Saturday, 09 March 2013 21:05

SENATE PASSES PATENT REFORM ACT OF 2011

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On March 8, 2011, the U.S. Senate passed its version of proposed patent reform, the Patent Reform Act of 2011 (S.23), by a 95-5 vote. Among other things, the Patent Reform Act would generally establish a first-to-file system to replace the current first-to-invent system, bringing U.S. law closer to that of other jurisdictions around the world. Some commentators have noted that if ultimately signed into law, this bill would constitute the most significant patent law overhaul in over a half-century.
Thursday, 03 March 2011 21:03

IP IN THE FRCP

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It is fairly well known that the framers of the United States Constitution had a profound respect for intellectual property, and that Article I, Section 8, Clause 8 of the U.S. Constitution explicitly establishes copyrights and patents on a federal scope:
 

Last week, Advanced Cell Technology, Inc. (ACT) was granted a patent (U.S. Patent No. 7,893,315) for its “single-blastomere” technology that provides a non-destructive method for deriving human embryonic stem cells (hESC).  In ACT’s technique, a single cell is biopsied from an embryo and cultured to produce a hESC line.  The process does not destroy the embryo or impair the embryo’s subsequent development, hence the technique has been touted as “embryo-safe.”  This technique is similar to pre-implantation genetic diagnosis (PGD) that has been used in in-vitro fertilization (IVF) for many years. 

This past week, the Senate conducted hearings on the Combating Online Infringement and Counterfeits Act which, if passed, would provide the Attorney General with broad authority to shut down U.S. and foreign internet sites “dedicated to infringing activities.” The Act was introduced in September 2010 and unanimously approved by the Senate Judiciary Committee late last year; nevertheless, it has yet to receive a full vote on the Senate floor. If passed, the Act would require the U.S. Attorney General to independently investigate potentially infringing websites and submit these findings to a judicial board. The board would then determine whether the site is “dedicated to infringing activities"; if so, the government would (1) suspend operation and lock the domain name; (2) ban credit card companies and financial institutions from processing any domestic transactions related to the site; and (3) prohibit online advertisers from working with or sending traffic to the site. And, in what is perhaps the best news for copyright owners: the government would do all of this free-of-charge. Not surprisingly, then, the Act’s most ardent proponents include the RIAA, MPAA, and the Screen Actors Guild. 

Wednesday, 16 February 2011 21:00

GOOGLE DOES ART

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By this point, you may have already heard of the "Google Art Project": Google’s latest effort to increase universal access to the world’s information. The project, which was launched on February 1st, allows internet users to remotely access works of art in seventeen museums, including the MOMA and Frick Collection in New York, the Palace of Versailles, London's National Gallery, and the Van Gogh Museum in Amsterdam. The Project, which employs the same technology utilized in Google's "Street View" feature, allows individuals to virtually "walk" the halls of galleries and provides remarkably high-resolution reproductions that permit the inspection of individual brush strokes.
Wednesday, 19 January 2011 20:59

BIOTECH METHOD CLAIMS REMAIN PATENTABLE

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Late last year, the Court of Appeals for the Federal Circuit ruled that certain biotechnology method claims as applied to humans are patentable subject matter under 35 U.S.C. §101.  In Prometheus Labs. Inc. v. Mayo Collab. Serv., Docket 2008-1403 (Fed. Cir., December 17, 2010), on remand from the United States Supreme Court with instructions to revisit their previous ruling in view of the determination in Bilski, the Federal Circuit affirmed their initial decision that the patent claims at issue are valid and patentable.

The U.S. Supreme Court recently granted certiorari to Microsoft in a case involving patent invalidity.  Microsoft is challenging a Federal Circuit Court of Appeals finding of validity in favor of patent holder, i4i, in a case that has been long fought in the lower courts, and resulted in an award of over $200 million in damages to i4i.  In its decision, the Federal Circuit relied on its long standing precedent that patent invalidity must be proven by "clear and convincing evidence."

Friday, 01 October 2010 20:52

TREND IN FALSE PATENT MARKING CASES CONTINUES

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The proliferation of false patent marking claims asserted under 35 U.S.C. Section 292 continues.  Common examples of accused conduct include the placing of incorrect patent numbers or expired patent numbers on everyday products, such as plastic cup lids, disposable razors, etc. In such actions, the plaintiff essentially sues the defendant on behalf of the federal government, petitioning for a fine of up to $500 per falsely-marked article. As a ‘reward,’ the plaintiff is generally entitled to receive half of the penalty. This type of legal action, generally referred to as a qui tam claim, is a relatively uncommon relic of past jurisprudence. However, the number of actions for false patent marking cases has continued to rise since the well-known 2009 Solo Cup case (which involved expired patents marked on plastic cup lids). Indeed, some patent blogs are now tracking this trend in qui tam false patent marking cases.