• 幅(数量表現を含む)

    幅(数量表現を含む)

    –>widely; broaden; 大幅に

    (WIDTH)
    $$ FIG. 8B is a cross-section through a panel 100 of the present invention similarly formed of two components 102 and 104 of combined width of between 2 mm and 10 mm, typically of acrylic or polycarbonate. / 図8Bは本発明のパネル100の断面である。これは合計厚みが2mmと10mの間にあって、同様に2つの構成要素(102)及び(104)からなり、通常はアクリル又はポリカーボネートである。(USP6212805)

    $$ Initiation of the tear is assisted by the reduced width of the heat-seal 6 under the tab 16,16′, due in part to recess 17,17′, and by the through-cuts adjacent the edge 7. / 引裂の開始は、タブ16,16’の下方においてヒートシール6の幅が短くされていることによって、また、エッジ7に隣接して切込が設けられていることによって、補助されている。(USP6000539)

    $$ The width of the slots at the forward end of the sharpened edges is in the range of 50 to 500 μm. / 鋭利な縁の前方端の溝の幅は50乃至500μmの範囲である。(USP6176014)

    $$ The width of the PWM signal equates to the current and hence to the torque being supplied to or by the motor. / PWM信号の幅は、モータへの電流、モータによるトルクと等価である。(USP6132010)

    $$ The width of the flow paths measured perpendicular to sheet lies between 10 and 500 micrometers. / シート(8)に垂直な方向で測定される流路の幅は10~500マイクロメートルである。(USP5961832)

    $$ Thus by pulling the pull tab across the length and/or width of the security label the machine readable pattern is disrupted, preventing reading of the code by an electronic reader. / したがって、安全ラベルの長さ及び幅の少なくとも一方にわたって延びる引張りタブを引張ることにより、機械読取り可能なパターンが引破られ、電子式読取器によるコードの読取りが妨げられる。(USP5895075)

    $$ Ideally, the slot would be of a width corresponding to that of a single line as displayed on the screen 6, i.e. the diameter of the dot of light 14. / 理想的には、スロットはスクリーン6上に表示される単一の線の幅、すなわち光のドット14の直径に対応する幅であろう。(USP5453842)

    $$ The basic capacitance of the temperature sensors of the invention can be selected by adjusting the size (area) of the contacts and the width or thickness of the diamond material between the contacts. / 本発明の温度センサの基本的なキャパシタンスは、それらの接点の寸法(面積)及びこれらの接点間のダイヤモンド型材料の幅又は厚さを調節することによって選択され得る。(USP5407276)

    (IN WIDTH)
    $$ In order for the platform to be movable laterally on the guide rails 30, the wheels of the platform are slightly oversized in width with respect to the width of the guide rails 30. / プラットホームが案内レール24の上で横方向に移動できるように、プラットホームの車輪の幅は、案内レール24の幅よりも若干大きくされている。(USP7090586)

    $$ This will result in the space between the pair of spaced surfaces increasing in width on one side and decreasing in width on the other. / これは、結果として、一方の側で幅が増加し他方の側で幅が減少する間隔をおいた表面の対の間の空間になる。(USP7584738)

    (WITH A WIDTH)
    $$ This example declares a variable x with a width of 27 bits and a variable y that has its width inferred by the compiler. (USP6691301)

    $$ Desirably the rounded edge defines at least part of a generally circular or generally rounded shape with a width across its widest portion of from 0.2cm to 5cm, more preferably from 0.5cm to 2cm. / 望ましくは曲線端が、最も広い部分が0.2cm~5cm、より好ましくは0.5cm~2cmの幅を有するほぼ円形またはほぼ曲線形状の少なくとも一部分を形成する。(USP59680009)

