Archives: Patents

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The Federal Circuit Reinstates an Apple Victory and Reestablishes the Limits of the Court’s Fact-Finding Function

Sitting en banc, the Federal Circuit recently issued its decision in Apple v. Samsung, a stunning rebuke of a panel of that same court, vacating the panel’s February 26, 2016 opinion, reinstating a $119.6 million jury award for Apple, and—perhaps most importantly—holding unequivocally that the court’s factual determinations must be confined to the record on appeal. … Continue Reading

Free Speech and Functionality

The Founding Fathers ensconced intellectual property rights into the fabric of the original Constitution. Article I, Section 8, Clause 8, of the United States Constitution grants Congress the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and … Continue Reading

U.S. Patent and Trademark Office Announces an Adjustment to Trademark Fees taking effect October 1, 2016

On May 27, 2016, the U.S. Patent and Trademark Office (USPTO) announced an adjustment to trademark fees that will take effect October 1, 2016 (the beginning of fiscal year 2017 for the U.S. Government). 81 Fed. Reg. 33619 (May 27, 2016). The good news for electronic filers using the USPTO’s TEAS and ESTTA filing systems, the fees are … Continue Reading

Supreme Court Makes Recovery of Treble Damages Easier in Patent Cases: Halo Electronics, Inc. v. Pulse Electronics, Inc.

In what is becoming a trend, the United States Supreme Court on Monday overturned longstanding Federal Circuit precedent, with the result that it should now be easier for a successful litigant to recover treble damages for pursuing patent infringement. When combined with the Court’s relaxation of the standards for awarding attorneys fees, the Supreme Court’s decision strengthens … Continue Reading

What is “Actual Notice”? The Federal Circuit Weighs in for Purposes of Pre-Issuance Patent Damages Under 35 U.S.C. 154(d)

Since 1999, U.S. patent law provides for pre-issuance patent damages of a reasonable royalty measured as far back as the date of the patent publication date (of the issued patent) if: (1) the published patent claims are substantially identical to the claims asserted into the issued patent, and (2) the alleged infringer had actual notice … Continue Reading

Justice Scalia and the Court’s Patent Case Docket

The weekend’s news about Justice Antonin Scalia’s passing was a shocker. Justice Scalia always appeared so vigorous that he seemed much younger than his 79 years. His high level of legal scholarship was always on display. Justice Scalia was nothing if not a formidable jurist. … Continue Reading

The Tortoise and the Hare: New USPTO Pilot Program Aims to Give the Tortoise a Little Boost

The U.S. patent system presents an interesting “tortoise and hare” dichotomy in which the pace of innovation and market forces continues to accelerate, thanks in part to the AIA switchover to a “first-to-file” system, while the USPTO struggles to keep up with the ever-increasing workload.  Although the backlog has been significantly reduced when it comes … Continue Reading

Suspicious Solicitations: Give “USPTO” Notices a Proper Sniff Test

Intellectual property is a valuable asset for any company or individual, and getting a patent or trademark application on file, and eventually granted, can be an exciting time. It is a paperwork-intensive process (notwithstanding that most U.S. filing is electronic these days), with lots of emails, notices, deadlines, and fees, to keep track of. Unscrupulous … Continue Reading

Patent Licenses (Still) Cannot Extend Beyond the Term of a Patent’s Expiration. But Look at What You Can Do in Tech Licenses.

The hard and fast rule in patent licensing is that demanding patent royalties for a patent that has expired is void against public policy. That was the rule established a half a century ago in Brulotte v. Thys Co. And that is still the rule after the decision in Kimble v. Marvel Entertainment handed down from the Supreme … Continue Reading

U.S. Patent Office Extends Program that Allows Start-Ups a Way to Defer Costs

The US Patent and Trademark Office has continued the Extended Missing Parts Pilot Program which gives US utility and plant patent applicants additional time to avoid paying large filing fees. The USPTO implemented the program in December 2010 and has been extending it over the last four years. It allows a patent applicant to claim priority to … Continue Reading

The Long Wait is Over: Review Standard on Appeal For Claim Construction is Now Clear Error

Today the U.S. Supreme Court handed down a significant decision impacting the appellate review of claim construction in patent infringement. In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Court held that that when reviewing a district court’s claim construction that includes underlying findings of fact, the Federal Circuit must apply a “clear error” standard of review … Continue Reading

