What IP-Watch stories were readers reading most in 2017, and what does it say about the state of global intellectual property policy? In this article, we look at the most-trafficked stories of last year, and make a few assumptions. Asia, Europe, trade,…Continue Reading ...
First, I predict that the United States Supreme Court will find post grant procedures under the America Invents Act to be unconstitutional. It is my belief they took Oil States not as a patent case, but rather as an Administrative State case, and if th…Continue Reading ...
Linkilaw writes: Statistics show 69% of SME owners have heard about the General Data Protection Regulation (GDPR) and 70% admitted to being unaware it will come into effect from 25th May 2018. It is important for small business owners to understand what the GDPR is as well as its application. The GDPR is the outcome of four years of constant discussions, investigations, and amendments made by the EU to update its data privacy rules and regulations.The GDPR will replace the Data Protection Directive established in 1995, creating a greater territorial scope and stricter penalties for those states members, and business dealing with Personal Data, who fail to keep and handle data according to the new regulation. The GDPR was finally approved by the EU Parliament on 14 April 2016 but will apply from 25 May 2018, giving a two-year transition period for all EU members states. This is a call for all SME’s: you need to prepare now!Continue Reading ...
In 2012 I wrote a short essay on what I called “The Revival of Parker v. Flook” and included the following chart of court citations to the much maligned 1978 decision. The Revival of Parker v. Flook For patentees, the most difficult aspect of the decision is its focus on an “inventive concept” that is separate from […]Continue Reading ...
The Oil States v. Greene’s Energy Group case heard by the U.S. Supreme Court Nov. 27, 2017, has generated much ink, analysis and opinion. Rightly so, given the profound consequences for the security of exclusive private property rights of limited duration in patents. Among the worthy and constructive reflections, conservative experts and leaders have contributed a fair share… Heritage Foundation legal scholar Alden Abbott, whose background includes service at the Federal Trade Commission and…
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Concerns about the ability of academic institutions to keep contributing to the U.S. innovation economy go well beyond federal funding stagnation according to the recent AUTM survey. In an executive summary section entitled The Perils of Eroding Patent…Continue Reading ...
By Kevin E. Noonan — The creation of adversarial procedures before the Patent Trial and Appeal Board under the Leahy-Smith America Invents Act (post-grant review, inter partes review, and covered business methods review) has raised a number of issues arising from the differences between Article I agencies (and the courts created therein and governed by the Administrative Procedures Act; 5 U.S.C. § 554) and Article III courts. Some of these stem from the nature of the two types of courts (with the Chief Justice of the U.S. Supreme Court noting these differences somewhat acerbically in Oil States Energy Services, LLC…Continue Reading ...
The abstract of Amazon’s ‘719 patent states:
Systems and methods are provided for generating a blended reality view to a user, the blended reality view combining images reflected by a mirror with images transmitted from a screen behind the mirror. Systems for generating blended reality views can include a display device with a screen positioned behind a mirror. The display device can generate a pattern of illumination and non-illumination on the screen so that the illuminated portions of the screen substantially transmit through the mirror. Projectors can be used to illuminate objects in front of the mirror so that the illuminated objects are reflected by the mirror. In combination, the portions of the screen transmitted through the mirror and the illuminated objects reflected by the mirror can provide a blended reality view to a user viewing the mirror.
The first claim recites:
An apparatus to provide a view of reflected and transmitted light to create a visual effect that combines reflected images and transmitted images, the apparatus comprising: a display configured to display images; a mirror having a first side and a second side opposite the first side, the display facing the second side of the mirror, the mirror being partially-reflective and partially-transmissive such that at least a portion of light provided by the display passes through the mirror and is visible from the first side of the mirror; a frame surrounding the mirror; a plurality of projectors positioned on the frame and configured to illuminate a user and object elements facing the first side of the mirror; a camera configured to acquire image data of the user and object elements; and an image blending system communicably coupled to the display, the plurality of projectors, and the camera, the image blending system configured to: in a scanning phase, analyze image data received from the camera to determine locations of the user and object elements; in a tracking phase, analyze the image data received from the camera to determine a location of the user’s eyes, the location of the user’s eyes including a height and a distance of the user’s eyes relative to the mirror; control the plurality of projectors to illuminate at least some of the user and object elements such that light from the illuminated user and object elements is reflected by the mirror to form reflected light, the reflected light visible from the first side of the mirror within a first portion of the first side of the mirror; and control the display to output display light, wherein a first portion of the display light corresponds to an image, wherein the first portion of the display light passes from the second side of the mirror to the first side of the mirror such that the first portion of the display light is visible from the first side of the mirror within a second portion of the first side of the mirror, wherein a second portion of the display light passes from the second side of the mirror to the first side of the mirror at a location corresponding to the first portion of the first side of the mirror, and wherein the second portion of the display light has a light intensity lower than a light intensity of the reflected light such that the reflected light is visible instead of the second portion of the display light; wherein at least a portion of the reflected light and the display light combine to form a composite image.