    (HAVE A WIDTH)
    $$ FIGS. 7 and 8 illustrate a continuous electro-active member having a width which varies along its length; / 【図7】,【図8】長さに沿って変化する幅を有する連続電気活性部材を示す図である。(USP6833656)

    $$ Single ply paper as claimed in claim 4 in which the strip has a width lying in the range of 6 to 22 mm. / 前記ストリップの幅が6ないし25mmの範囲にあることを特徴とする請求項4に記載の単層紙。(USP6616803)

    $$ The border has a width w dependent on the maximum vector range. / 輪郭は、最大ベクトル範囲に応じて幅wを有する。(USP6567128)

    $$ The side wall spacers 31,32 preferably have a width at their lower extremities of around 2000 Angstroms. / これらの側壁スペーサ31、32はその下端において約2000オングストロームの幅を有する。(USP5541434)

    $$ As can be seen from FIG. 5, the mask 21 defines an elongate aperture or slot 25 and has a width at least equal to the diameter of the halo 16. / 図5で見られるように、マスク21は細長いアパチャまたはスロット25を規定し、かつ少なくともハロー16の直径に等しい幅を有する。(USP5453842)

    (STH WIDTH)
    $$ It will be seen that the price windows 12 are of double width to display two digits, whilst the price windows 13 are of single width and, in the illustrated embodiment, display tenths of pence after the decimal point. / 図から理解できるように、価格窓12は二つの数字を表示する倍幅のものであり、価格窓13は単幅であって図示例では小数点以下の十分の-ペンスを表示する。(USP6332283)

    $$ The mean width of the small voids is preferably in the range from 0.2 to 2.5 μm, more preferably 0.6 to 2.0 μm, particularly 1.0 to 1.8 μm, and especially 1.4 to 1.6 μm. / 小さい空隙の平均幅は好ましくは0.2~2.5μmであり、より好ましくは0.6~2.0μmであり、特に1.0~1.8μmであり、そして特に1.4~1.6μmである。(USP5935903)

    $$ The output from amplifier 122 is connected to one input of a pulse width modulator 140. / 増幅器122からの出力は、パルス幅変調器140の一方の入力部に接続されている。(USP5434880)

    $$ The second pair of limbs may have a contact region adjoining the central region which less than 10% of the limb width of each limb of the first pair of limbs. / 第2対の枝は、第1対の枝の各枝の枝幅の10%未満である、中心領域に隣接する接触領域を有することができる。(USP6809514)

    $$ A cycles per picture width count of 288 corresponds to a frequency within the raster scan output of 5.37 MHz. / 画像幅当たり周波数(cpw)のカウント288は、5.37MHzのラスタ走査出力内の周波数に対応する。(USP6754433)

    $$ This requirement for a minimum number of frequencing channels is related to the beam width of the node antenna. / 最小数の周波数チャネルに対するこの要件は、ノードアンテナのビーム幅に関係する。(USP6553020)

    (STH WIDE)

    $$ Referring to FIGS. 14 and 15 a border (one macroblock wide in FIG. 14D) may be created around the newly inserted material. / 図14及び図15に示すように、輪郭(図14Dでは1マクロブロック幅)が、新たに挿入された素材の周囲に生成される。(USP6567128)

    (WIDE)
    $$ At least half of the space between the pulley wheels 11, 12 is taken up by a fluid guide block 15 which is as wide as the drive belt 16. / プーリホイール11,12間のスペースの少なくとも半分は、駆動ホイール16と同等の幅を有する流体案内ブロック15によって占められる。(USP6299422)

    $$ On its underside, the upper portion 234 carries an infra-red back-light 252 which is selectively operable to produce a 3 mm wide collimated beam. / その下側に、上部分234は、3mm幅の視準ビームを造るために選択的に作動可能の赤外バックライト252を担持している。(USP7577286)

    (OTHERS)
    $$ All these functions contribute to the temperature of the planar optical component being contained within desirable limits (typically the target control span is 20 micro Kelvin). / これらの全機能は、プレーナ型コンポーネントの温度が所望の限度内(通常目標制御幅は20マイクロケルビン)に入るように貢献する。(USP6764226): span

    $$ Provision is made to remove the RF feed to each probe 19a at fixed intervals of time so that the discharge rate of the related series capacitor 27, which is essentially a linear function of the positive ion flux to the probe, can be measured. / 固定した時間幅で各プローブ19aに対する無線周波の供給を取り止めるような供給がなされるため、前記プローブに対して本質的に正のイオンフラックスの線形関数である直列のコンデンサ27の放電速度が計測され得る。(USP6458239): interval

