• この時(時点)
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    $$ The problem may then be mathematically soluble although the solution will now depend on the values chosen for the now fixed variables. / 問題は、こうして数学的に解法可能になると考えられるが、解は、ここで、この時点で固定である変数に対して選択された値に依存することになる。(USP8346521)

    $$ With the venting now stopped, as a result of closure of sensing delay valve 35, the main control volume 14 begins to re-pressurise via the line 15. / 検出遅延バルブ35の閉止の結果として、この時点で通気が停止されると、管路15を介する主制御ボリューム14の加圧が再開される。(USP8276584)

    $$ The cantilever arms 9 are now loaded radially, and exerting a resultant force urging the slidable sleeve 5 off the needle hub 7. / この時点では、カンチレバーアーム9は、半径(放射)方向に荷重がかけられ、そして摺動可能スリーブ5を針ハブ7から外れる方向に推進する合力を発揮する。(USP8235950)

    $$ The housing 82 containing the lancet piston 81 may now be detached from the forward end of the driving apparatus 88 and discarded. / ランセットピストン81を含むハウジング82は、この時、駆動装置の前端88から取り外され、捨てられ得る。(USP8092394)

    $$ The vapour now produced was condensed and collected, as follows. / この時、以下のようにして、生成された蒸気を凝縮して収集した。(USP7622140)

    $$ Ignition failed at an air temperature of about 86℃, at which point emissions were extremely high. / 空気温度が約86℃で、点火に失敗した。この時点で排出物が非常に多くなった。(USP8875685)

    $$ The communications link is defined at this point. / 通信リンクはこの時点で定義される。(USP8699300)

    $$ At this point the contents of the condenser are removed. / この時点で、凝縮器の内容物が除去される。(USP7622140)

    $$ The reaction mixture was stirred at room temperature for 20 h, at which point TLC showed no starting material remained. / 反応混合物を室温で20時間撹拌し、この時点で、TLCにより、出発物質が全く残っていないことが示された。(USP7592448)

    $$ At this point, the IC register 154 is decremented to reach 0.(USPA01047466)

    $$ The third switching element 12 should be open at this time. / 第3スイッチング要素12は、この時、開状態になっているべきである。(USP8860388)

    $$ At this time further ions are preferably prevented from entering the ion trap 2. / この時点で、更なるイオンがイオントラップ2に入射できないようにするのが好ましい。(USP8344316)

    $$ At this time, presentation to the user will stop. / この時点でユーザへの提示は停止する。(USP8135852)

    $$ In this time the change in voltage must be approximately 1V. / この時点において、電圧変化はほぼ1Vでなければならない。(USP8106982)

    $$ By using high boiling point solvents, the amount of evaporation occurring in this time can be reduced. / 高沸点溶媒を用いることにより、この時間中に起こる蒸発量を低減することができる。(USP8084767)

    $$ The compiled version is not available for execution at this time.(USPA02029357)

    $$ At this time the loop terminates and the instruction fetching unit 46 continues issuing instructions from the processor packet after the last loop-body instruction, i.e. the processor packet containing…(USPA01047466)

    $$ Hence, the pattern number 626 is recovered by the query manager 105 at step 420 and at this stage any sub-patterns are also identified by query manager 105. / よって、パターン番号626が、工程420で、クエリ・マネージャ105によって回復され、この時点で、何れかのサブパターンがクエリ・マネージャ105によって識別される。(USP8386436): stage

    $$ The mat 10 lies atop the support surface 12 which in this instance is a table of an infant’s highchair and has a slight concavity 31 in its relaxed configuration acting as a base sucker holding it to the surface. / マット10は、この時点では幼児用の背の高い椅子のテーブルにある支持表面の上に横たわっており、該表面に底部を吸引して保持するように働く弛緩した状態のわずかな凹面31を有する。(USP8251340): instance

    $$ The clutch clamp load is then further reduced as is the throttle in order to maintain the new ratio speed. / クラッチ締め付け負荷はこの時、新たな比の速度を維持するために、スロットルに合わせさらに減少される。(USP8171814): then

    $$ When this happens the tail portion 14c engages the slots 38 in the flanges 34 and this locks the side wall 14 in the erect position and prevents the rod 20 from rotating about its axis. / この時、尾部14cがフランジ34内のスロット38に係合され、これによって、組立て位置にある側壁14がロックされ、側壁14がロッド20の軸の周りを回転することが防止される。(USP8166581): happen

    $$ At this instant the annular release collar will accelerate and move to the release position. / この時、環状解放襟部は、加速して解放位置へ移動する。(USP8083274): instant