Primary Examiner: Liu; ZhengxiContinue Reading ...
Assistant Examiner: Vu; Khoa
Attorney, Agent or Firm: Knobbe Martens Olson & Bear LLP
The National Law Review [NLR] reviewed its top five IP blog posts for 2017; number five related to
Millennium v. Sandoz, of which IPBiz had written
The district court held that the claims were obvious
because they were the inherent result of an allegedly
obvious process, viz., lyophilizing bortezomib in the presence
of the bulking agent mannitol. Millennium argued
that a person of ordinary skill would avoid lyophilization
in developing a formulation involving bortezomib because
“bortezomib was known to be unstable even in the dry
state as a freestanding solid compound.”
The district court stated that Millennium “conceded
as a matter of law that the ester is the ‘natural result’ of
freeze-drying bortezomib with mannitol.” Dist. Ct. Op. *8.
However, “[t]he inventor’s own path itself never leads to a
conclusion of obviousness; that is hindsight. What matters
is the path that the person of ordinary skill in the art
would have followed, as evidenced by the pertinent prior
art.” Otsuka, 678 F.3d at 1296. This oft-cited principle is
explained in, for example, In re Kratz, 592 F.2d 1169,
1175 (CCPA 1979):
However, making weight of the method appellant
used in finding the invention is beside the point.
The last sentence of 35 U.S.C. § 103, with great
clarity, excludes such methodology in stating that
“(p)atentability shall not be negatived by the
manner in which the invention was made.”
Sandoz argues that although lyophilization in the
presence of mannitol produced an unexpected result, the
result was “inevitable” and thus “inherent,” and thus not
“inventive.” Sandoz Br. at 1, 12-17. However, invention
is not a matter of what the inventor intended when the
experiment was performed; obviousness is measured
objectively in light of the prior art, as viewed by a person
of ordinary skill in the field of the invention. “Those
charged with determining compliance with 35 U.S.C.
§ 103 are required to place themselves in the minds of
those of ordinary skill in the relevant art at the time the
invention was made, to determine whether that which is
now plainly at hand would have been obvious at such
earlier time.” Interconnect Planning Corp. v. Feil, 774
F.2d 1132, 1138 (Fed. Cir. 1985). No expert testified that
they foresaw, or expected, or would have intended, the
reaction between bortezomib and mannitol, or that the
resulting ester would have the long-sought properties and
IPBiz notes that obviousness relates to that which is known or reasonably foreseeable. Inherency (in an anticipation context) does NOT require this. In Millennium, the formation of, and the inherent properties of, the bortezomib-mannitol ester were not known or reasonably foreseeable. On these facts, the mere invocation of inherency was legal error.
As pointed out in a 2012 post in IPBiz on In re Daniels:
Appellants are correct insofar as that a retrospective (retroactive or backwards) employment of inherency by the Solicitor is incorrect in a § 103 analysis. Appellants are also correct that employment of inherency is incorrect in a § 103 analysis when it is not known in the art that the inherent part is in fact inherent. Newell, 891 F.2d at 899 quoting In re Spormann, 363 F.2d 444 (C.C.P.A. 1966), (“That which may be inherent is not necessarily known. Obviousness cannot be predicated on what is unknown.”).
Separately, from blawgsearch on 3 January 2018:Continue Reading ...
From Joe Nocera’s Patents, Trump, Viagra: My Good and Bad Calls of 2017 :
To my mind, the patent appeals board is an important brake on the pharmaceutical industry, which routinely abuses the patent system to extend monopolies on brand-name drugs long after the original patent has expired — a practice that costs Americans billions of dollars. On the other hand, big tech companies like Apple love the patent appeals board, which they use to pressure smaller companies and inventors whose innovations they want to use. Busting the patent is the cheapest and easiest way to accomplish that.