    $$ The molecular weight was measured by Gel Permeation Chromatography using mixed gel columns and narrow molecular weight PMMA standards for calibration. / その分子量を、キャリブレーションのために、混成ゲルカラムと幅が狭い分子量のPMMA標準を用いてゲル浸透クロマトグラフィーによって測定した。(USPA03013822): narrow

    $$ As best shown in FIG. 5, magnetized portions 72, 74 have thicker or larger ends 73 and narrower or smaller ends 71 with a gradually changing thickness therebetween. / 図5に最もよく示すように、磁性部分72、74は、厚みのある即ち大きな端部73と、び狭幅の即ち小さな端部71とを有し、これらの端部間で厚さが徐々に変化する。(USP6288534): narrower

    $$ Installation is continued until the breakout unit at the free end of the fibre unit 1 seats within the wider portion of the groove 25 in the input member 22a. / 据え付けは、ファイバユニット1の自由端にあるブレークアウトユニットが入口部材22a内の溝25の広幅部分内に位置するまで続けられる。(USP5749565): wider

    $$ The number of communications units provided within the subscriber terminal will typically be determined based on a trade-off between the cost of the unit, and the desired bandwidth to be provided for data transfer. / 加入者端末内の通信装置数は、通常、装置のコストと、データ転送用に設定される所望の帯域幅のどちらを取るかによって決まってくる。(USPA02018462): bandwidth

    $$ The CD-ROM drive 25a can optionally be utilized in order to save bandwidth. / 帯域幅を節約するため、任意選択でCD-ROMドライブ25aを使用することができる。(USPA02042917): bandwidth

    $$ The gap is typically less than 10 microns. / このギャップは、典型的には10μ未満である。(USP7062110): gap

    $$ As a result, the optical light output pulses are also of equal color, intensity and duration. / その結果、光学的光出力パルスは、同じ色、強度および幅となる。(USP6433483): duration

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  • 外れた / 外れる

                            目次はこちら

    外れた / 外れる

    (OFF)
    $$ Between each of the units 7, 8, 10 and 2 is a bandpass filter 12, 13, 14 to remove off-band interference and image frequenc…

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  • Windy City

    It seems as though the decision in Facebook v. Windy City Innovations (CJ Prost, O’Malley, Plager) should be handed down soon. I noted the oral argument of this case back in August; but, you might want to check out the oral argument if you missed that earlier post. It is an interesting and well-argued oral […]

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  • The Top Five European IP Developments of 2019—and Five to Watch for 2020

    As the year winds down, IPWatchdog is running a series of articles on the top stories of 2019 and what’s ahead for the year to come. In Europe, all eyes will be on Brexit and its effect on IP rights, the Unwired Planet case, and the Skykick trademark decision, among others. Overall, IP law developments across the EU have offered decidedly more clarity for IP owners than in the United States this year. Here are the highlights:  

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  • The Top Five European IP Developments of 2019—and Five to Watch for 2020

    As the year winds down, IPWatchdog is running a series of articles on the top stories of 2019 and what’s ahead for the year to come. In Europe, all eyes will be on Brexit and its effect on IP rights, the Unwired Planet case, and the Skykick trademark decision, among others. Overall, IP law developments across the EU have offered decidedly more clarity for IP owners than in the United States this year. Here are the highlights:  

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  • Preliminary Injunctions and Costs

