• US Perspectives: Controversy Hides Within US Copyright Bill

    In a time when partisanship runs wild in the USA and the country’s political parties can’t seem to agree on anything, the Music Modernization Act is exceptional. The MMA passed the House of Representatives on 25 April with unanimous support. And for good reason. Almost all the major stakeholders back this legislation, which will bring some badly needed changes to copyright law’s treatment of music streaming. But wrapped in the MMA is a previously separate bill – the CLASSICS Act – that has been attacked by many copyright law experts, is opposed by many librarians and archivists, and runs counter to policy previously endorsed by the US Copyright Office.

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  • Federal Circuit Finds INOMax Mental Steps Obvious As Ineligible Printed Matter

    In Praxair Distrib., Inc. v. Mallinckrodt Hospital Prods. IP Ltd., the Federal Circuit found that the printed matter doctrine applies equally to physically embodied information and mental steps, and can be invoked in the patent eligibility context under 35 USC § 101 or the patentability context under 35 USC §§ 102 and 103. Does the court’s holding raise another…… Continue reading this entry

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  • Valmont Industries, Inc. v. Lindsay Corp. (Fed. Cir. 2018)

    Shapes and Shading of Graphical User Interface Not Enough to Uphold Validity By Joseph Herndon — In a nonprecedential decision, the Federal Circuit found all challenged claims directed to a graphical user interface of a U.S. Patent obvious over a combination of prior art. Valmont Industries, Inc. appealed from the final decision of the Patent Trial and Appeal Board in an inter partes review, finding claims 1–10, 12–15, 17, and 18 of U.S. Patent No. 7,003,357 unpatentable as obvious. Lindsay Corp. also cross-appealed the Board’s determination that claim 11 was not obvious. Reviewing all prior art, the Federal Circuit found…

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  • Conference & CLE Calendar

    May 29, 2018 – “The Impact of Oil States and SAS Institute on Your PTAB Strategy” (IAM) – 4:00 (BST) May 31, 2018 – “Oil States and SAS: Implications of the Supreme Court’s Decisions for Patent Practice” (Strafford) – 1:00 to 2:30 pm (EDT) May 31, 2018…

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  • Petition: Is the government a person and can it infringe?

    Petition: Is the government a person and can it infringe?

    by Dennis Crouch

    The America Invents Act (AIA) allows for a “person” to file a covered business method review (CBM) to challenge an issued patent.  See AIA Section 18 (because they it is a temporary program, the CBM provisions have not been codified in the United States Code).  In Return Mail v. USPS, Docket No. No. 17-1594 (Supreme Court 2018), the CBM petitioner was the U.S. Postal Service – i.e., the U.S. government, and the question on petition is whether the government counts as a “person” under the statute:

    1. Whether the government is a “person” who may petition to institute review proceedings under the AIA.

    (Petition for Writ of Certiorari).

    A major portion of the argument here is that the statute generally treats the U.S. government differently — giving it sovereign immunity but for a limited remedy for government use under 28 U.S.C. 1498(a).  The argument here is that – if the Government isn’t subject to be treated as a person under the infringement statute section 271(a) (“whoever without authority . . .”), then it also shouldn’t receive the benefit of being treated as a person under the AIA Trial regime.

    Continue reading Petition: Is the government a person and can it infringe? at Patently-O.

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  • 行列



    $$ The starting point of the procedure is defined by the initial contents of the row and column matrices R and C. / 手順の開始点は、行および列の行列RおよびCの最初の内容によって定義される。(USP8405581)

    $$ Linear relationships between columns therefore make the matrix J "ill conditioned" (Numerical Recipes). / 従って、列間の線形関係により、行列Jは「悪い状態」になる(数値計算レシピ)。(USP8346521)

    $$ These matrices are seeded based on some simple manipulations of the input image, held in the matrix V. / これらの行列は、行列Vで保持された入力画像のいくつかのサンプル操作に基づいてシードされる。(USP8300057)

    $$ FIG. 8b shows row, column and image matrices for a multiline addressing scheme. / 図8Bは、マルチラインアドレッシング方式についての行、列および画像行列を示している。(USP8237638)

    $$ The Kalman gain update equation involves the inversion of a Nk×Nk matrix, where Nk is the number of valid pixels at sample time k. / カルマンゲイン更新式は、Nk×Nkマトリクスの逆行列を含み、ここでNkは、サンプル時間kでの有効ピクセルの数である。(USP7029172)

    $$ This is done across a designated matrix of points over the entire scanning area. / これは、走査領域全体で点の指定された行列全体で行われる。(USP7578441)

    $$ These two values are compared by the Kalman filter and used to update the elements of the matrix B. / これらの2つの値は、カルマンフィルタにより比較され、行列Bの要素を更新するために使用される。(USP6671666)

    $$ Typically the display comprises a two-dimensional array of pixels addressed by row and column electrodes. / 典型的に、ディスプレイは、行列電極によってアドレッシングされる二次元ピクセルアレイを備えている。(USP8451249)

    $$ In this case a thicker dielectric is required to reduce parasitic capacitance, leakage and the probability of shorts at row/column crossing points. / この場合、より厚い誘電体は、寄生容量、漏出、行列交点における短絡確率を減少するように求められる。(USP8089065)

    $$ If no repeat request is detected, then at step 124 the number is logged for requeue after an appropriate delay, for example 20 seconds. / 繰返し要求が検出されるとき、段階124では、適度な遅延後に、例えば20秒後に番号を再び待ち行列に入れるためにログされる。(USP6912270)

    $$ The high priority queue is used to buffer SCP event records until they can be processed by an FDE 20. / 高い優先順位の待ち行列を使用して、SCPイベント記録がFDE20によって処理できるまでそれらをバッファする。(USP5907602)