  • Property Rights, but only To the Extent Needed
    in: Patently-O  | 

    Property Rights, but only To the Extent Needed

     By Dennis Crouch

    In addition to its patent law jurisprudence, the Federal Circuit also handles appeals from the US Court of Federal Claims (CFC).   The CFC hears monetary claims against the U.S. Government – including breach of contract, takings, and unlicensed patent use under 28 U.S.C. Section 1498. The CFC also meets in the same Madison Place building as the Federal Circuit.

    The Federal Circuit’s new decision in Crow Creek Sioux Tribe v. United States, App. No. 2017-2340 (Fed. Cir. August 17, 2018), revolves around a water-rights takings claim against the U.S. Government.  The particular claim stems from two dams across the upper Missouri River that limit the Tribe’s ability to use and enjoy river water. The tribe sued in 2016. However, the case was dismissed for failure to state a claim.  The Federal Circuit has now affirmed that decision – holding that the tribal water rights are only a weak form of property.  In particular, the appellate held that the tribal property right in the water flow only extends to the amount of “to the extent needed to accomplish the purpose of the reservation.”  Quoting Winters v.

    Continue reading Property Rights, but only To the Extent Needed at Patently-O.

  • The CRISPR Tug of War
    in: biologics, Biotechnology, CAFC, Caribou Biosciences, courts, CRISPR, CRISPR-Cas9 system, Editas Medicine, Federal Circuit, Gene Patents, Guest Contributor, Guest Contributors, Harvard, IP News, IPWatchdog Articles, IPWatchdog.com Articles, mit, patent applications, Patent Litigation, patent trial and appeal board, Patently-O, patents, PTAB, roche, Technology & Innovation, The Broad Institute, University of California, USPTO  | 

    The CRISPR Tug of War

    The University of California (“UC”) and The Broad Institute, Inc. (“Broad”) are among the leaders in the development of CRISPR technology.  Both UC and Broad filed patent applications for claims broadly drawn to CRISPR-Cas9 systems and methods of DNA editing.  These parties are currently engaged in litigation over patents concerning the potentially most lucrative application of CRISPR technology – the use of CRISPR-Cas9 in plant and animal (eukaryotic) cells.  The outcome of this litigation…

Federal Circuit Creates New (Non-Alice) Hurdle For Software Patents – Mondaq News Alerts (registration)

Boing Boing
Federal Circuit Creates New (Non-Alice) Hurdle For Software Patents
Mondaq News Alerts (registration)
CLS Bank Int’l, 134 S. Ct. 2347 (2014), dozens of courts have declared scores of patents to be invalid as not satisfying the requirements of §101 of the patent statute. The Federal Circuit recently issued a decision that provides the same result but
Hope for Computer-Related PatentsJD Supra (press release)
That Medical Device Invention Can’t Be Patentable … Can It?Med Device Online (press release)

all 11 news articles »

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  • Federal Circuit Overturns Patent Trial And Appeal Board Decision On Claim … – Mondaq News Alerts (registration)

    Federal Circuit Overturns Patent Trial And Appeal Board Decision On Claim
    Mondaq News Alerts (registration)
    In a decision with important consequences for patent challenges before the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (“PTAB” or “Board”), the Federal Circuit, on June 17, 2015, substantially overturned the PTAB’s final written
    Federal Circuit Remands Because PTAB’s Claim Construction Was JD Supra (press release)
    Federal Circuit issues first reversal & remand of an inter partes review in Lexology (registration)

    all 4 news articles »

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  • The Supreme Court in Starbucks (HK); on adjectives and reluctance to embrace change

    The 13 May ruling of the UK Supreme Court in Starbucks (HK) and another v British Sky Broadcasting Group  was well summarized by fellow Kat David Brophy. To remind Kat readers, the Supreme Court held that a claim for passing off required proof of goodwill as evidenced by actual business activity by the plaintiff in the jurisdiction. Mere reputation in the absence of such business activity, made more likely by the ease of international travel and communications, is not sufficient. This Kat could go either way on the point at issue. The Court ruled as it did and the result is not unreasonable. Aside from the result, this Kat found two notable issues in the back story to the judgment.