    A couple of months ago I noted with dismay the CJEU’s recent decision in Bayer v. Richter, which appears to exempt patent owners from having to compensate defendants from having been excluded from the market during the pendency of a preliminary injunction that is subsequently lifted after the patent is found to be invalid or not infringed.  (See posts here and here.)   On a related–and from a policy perspective, sounder–note is a recent decision of the Danish High Court, as reported by Anders Valentin on the Kluwer Patent Blog a few weeks back.  The article, titled “Danish High Court radically changes its course on costs awards,” reports a decision in which a preliminary injunction was granted but later vacated, and the defendant sought an award of costs.  According to the author, in previous cases Danish costs awards were “typically . . .  only a fraction of the costs actually incurred.”  In this case, however, the Maritime and Commercial High Court awarded “legal costs in an amount reflecting those generally applicable in  the IP practice area as well as substantial and suitable amount of the fair costs actually incurred,” as well as costs for expert statements and assistance from a patent agent.  According to the author, the court was persuaded to deviate from prior Danish practice, which was far less generous as to costs, in view of the CJEU’s 2016 decision in United Video Properties.  In that case, which I previously discussed here, the court concluded that article 14 of the Enforcement Directive “precludes national legislation providing flat-rates which, owing to the maximum amounts that it contains being too low, do not ensure that, at the very least, that a significant and appropriate part of the reasonable costs incurred by the successful party are borne by the unsuccessful party”; and that “to the extent that the services, regardless of their nature, of a technical adviser are essential in order for a legal action to be usefully brought seeking, in a specific case, to have such a right upheld, the costs linked to the assistance of that adviser fall within ‘other expenses’ that must, pursuant to Article 14 of Directive 2004/48, be borne by the unsuccessful party.”

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  • AUTM Foundation, Apio Innovation Transfer, Local Practitioners Hold First-Ever U.S.-India IPR Education Initiative

    In 2019, the first-ever United States-India collaboration on intellectual property rights (IPR) education was launched. Program participants included entrepreneurs, students, and academic faculty. The initiative brought together multiple governments and agencies for a blending of ideas and priorities that elevated the experience for participants and advanced U.S.-India relations. The outcome was a sense of U.S.-India ‘team’ in collaboration to advance the cause of intellectual property…

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  • 挟む

                            目次はこちら

    挟む

    (SANDWICH)
    $$ Sandwiching the polymer membrane and porous electrode layers is an anode fluid flow field plate 14 and a cathode fluid flow field pla…

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  • HIPAA in the waiting room

    The abbreviation/acronym for the “Health Insurance Portability and Accountability Act” is HIPAA.Imagine walking into a doctor’s office and seeing HIPAA referenced as “HIPPA.”Then, on suggesting the office change the offending sign, being told that “HIP…

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  • The Year in Patents: The Top 10 Patent Stories of 2019

    As we prepare to enter a new year—and a new decade—it is time once again to look back on the year behind us to assess its impact for the IP world. All in all, it was very much a year of “almosts.” While the Supreme Court is still considering some cases that could herald massive change for patent law, its most notable move this year has largely been to keep its head planted firmly in the sand, particularly when it comes to Section 101 and patent eligibility, signaling that it seems to either…

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  • Starting the Patent Process on a Limited Budget

    If you are an inventor new to inventing, you undoubtedly believe you’ve come up with an idea, or two or three, that could really be successful. That eternal optimism and belief in one’s self is precisely what every inventor needs to succeed. Now, if you are like the so many others who have walked in your footsteps before you, you’ve probably started researching how to patent an idea but have quickly become bombarded with information from a variety of sources.  “I have no clue where to start,…

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  • Starting the Patent Process on a Limited Budget

    If you are an inventor new to inventing, you undoubtedly believe you’ve come up with an idea, or two or three, that could really be successful. That eternal optimism and belief in one’s self is precisely what every inventor needs to succeed. Now, if you are like the so many others who have walked in your footsteps before you, you’ve probably started researching how to patent an idea but have quickly become bombarded with information from a variety of sources.  “I have no clue where to start,…

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  • 配分

                            目次はこちら

    配分

    –>分配

    (DISTRIBUTE)
    $$ All operations relating to synchronisation, reference, distribution and calibration are implemented via the data link. / 同期、リファレンス、配分及び較正に関連する全ての動作は、該データリンクを介して実施される。(USP8089395)

    $$ Video replay nodes may be distributed across a LAN and a WAN. / ビデオ再生ノードは、LANおよびWANにわたって配分してもよい。(USP7619972)

    $$ The weight distribution is ideal for fast craft. / 重量配分は高速船にとっては理想的である。(USP6332818)