A Year in Review

The Miller Nash IP Legal Team launched its IP Law Trends in January of 2014. It was a good start – 48 blog posts. And our blog and team will be further enhanced at midnight tonight when Miller Nash combines with the venerable Graham & Dunn to form a regional powerhouse:  Miller Nash Graham & … Continue Reading

Technology Will Cause Patents to Become an Issue in the Wine Industry

Originally published in the November 2014 issue of Practical Wine & Vineyard. None can argue against technology now pervading every aspect of wine production, storage and shipment—from patented grapes, harvesting machinery and methods, to bottling and packaging. Many stories on these topics in Wines & Vines itself illustrate this point. This march of technology is not unique to … Continue Reading

Alice Corporation’s Business Method Patents are Held Patent Ineligible Under 35 U.S.C. 101

Last Thursday, the U.S. Supreme Court handed down its long-awaited decision in the Alice Corporation v. CLS Bank case and held that method claims that merely require generic computer implementation fail to transform an abstract idea into a patent-eligible invention. This case will impact US patent owners, especially for computer software patents and business method … Continue Reading

Limelight Networks v. Akamai Technologies Decision Handed Down by the Supreme Court

Further to my earlier blog on the topic, Patent Infringement for Inducement by More Than a Single Entity? Still in Play, the U.S. Supreme Court handed down a unanimous decision in the long-awaited Limelight Networks, Inc. v Akamai Technologies, Inc. case today. The Supreme Court took another hard swipe at the Federal Circuit Court of Appeals, which had … Continue Reading

Nautilus, Inc. v. Biosig Instruments, Inc.

The Supreme Court today overturned Federal Circuit precedent regarding the law of indefiniteness of patent claims. The Federal Circuit had previously held that a patent claim passes muster under 35 U.S.C. §112, (a) [previously ¶2] and is not indefinite so long as the claim is “amenable to construction,” and the claim, as construed, is not “insolubly ambiguous.” … Continue Reading

U.S. Supreme Court Relaxes Standard for Recouping Attorney Fees in Patent Infringement Cases

In a move that may anticipate proposed reforms in Congress, the U.S. Supreme Court decided a pair of cases that will make it decidedly easier for prevailing parties in patent infringement lawsuits to recoup their attorney fees. The cases address the attorney fee-shifting provision of 35 U.S.C. § 285, which states only: “The court in … Continue Reading

New U.S. Patent Office Glossary Pilot Program Announced

Last year when everyone was up in arms about “abusive patent litigation,” the Obama administration issued a series of executive actions charging the U.S. Patent Office with finding ways to improve patent-claim clarity in high-tech patents as a means to strengthen the U.S. patent system. One of the actions charged the Patent Office to find ways to improve claim … Continue Reading

Federal Circuit Sets Itself Up For Another Supreme Court Challenge: Microsoft v. DataTern

The Federal Circuit issued a split decision today that once again tries to create a special rule for patent litigation that does not follow the rules usually applied to other civil litigation.  In Microsoft v. DataTern, the Federal Circuit was reviewing Microsoft’s and SAP’s successful challenge to infringement allegations leveled by DataTern against their customers.  Suing … Continue Reading

The Patent Exhaustion Doctrine and Method Patent Claims – ABA IP Roundtable, April 4

The Miller Nash IP team is pleased to host an ABA IP Roundtable at noon on April 4 in our Seattle office. Our topic, The Patent Exhaustion Doctrine and Method Patent Claims (Keurig Inc. v. Sturm Foods Inc. & Lifescan et al. v. Shasta), is sure to spur lively conversations concerning the decisions and the … Continue Reading

Cybor Rule for Claim Construction Remains Intact

Flip a coin for patent infringement outcome? That is what a lot of people—including federal district court judges—have thought, given that claim construction is solely a matter of law for judges to decide under the Cybor rule (taken from the 1998 Cybor Corp. v. FAS Technologies case). Claim construction pretty much determines the outcome of most patent litigation. So … Continue Reading

Copyright Protection and Useful Articles–Generally Not a Good Combination

Copyright protection is a relatively cheap and a very long term protection for works of authorship. But unfortunately, copyright protection in the United States generally does not cover the protection of useful items (think furniture, lamps, beverage bottles, now hookahs) unless the protectable work of authorship is either physically or conceptually separable from the useful article. This … Continue Reading