    The first point addresses the Court’s use of adjectives. This Kat is as guilty as anyone in violating the rule that one should stick to subjects and verbs, firm in his belief that adjectives can play a role in good writing. At their best, adjectives can be emotive to the benefit of the writer and reader alike. Less usefully, as the polymath Harvard professor Steven Pinker reminds us in his 2014 book, The Sense of Style, adjectives can also serve as a qualifier that serves to hedge the statement being made. The risk of using an adjective is the manner by which it may detract from the force of the noun that it is modifying. Against this background, consider the following words in the judgment in paragraph 47:

    “In other words, I consider that we should reaffirm that the law is that a claimant in a passing off claim must establish that it has actual goodwill in this jurisdiction, and that such goodwill involves the presence of clients or customers in the jurisdiction for the products or services in question.”

    “Actual goodwill”—what does this mean, the Kat asks? The issue before the Court had been framed in terms of the distinction between reputation and goodwill, not whether the claimed goodwill is “actual”. In the court of first instance, Mr Justice Arnold had concluded in paragraph 146 that

    “I accept that the reputation which PCCM’s NOW TV service had acquired amongst UK residents in the three ways I have described by 21 March 2012 was modest, but I do not consider that it was de minimis.”

    However, the plaintiff had failed to prove that it had goodwill in the jurisdiction, because it did not have customers in the jurisdiction. Proof of reputation, yes, but proof of goodwill, no. Within this analytical paradigm, the Court’s reference to “actual” goodwill is misplaced. Does this mean that there is such a thing as “non-actual” goodwill (i.e., perhaps, reputation)? If so, what does “non-actual” goodwill entail? If not, the use of the adjective merely confuses the reader regarding what is required by the Court to meet the proof of goodwill standard.

    This Kat can already hear the whisper—“but didn’t the lower court itself rely on an adjective to qualify the nature of the reputation acquired by the plaintiff?” Indeed, yes, but the adjective in that case was used to indicate the strength of the reputation, not its presence or absence. While the use of “modest” may not have been strictly necessary, it did not detract from the court’s ultimate ruling–while the plaintiff enjoyed reputation, whatever its strength, the plaintiff did not meet the judge-made standard that required proof of customers in the jurisdiction.

    The second point addresses the explanation by the Court in paragraph 49 why it declined to change what, it is reasoned, is the prevailing common-law rule regarding proof of goodwill:

    “It is of course open to this court to develop or even to change the law in relation to a common law principle, when it has become archaic or unsuited to current practices or beliefs. Indeed it is one of the great virtues of the common law that it can adapt itself to practical and commercial realities, which is particularly important in a world which is fast changing in terms of electronic processes, travel and societal values. Nonetheless, we should bear in mind that changing the common law sometimes risks undermining legal certainty, both because a change in itself can sometimes generate uncertainty and because change can sometimes lead to other actual or suggested consequential changes”.

    The last sentence of this paragraph is bewildering. Of course, change in the common-law (or in anything else) will undermine certainty; if it does not, then it does not amount to change. But being wary about changing the law, because it will bring about a change in the law, in addition to being tautological, stands in contrast to what a living and breathing judicial system based on judge-made law should be doing in the face of changing commercial and technological circumstances. Whether or not John Maynard Keynes said that “when the facts change, I change my mind, what do you do?”, the observation is true—we should embrace change when appropriate. The Court is of a different view. Nissim Taleb has argued that an over-concern with maintaining the short-term resiliency of a system may have the result of ultimately leaving the system unequipped to deal with one too many challenges. In this Kat’s view, this observation applies as well to legal change in the face of commercial and technological developments. At the least, the reluctance to change because it leads to change should not in and of itself be a reason.