    (OTHERS)
    $$ To form a Bipolar potential of about 2.5-2.8 volts on each of the bipolar elements in a stack, one needs to prorate the potential applied to the terminal electrodes to account for the number of bipolar elements and inter element spacings. / スタック内の双極性要素のそれぞれの上に約2.5~2.8ボルトの双極電位を形成するために、双極性要素および要素間間隔の数に相当する、電極端子に印加される電位を配分する必要がある。(USP8747644): prorate

    $$ The step of apportioning the braking force may be fully automated. / このブレーキ力を配分するステップは、完全に自動化されていてもよい。(USP8376273): apportion

    $$ Such considerations are of great significance in the design of video encoders, where the efficient allocation of bits is essential. / そのような考察事項は、ビットを効率的に配分することが不可欠である映像符号器の設計の際、非常に重要である。(USP8254438): allocate

    $$ Thus, to increase the load-balancing properties of the network, it is desirable that the topology be as symmetric as possible. / このようにして、ネットワークの負荷最適配分特性を高めるためには、トポロジが可能な限り対称であることが望ましい。(USP6553020): balance

                            目次はこちら

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  • The Most High-Profile Patents of 2019

    With the end of 2019 upon us, the holiday season is a great time to take a look back at the most influential patents—rather than patent stories—representing a variety of important developments from this year. As we explore some of the patents and technologies that have had the greatest impact on the previous year, our focus will be upon both patents that have led to court decisions having major ramifications on the U.S. patent system, as well as those patents representing major advances in…

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  • Washington Insiders Weigh In on What Mattered in 2019

    As the year draws to a close, we reflect on what mattered most in the world of intellectual property during 2019.?It was a particularly active year on IP issues, with important events in the courts, Congress, and agencies. Below we have highlighted a few of the most significant activities. Compare our list to yours and let us know what you think!? 

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  • Proposed Inventor Rights Act Would Overrule eBay, Award Infringer’s Profits

    As reported earlier on Patently-O (here and here) and on IP Watchdog, Representatives Danny Davis and Paul Gosar recently introduced a bill titled the Inventor Rights Act of 2019.  The bill appears to be a variation on the Inventor Protection Act, a bill I blogged about a little over a year ago.  Like that bill, which went nowhere, the present bill would be something of a train wreck, though fortunately I think it has little chance of passing.  The bill defines an “inventor-owned patent” as “a patent with respect to which the inventor of the invention claimed by the patent or an entity controlled by that inventor—(1) is the patentee; and (2) holds all substantial rights.” It would add a new section 330 to the U.S. Patent Act that would, among other things, prohibit the PTAB from conducting IPRs, PGMs, or CBMs with respect to inventor-owned patents, without the consent of the inventor (“The United States Patent and Trademark Office shall not undertake a proceeding to reexamine, review, or otherwise make a determination about the validity of an inventor-owned patent without the consent of the patentee”); and would largely overrule TC Heartland by allowing inventors to file suit in any venue in which “an inventor named on the patent in suit conducted research or development that led to the application for the patent in suit,” or “where a party has a regular and established physical facility that such party controls and operates, not primarily for the purpose of creating venue, and has—(A) engaged in management of significant research and development of an invention claimed in a patent in suit prior to the effective filing date of the patent; (B) manufactured a tangible good that is alleged to embody an invention claimed in a patent in suit; or (C) implemented a manufacturing process for a tangible good in which the process is alleged to embody an invention claimed in a patent in suit . . . .”  As for remedies, sections 330(c) and (d) would largely overrule eBay and would allow for awards of infringer’s profits:
    (c) INJUNCTION.—

    (1) PRESUMPTION.—Upon a finding by a court of infringement of an inventor-owned patent not proven invalid or unenforceable, the court shall presume, respectively, that—

    (A) further infringement of the patent would cause irreparable injury; and

    (B) remedies available at law are inadequate to compensate for that injury.

    (2) OVERCOMING THE PRESUMPTION.—A presumption described under subparagraphs (A) or (B) of paragraph (1) may be overcome if the infringing party shows clear and convincing evidence that the patentee would not be irreparably harmed by further infringement of the patent, including evidence of unreasonable delay by the patentee from the date on which the infringement was known or reasonably could have been known to the patentee.

