron has forfeited its venue defense and, if there are no
    such sound arguments, to consider the merits of venue
    under § 1400(b).

    FOOTNOTE: Dennis Crouch at PatentlyO has an interesting take on
    “controlling” law:


    Although the court [CAFC] is absolutely correct that its approach is the common-sense approach since we have been operating under the old rule for decades. However, the major analytical problem with the court’s decision here is its notion that its misinterpretation of Supreme Court law is somehow “controlling” law. Rather the Supreme Court decided the identical issue in Fourco (1957) and then in TC Heartland (2017) held the minor amendments made to the guiding statutes did not alter the holding of Fourco. In other words, the “controlling law” this entire time has been the Supreme Court precedent. Supreme Court writes:

    The issue in this case is whether [the amendment to the statutes] supplants the definition announced in Fourco and allows a plaintiff to bring a patent infringement lawsuit against a corporation in any district in which the corporation is subject to personal jurisdiction. We conclude that the amendments to §1391 did not modify the meaning of §1400(b) as interpreted by Fourco.

    Regardless of this technicality, the rule appears now that district courts should be considering and granting improper venue decisions moving forward.

    link: https://patentlyo.com/patent/2017/11/heartland-challenges-nullified.html

    In passing, the IPBiz post

    http://ipbiz.blogspot.com/2017/11/new-york-times-mentions-pop-culture.html

    is related to what Dennis is saying.

    Is a district court free to interpret Supreme Court precedent in a way that is completely negated by a holding of the regional circuit?

    UPDATE, from DocketReport on 17 Nov 2017:

    Omission of Venue Challenge From First Rule 12(b) Motion Precludes Defendant From Invoking Intervening Change of Law to Excuse Waiver
    The court denied defendant’s motion to dismiss or transfer plaintiff’s consolidated patent infringement actions for improper venue because defendant waived its venue defense. “It is well settled that an improper venue defense is waived if it is not included in ‘a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.’ [Defendant’s] Motion to Dismiss the Complaint in [the first action] did not raise a defense of improper venue. The defense was therefore waived. . . . Even if the TC Heartland decision was an intervening change in law, the ‘omission of improper venue from [a party]⁠’s first 12(b) motion constitutes a “procedural misstep,”‘ which precludes a party from ‘”invok[ing] intervening Supreme Court case law” in order to “correct” it.’. . . As to [defendant’s] venue challenge in [the second action], [defendant] has already admitted that venue is proper. It may not now ‘take back’ this admission or otherwise seek to avoid its effects.”
    Nichia Corporation v. VIZIO, Inc., 2-16-cv-01453 (TXED November 15, 2017, Order) (Gilstrap, USDJ)

    link” http://docketreport.blogspot.com/2017/11/omission-of-venue-challenge-from-first.html

    **Separately

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  • PatentlyO Bits and Bytes by Anthony McCain

    Gene Quinn: Predicting Oil States In Advance Of SCOTUS Oral Arguments Stuart Duncan Smith: Legislation To Curtail Sovereign Immunity In IPR May Be On The Way Jo Dale Carothers: USPTO Finalizes Rule For Privileged Communications In Trials Before The PTAB Procedural Bait And Switch: Withdrawn Rejections As Undesignated New Grounds In Examiner’s Answers Mark Schultz: […]

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  • 後で(あとで)

                            目次はこちら

    後で(あとで)

    –>後(ご、あと、のち)

    (AFTER)
    $$ Accordingly, it is possible to set FT1 and FT2 and thereafter derive s1, s2, s4 and s5. / したがって、FT1及びFT2を設定でき、その後でs1、s2、s4及びs5を導くことができる。(USP8294977)

    $$ The mass spectrum shown in FIG. 7A was obtained after 5 s of continuous operation. / 図7Aに示すマススペクトルは、5秒間連続で動作させた後で得られた。(USP8153960)

    $$ This additional damping can be added simply as a "software patch" after the problem has been discovered–a further potential cost saving. / この追加の減衰は、問題が発見された後で、単に「ソフトウェアパッチ」として追加することもできる。これはさらなる潜在的なコスト節約である。(USP8061677)

    (BEFORE)
    $$ This may be wound into the device before the lid is attached to the cassette and the cassette sealed. / これを装置内に巻き込んだ後で、蓋をカセットに取り付け、カセットを封止することができる。(USP8201556)

    $$ The signal to be cancelled obtained using the above mentioned considerations is inverted and scaled before being again replicated. / 前記した要件を使用して得られたキャンセルすべき信号は反転およびスケーリングするされた後で再度複写される。(USP7577260)

    (BELOW)
    $$ This aspect of the preferred embodiment will be described in more detail below. / 上記好ましい実施形態のこの態様を後でより詳細に説明する。(USP7622711):below

    $$ Other aspects of the invention are as described and claimed below. / 後で開示し、また特許請求の範囲に記載したように、本発明の他の態様もある。(USP7319673)

    $$ This is discussed further below. / これは後でさらに詳しく記載する。(USP6775249)

    $$ The receipt of replies will be described below. / 応答の受信に関しては後で説明することにする。(USP6336135)

    (LATER)
    $$ The cloth of the present invention can be manufactured and caused to set at will any time later by the addition of the liquid, e.g. water. / 本発明の布地を製造して、液体、例えば水の添加によって思い通りにいつでも後で固化させることができる。(USP8343609)

    $$ Such forms of protection signal will be described later. / 防止信号の形式については後で説明する。(USP8160423)

    $$ Further aspects of the development program will be considered later. / 該開発プログラムのさらなる態様が後で検討される。(USP7565281)

    $$ Suitable values of c will be discussed later. / cの適切な値は後で論じる。(USP6809514)

    $$ The production of these parameters will be explained later. / これらのパラメータの生成は、後で説明される。(USP6671666)

                            目次はこちら

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  • CAFC Finding That TC Heartland Changed The Law of Venue, But Signaling That Courts can Use Their Authority to Find Forfeiture of a Venue Objection

    In re Micron Tech., Inc.: Nov. 15, 2017. Before Taranto, Chen, Hughes. Takeaway: As a matter of law, the venue objection was not available to Petitioner until the Supreme Court decided TC Heartland because before then, given controlling precedent, it would have been improper for the district court to dismiss …

    The post CAFC Finding That TC Heartland Changed The Law of Venue, But Signaling That Courts can Use Their Authority to Find Forfeiture of a Venue Objection appeared first on CAFC Blog .

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  • Federal Circuit: TC Heartland changed the law; pre-decision waiver of venue challenges are nullified

    by Dennis Crouch In re Micron (Fed. Cir. 2017) On writ of mandamus, the Federal Circuit has sided with accused-infringer Micron – holding that TC Heartland was a sufficient change in the controlling law of venue to overcome the fact venue-challenge had been previously waived in the case.  My sense is that this is quite poor analysis opinion, but the […]

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  • Infojustice – US, Canadian & Mexican Law Professors, Academics And Policy Experts: NAFTA Must Include Fair Use, Safe Harbors

    WASHINGTON – Today, over seventy international copyright law experts called for NAFTA and other trade negotiators to support a set of balanced copyright principles. The experts urge trade negotiators to support policies like fair use, safe harbor provisions, and other exceptions and limitations that permit and encourage access to knowledge, flourishing creativity, and innovation. Signatories include preeminent intellectual property professors and experts from law schools, think tanks, and public interest organizations in the U.S., Canada, and Mexico, as well as Argentina, Australia, China, Ireland, and Switzerland.

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