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  • WIPO Copyright Committee Opens With Ideas, Questions On Internet, Terms Of Protection

    At the opening of this week’s meeting of the World Intellectual Property Organization copyright committee, some member states came with new proposals, and officials signalled a new level of energy. But civil society voiced concerns on the provisions of a potential treaty protecting broadcasters against signal piracy, underlining the 50-year envisioned protection, and the need to carve out strong limitations and exceptions. Separately, Australia tabled a proposal to help the discussions on deferred transmissions, which have been a sticking point in negotiations.

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  • Stays of Injunctions in the U.K.

    I recently published the third in a series of posts discussing the reluctance of courts in Germany to grant stays pending design-around (a/k/a tailored injunctions), that is, to allow infringers a period of time to find a noninfringing alternative before ceasing production and sales of existing products (see herehere, and here).  But as a policy matter there is something to be said for issuing such tailored injunctions under appropriate circumstances.  As Colleen Chien and Eric Shulman write in a recent paper:
    Making tailored injunctions in component patent cases, rather than full injunctions the default when injunctions are warranted, has several benefits. First, tailored injunctions are less disruptive than removing the product but more powerful than simply giving damages. In this way, it can address both hold-up: the wielding of power by the patentee in light of the high costs of switching, and hold-out: the refusal of accused infringers to consider legitimate patent demands because they can. Under the threat of a non-tailored injunction, an implementer may end up settling based on unnecessary switching or design around costs, even though the patent is invalid or not infringed, a concept often referred to as “hold-up.” But without the threat of injunction, the patentee cannot get the alleged infringer to the table, a concept often referred to as “hold-out.”

    While the prospect of a tailored, rather than all-or-nothing injunction, changes the dynamic for the parties, it benefits third parties as well. Tailored injunctions reduce the risk of error in calculating long-term damages. Rather than having to approximate the damages until the patent expires, the court orders the specific relief of injunction. That relief is simpler to determine (though it does create monitoring costs). Tailored injunctions reduce disruption to the public or third parties who have sunk costs into the existing solution.

    Anyway, over on the IPKat Eibhlin Vardy reports on a decision last week by Mr. Justice Arnold (Patents Court for England and Wales) staying an injunction against Edwards LifeSciences, so that certain medical devices may continue to be used for at least one year, pending retraining of medical personnel, and potentially indefinitely, for patients for whom there are no adequate substitute devices (copy of the opinion here).  From the opinion:
    15. It was common ground between the parties that, in determining the issues as to (i) the length of the stay and (ii) the scope and duration of the qualification, the Court should have regard to the public interest and should exercise its discretion in accordance with Article 3 of European Parliament and Council Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (“the Enforcement Directive”) . . . .

    16. As I have observed in another context, the key consideration in Article 3 is proportionality and consideration of the other factors feeds into the proportionality analysis. . . .

    60.  Given that a stay and a qualification of the injunction, albeit on terms that Boston receives a financial remedy in respect of future sales of the Sapien 3, will partly deprive Boston of the remedy to which it would ordinarily be entitled, the length of the stay and the nature and duration of the qualification must be proportionate, that is to say, they must strike a balance between Boston’s interest in maintaining the monopoly conferred by 766 and the public interest in ensuring that patients with aortic stenosis receive appropriate treatment. Rightly, Edwards do not rely upon their own interests except in so far as they coincide with the public interest.

    61. In considering the proportionality of the parties’ respective proposals, a striking factor is what Boston’s evidence does not say. There is no suggestion that continued sales of the Sapien 3 will cause Boston irreparable harm, that is to say, harm that cannot be fully compensated by a financial remedy against Edwards. This is unsurprising given that the Sapien 3 has been on the market since January 2014, that the Sapien 3 has some 60% of the market and that the Acurate only has 5-6% of the market. Indeed, it seems likely that the major beneficiary of the more limited stay and qualification proposed by Boston would be Medtronic. Nor is there any suggestion that Edwards will not be able to pay whatever sum may be determined to be payable in respect of future sales of the Sapien 3. Furthermore, as discussed above, Boston is not currently exploiting 766 in the UK. . . .

    There will be a future hearing to determine the appropriate monetary award for past and future infringement (see para. 6), but in the meanwhile the court ordered Edwards to pay a royalty of 5% of net sales, “on account of whatever figure may be awarded in future” (para. 72).  If the matter does not settle before then, it will be interesting to see what award the court will mandate for the future infringement in particular, a question on which the law of England and Wales at present appears to be unsettled (see paras. 12-14).

    Addendum:  I should note that courts may approach the decision whether to stay (or deny altogether) an injunction somewhat differently, depending on whether (as discussed in the above excerpt from Chien and Schulman) the case involves a complex product embodying numerous patents, or (as presented in the Edwards matter) the case centers on the public interest.

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