    (d) RECOVERY.—A patentee that asserts a claim for infringement of an inventor-owned patent in a civil action under subsections (a), (b), (c), (f), or (g) of section 271 may elect, at any time before final judgment is entered by the court, recovery under this subsection in lieu of damages under section 284. If an election for recovery under this subsection is made, the following provisions apply upon a finding of infringement:

    (1) PROFIT DISGORGEMENT.—The court shall award the patentee the profits from the use made of the invention by the infringer. In assessing profits the patentee shall be required to prove only the infringer’s revenues resulting from the infringement; the infringer must prove all elements of cost or deduction claimed.

    (2) INTEREST AND COSTS.—The court shall award the patentee the costs described under section
    1920 of title 28.

    (3) INFRINGEMENT FOUND WILLFUL.—If the court finds the infringement to be willful, the court may award the patentee damages equal to no more than three times the amount of the profits found in paragraph (1).

    (4) ATTORNEYS FEES.—The court shall award the patentee any amount of their attorneys fees that exceeds 10 percent of the amount of the profits and damages of paragraphs (1) to (3).’’

    Most of what I said in 2018 about the Inventor Protection Act applies here, so I’ll just repeat it:
    This just boggles the mind.  Although, as I have written elsewhere on several occasions, there is a theoretical argument to be made in favor of requiring an intentional infringer to disgorge its profits attributable to the infringement (that is, the profit it earned above what it would have earned from the use of the next-best available noninfringing alternative), perhaps as an alternative to enhanced damages, I don’t think it makes sense as a remedy for infringement generally due to its potential overdeterrent effect.  And as the above text indicates, the bill contemplates that courts could award disgorgement and still award (up to) treble damages for willful infringement . . . . Would any of this be tied into the economic value of the invention, that is, the value to the user over and above the value the infringer would have accrued from using the next-best noninfringing alternative?  

    More to the point, have any of the sponsors of this bill thought at all about the rent-seeking and gaming that would ensue from enacting a class of protections solely for the benefit of inventor-owned patents?  Or about how any of this would affect consumers?  
    I certainly understand that patent litigation (including, most definitely, the damages portion of trial) can be enormously expensive, and that there may be benefits in considering reforms that would simplify some aspects of it, particularly when the stakes are comparatively small.  (I talk about some of this stuff in my Patent Damages Heuristics paper; and I would suggest in addition that reforms such as creating a small(er)-claims-type court patterned after the Intellectual Property Enterprise Court in the U.K. might be worth considering.)  But the proposals floated . . . strike me as rather poorly thought out.

    For more of my thoughts on why we don’t need to introduce a presumption of irreparable harm (e.g., because the evidence suggests that eBay has had, if anything, a positive impact on innovation), see my testimony before the U.S. Senate Subcommittee on Intellectual Property Rights (here and here), and my follow-up responses to questions.  For discussion of disgorgement, see this chapter from Patent Remedies for Complex Products.  Finally, for information from an organization that favors the law, see here; I would note that the webpage seems a bit inaccurate in implying that, under the bill, disgorgement would apply in the case of willful infringement.
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  • Proposed Inventor Rights Act Would Overrule eBay, Award Infringer’s Profits

    As reported earlier on Patently-O (here and here) and on IP Watchdog, Representatives Danny Davis and Paul Gosar recently introduced a bill titled the Inventor Rights Act of 2019.  The bill appears to be a variation on the Inventor Protection Act, a bill I blogged about a little over a year ago.  Like that bill, which went nowhere, the present bill would be something of a train wreck, though fortunately I think it has little chance of passing.  The bill defines an “inventor-owned patent” as “a patent with respect to which the inventor of the invention claimed by the patent or an entity controlled by that inventor—(1) is the patentee; and (2) holds all substantial rights.” It would add a new section 330 to the U.S. Patent Act that would, among other things, prohibit the PTAB from conducting IPRs, PGMs, or CBMs with respect to inventor-owned patents, without the consent of the inventor (“The United States Patent and Trademark Office shall not undertake a proceeding to reexamine, review, or otherwise make a determination about the validity of an inventor-owned patent without the consent of the patentee”); and would largely overrule TC Heartland by allowing inventors to file suit in any venue in which “an inventor named on the patent in suit conducted research or development that led to the application for the patent in suit,” or “where a party has a regular and established physical facility that such party controls and operates, not primarily for the purpose of creating venue, and has—(A) engaged in management of significant research and development of an invention claimed in a patent in suit prior to the effective filing date of the patent; (B) manufactured a tangible good that is alleged to embody an invention claimed in a patent in suit; or (C) implemented a manufacturing process for a tangible good in which the process is alleged to embody an invention claimed in a patent in suit . . . .”  As for remedies, sections 330(c) and (d) would largely overrule eBay and would allow for awards of infringer’s profits:
    (c) INJUNCTION.—