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  • Purdue University a leader in patent output with 93 – South Bend Tribune

    Chattanooga Times Free Press
    Purdue University a leader in patent output with 93
    South Bend Tribune
    The patents issued to Purdue represent innovations from nearly all of the university’s core research areas, including engineering, agriculture, science, computer science, technology, biomedicine, pharmaceuticals, health sciences, information technology
    Patent madness: Purdue granted 93 in 2014Journal and Courier
    UA Makes List of Top 100 US Patent ProducersArkansas Business Online
    2014 UK Patent Applications Up From 2013Mondaq News Alerts (registration)
    Chattanooga Times Free Press -Atlanta Journal Constitution -Boston Business Journal (blog)
    all 32 news articles »
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  • Pots and kettles, glass houses and stones — the USA and Canada exchange views on jurisdiction

    In this guest post, long-time Katfriend Dan Bereskin (Bereskin & Parr LLP) gently chides the United States for its regular criticism of its northern neighbour for failure to take sufficient steps to deal with piracy and counterfeiting. The catalyst for this rebuke is the handing down by the Court of Appeal of British Columbia a few days ago of its keenly-awaited decision in Equustek’s dispute with Google.  Read on.

    On 16 June 2015, in a meeting convened by the World Trade Organization to review Canada’s trade regime in relation to agriculture and intellectual property, Deputy US Trade Representative Michael Punke commented on the recent Canadian Combating Counterfeit Products Act, declaring
    “The United States is disappointed that the new law does not apply to pirated and counterfeit goods in customs transit control or customs transshipment control in Canada … The United States urges Canada to provide its customs officials with full ex officio authority to improve its ability to address the serious problem of pirated and counterfeit goods entering our highly integrated supply chains”.

    Conveniently ignored by Mr Punke is the fact that for most of its adolescent existence as an emerging world power, the United States was a pirate nation when it came to protection of intellectual property.  Not only did it deny copyright to foreign authors for generations until US authors began to be noticed outside the USA, but US copyright law maintained the notorious manufacturing clause until 1986, and the USA did not adhere to the Berne Convention until 1989.  Also, until 2011 with the enactment of the America Invents Act, US patent law biased interference proceedings in favour of domestic inventors by requiring reduction to practice in the USA as a basis for determining priority of invention in interference proceedings. 

    With this background, consider the following decision of the Court of Appeal of British Columbia (BC) in  Equustek Solutions Inc. v Google Inc., 2015 BCCA 265, released on 15 June 2015.  This is an appeal from a decision of the trial division of the Supreme Court of British Columbia [reported almost exactly a year ago on the IPKat weblog by Dan’s colleague Scott MacKendrick here]. The defendants to the original action are persons who were found to be dealing in counterfeit goods, and the plaintiff succeeded in obtaining an injunction against them as well as Google who was not a party to the original action. The succinct Court of Appeal headnote reads as follows:

    The plaintiffs alleged that the defendants designed and sold counterfeit versions of their product. They sued for trademark infringement and unlawful appropriation of trade secrets, and obtained injunctions prohibiting the defendants from carrying on their business. The defendants continued to carry on business, but did so in a clandestine manner using a variety of websites, and relying on web search engines to direct customers to those sites. The plaintiffs successfully applied to the court for an injunction prohibiting Google, which operates the world’s most popular search engine, from delivering search results pointing to the defendants’ websites. Google appealed, arguing that the injunction was beyond the jurisdiction of the court, that it improperly operated against an innocent non-party to the litigation and that it had an impermissible extraterritorial reach.

    Google had agreed to remove several hundred webpages from search results on google.ca, but the plaintiff argued this was insufficient, because the majority of online sales were to persons who would not have searched on google.ca, and because the defendants could and did move the accused content to different webpages on their websites.  Google was unwilling to block an entire category of URLs, sometimes referred to as “mother sites”, from its search results worldwide.

    The case is interesting and important because Google was not a party to the litigation and is a non-resident corporation, and also because the injunction crossed international boundaries. 

    British Columbia: sunny days

    Under the BC Court Jurisdiction and Proceedings Transfer Act, territorial competence over the action between the plaintiffs and defendants was found to be sufficient to establish territorial competence over the injunction application. Although Google does not have employees, business offices, or servers in BC, its activities in gathering data through web crawling software, in distributing targeted advertising to users in British Columbia, and in selling advertising to British Columbia businesses were found to be sufficient to uphold the lower court’s finding that the court has in personam jurisdiction over Google. The injunction did not violate principles of comity.  The Court of Appeal therefore dismissed Google’s appeal.