As you can see, I’m conflicted as to whether the patent appeals board should stay or go. My own solution would be to abolish the board and create an alternative patent system for the drug industry. I hope to lay out the details in a column soon.
As IPBiz pointed out in the 2015 post PTAB declines to institute IPR against Biogen’s US 8,399,514 related to the MS drug Tecfidera , PTAB can be friendly to the pharma industry in some cases.
This particular case illustrated a flaw in the IPR system, that petition denials cannot be appealed, even when they should be.Continue Reading ...
(OBTAINED)Continue Reading ...
$$ FIG. 1 shows an XRD trace of the product obtained. / 図１は得られた製品のＸＲＤ線を示している。(USP7018603…
Back in 2006, IPBiz made reference to Dan Hunter’s law review article on “walled gardens”:
I could not help thinking about Dan Hunter’s article, Walled Gardens, 62 Wash & Lee L. Rev. 607, which complained about the requirement of some law reviews that articles which had been pre-published on an internet website to be removed from the website BEFORE publication in the journal.
The common theme is the perceived undesirability, by the journals, of information being made available on the internet. The noncommon theme is the timing. The SCIENCE journals have the expectation of presenting the information FIRST, and worry about the impact of later publication. The LAW journals do not care that the information has been presented somewhere else first, but don’t want someone to access the information (presented elsewhere first) AFTER they decide to publish it LATER.
IPBiz post: Journal publication, pubmedcentral and the ACS
Ip-watch.org has a post on copyright which includes text about scientific publications, which shows some journals restrict access even after more than fifty years:
A distressing number of scientific articles from 1961 require payment or a subscription or account, including those in major journals such as Science and JAMA,6 both of which charge $30 to view a single article from 1961 for 24 hours. Want to read a 1961 article about graduate medical education? Here’s the payment page. Want to read “An Experiment in the History of Science: With a simple but ingenious device Galileo could obtain relatively precise time measurements”? If you go to Science’s page to purchase digital access, you will see that you can purchase access for 1 day for $30 US—but that’s not all. You also have to agree to the following restrictions and conditions: “You may view, download, and/or print the article for your personal scholarly, research, and educational use” but may not distribute or post it, and you must agree both to accept cookies and be contacted from time to time about the publisher’s products. Of course, many scientists will have institutional access to these journals, but this access is not guaranteed—even institutions such as Harvard have considered canceling their subscriptions because they could no longer afford the escalating prices of major journal subscriptions.
It’s remarkable to find scientific research from 1961 hidden behind publisher paywalls. Thankfully, some publishers have made older articles available in full online, so that you can read them, even though it may still be illegal to copy and distribute them. In addition, some older articles have been made available on third party websites, but this is not a stable solution for providing reliable access to science.
Third party postings can be difficult to find or taken down, links can get broken, and would-be posters may be deterred by the risk of a lawsuit. Under the pre-1978 copyright term, all of this history would be free to scholars, students, and enthusiasts.
Not all scientific publishers work under this kind of copyright scheme. “Open Access” scientific publications, like those of the Public Library of Science, are under Creative Commons licenses, meaning that they can be copied freely from the day they are published.
Footnotes 6 and 7:
6 Sometimes you can see the first archived journal article you choose, but the remaining articles are behind a paywall. And even when 1961 articles are readable, they’re still copyrighted—these publishers won’t allow you to reproduce or distribute them without permission.
7 A Congressional Research Service study indicated that only 2% of works between 55 and 75 years old continue to retain commercial value. As explained above, many works from 1961 are technically in the public domain, but it is often difficult to conclusively determine public domain status, so users have to presume that they’re still under copyright.
LINK: https://www.ip-watch.org/2018/01/02/entered-public-domain-january-1-2018/Continue Reading ...
I previously wrote about the pending RecogniCorp petition for writ of certiorari to the Supreme Court that asks for clarification of the Abstract Idea analysis. I see the basic question here as to whether Parker v. Flook is good law. The Supreme Court will likely discuss the case in their January 5 conference. RecogniCorp: Can Data Processing be […]Continue Reading ...