    (1) PRESUMPTION.—Upon a finding by a court of infringement of an inventor-owned patent not proven invalid or unenforceable, the court shall presume, respectively, that—

    (A) further infringement of the patent would cause irreparable injury; and

    (B) remedies available at law are inadequate to compensate for that injury.

    (2) OVERCOMING THE PRESUMPTION.—A presumption described under subparagraphs (A) or (B) of paragraph (1) may be overcome if the infringing party shows clear and convincing evidence that the patentee would not be irreparably harmed by further infringement of the patent, including evidence of unreasonable delay by the patentee from the date on which the infringement was known or reasonably could have been known to the patentee.

    (d) RECOVERY.—A patentee that asserts a claim for infringement of an inventor-owned patent in a civil action under subsections (a), (b), (c), (f), or (g) of section 271 may elect, at any time before final judgment is entered by the court, recovery under this subsection in lieu of damages under section 284. If an election for recovery under this subsection is made, the following provisions apply upon a finding of infringement:

    (1) PROFIT DISGORGEMENT.—The court shall award the patentee the profits from the use made of the invention by the infringer. In assessing profits the patentee shall be required to prove only the infringer’s revenues resulting from the infringement; the infringer must prove all elements of cost or deduction claimed.

    (2) INTEREST AND COSTS.—The court shall award the patentee the costs described under section
    1920 of title 28.

    (3) INFRINGEMENT FOUND WILLFUL.—If the court finds the infringement to be willful, the court may award the patentee damages equal to no more than three times the amount of the profits found in paragraph (1).

    (4) ATTORNEYS FEES.—The court shall award the patentee any amount of their attorneys fees that exceeds 10 percent of the amount of the profits and damages of paragraphs (1) to (3).’’

    Most of what I said in 2018 about the Inventor Protection Act applies here, so I’ll just repeat it:
    This just boggles the mind.  Although, as I have written elsewhere on several occasions, there is a theoretical argument to be made in favor of requiring an intentional infringer to disgorge its profits attributable to the infringement (that is, the profit it earned above what it would have earned from the use of the next-best available noninfringing alternative), perhaps as an alternative to enhanced damages, I don’t think it makes sense as a remedy for infringement generally due to its potential overdeterrent effect.  And as the above text indicates, the bill contemplates that courts could award disgorgement and still award (up to) treble damages for willful infringement . . . . Would any of this be tied into the economic value of the invention, that is, the value to the user over and above the value the infringer would have accrued from using the next-best noninfringing alternative?  

    More to the point, have any of the sponsors of this bill thought at all about the rent-seeking and gaming that would ensue from enacting a class of protections solely for the benefit of inventor-owned patents?  Or about how any of this would affect consumers?  
    I certainly understand that patent litigation (including, most definitely, the damages portion of trial) can be enormously expensive, and that there may be benefits in considering reforms that would simplify some aspects of it, particularly when the stakes are comparatively small.  (I talk about some of this stuff in my Patent Damages Heuristics paper; and I would suggest in addition that reforms such as creating a small(er)-claims-type court patterned after the Intellectual Property Enterprise Court in the U.K. might be worth considering.)  But the proposals floated . . . strike me as rather poorly thought out.

    For more of my thoughts on why we don’t need to introduce a presumption of irreparable harm (e.g., because the evidence suggests that eBay has had, if anything, a positive impact on innovation), see my testimony before the U.S. Senate Subcommittee on Intellectual Property Rights (here and here), and my follow-up responses to questions.  For discussion of disgorgement, see this chapter from Patent Remedies for Complex Products.  Finally, for information from an organization that favors the law, see here; I would note that the webpage seems a bit inaccurate in implying that, under the bill, disgorgement would apply in the case of willful infringement.
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