    As for Google’s argument that other jurisdictions around the world could similarly claim jurisdiction, the Court stated “it is the world-wide nature of Google’s business and not any defect in the law that gives rise to that possibility”. Compare Merpel’s observation:
    Merpel marvels at the fact that a litigant such as Google can enjoy jurisdiction over most of planet Earth as a sort of de facto default, while courts have to make quite an effort to cast a judicial shadow that exceeds the terrestrial borders of their respective jurisdictions. “

    The Equustek decision demonstrates that Canadian law can in appropriate cases and with proper safeguards abate counterfeiting by agile wrong-doers.  Canada has little or no reason to accept the long-standing USA complaint that it does not do enough to abate counterfeiting.  As the ancient proverb counsels, “Those who live in glass houses should not throw stones”.

    Google is entitled to seek leave to appeal to the Supreme Court of Canada.  

    This Kat notes with amusement that the word “British” and the depiction of the sun on the British Columbia flag represent the notion of the British Empire as being the Empire on which the sun never set.  Nowadays the real empire on which the sun never sets is … Google.

    Canada under attack illustration from Reagan Plus Cats blog.

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  • FRAND in India: JIPLP’s first Open Access article

    “FRAND in India: The Delhi High Court’s emerging jurisprudence on royalties for standard-essential patents” by J. Gregory Sidak (Criterion Economics), has just been published online by the Journal of Intellectual Property Law & Practice (2015) doi: 10.1093/jiplp/jpv096.  This is a significant “first” for JIPLP, being the first time the journal has published an Open Access article.

    The article is distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/4.0/) and yuou can read the article in full, without payment, here.  The licence permits unrestricted reuse, distribution, and reproduction in any medium, provided the original work is properly cited.

    The abstract of this article reads as follows:

    Indian jurisprudence on fair, reasonable, and non-discriminatory (FRAND) licensing practices for standard-essential patents (SEPs) is at a relatively nascent stage. Unlike US and EU courts, which have dealt with cases concerning calculating a FRAND royalty for a considerable time, Indian courts and the Indian antitrust authority—the Competition Commission of India (CCI)—have only just begun to decide such cases.

    In its initial orders in the first two antitrust complaints concerning SEPs, the CCI seemed to favour using the smallest saleable patent-practising component (SSPPC) as the royalty base to determine a FRAND royalty. However, in the short time since the CCI’s orders, the Delhi High Court has rendered contrary decisions in two SEP infringement suits. The Delhi High Court’s decisions use the value of the downstream product as a royalty base and rely on comparable licences to determine a FRAND royalty. The Delhi High Court’s decisions are not only consistent with sound economic principles, but also indicate that the court is responding to the judicial and industry trends in the rest of the world.

    Because the CCI is still investigating the antitrust complaints with respect to the same SEPs, the CCI could benefit from considering the legal and economic arguments in the Delhi High Court’s decisions. It would be counterproductive for the emerging FRAND jurisprudence in India if the judiciary and the competition authority take opposing views toward the rights of SEP holders and SEP implementers.

    This is an important step in JIPLP’s publishing activities. In the past, authors have sometimes been reluctant to submit articles for publication because they did not appreciate that JIPLP — a subscription-based title — also accepted content on an open access basis. Such articles are not only acceptable but are actually welcomed, and will be published if they additionally satisfy JIPLP’s peer reviewers of their merit.

    The logo reproduced above is an unofficial open access logo, designed by the Public Library of Science

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  • BLOG: We will offer equitable deals to any company and litigate regardless of nationality, says IP Bridge CEO

    Earlier this month, IAM reported on two significant patent portfolio acquisitions made by Japanese ‘sovereign patent fund’ IP Bridge. At the time, I wrote that the fund’s progress “has largely been shrouded in mystery” and that “many observers will have wondered if IP Bridge was faltering in meeting its objectives”. 

    Responding to this, Shigeharu Yoshii, CEO of IP Bridge, has been in touch with IAM to offer our readers some further insight into the fund’s current activities and how it has fared thus far. We thank him for the following commentary which he has written for the IAM blog:

    It cannot be denied that IP Bridge (IPB)…

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