July 30th, 2015
Today (July 30th), the Patent Office released an 11 page “July 2015 Update” on patent-eligible subject matter (or not). (A copy of the update and appendices can be found at the end of this post.) Most of the “Update” focused on clarifying the December 2014 revised guidance. Also released were new examples 21-26–including ones modeled on Flook and Diehr. None of the new examples related to the life-sciences. Also released were an Appendix 2 that indexed all of the examples released since December 2014, and an Appendix 3, summarizing all of the case law discussed.
So if you are a life sciences person, you need only peruse the “Update.” It spends considerable space discussing how to apply the December 2014 Guidance, but the takeaway is that you need to rebut the natural product exception with a showing of markedly difference characteristics (2A) or else you fall into the dreaded “significantly more” circle of Hell called 2B. There is also some attempt to clarify the role of the “Streamlined Analysis” and preemption, that I don’t think clarified anything and that Examiners ignore anyway.
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July 17th, 2015
Representative Goodlatte’s Innovation Act (H.R. 9) has been shelved for now, and will not receive a floor vote until September at the earlier. There is significant conflict between measures intended to deter patent trolls and the ability of non-profit institutional NPE’s to enforce their patents. Big Pharma wants “out” of IPR entirely. Action on the corresponding Senate Bill, S. 1137, will also be postponed.
A 3-page chart comparing major provisions of the bill with IPO positions is available on the IPO website.
July 13th, 2015
A guest post from Theresa Stadheim, attorney at Schwegman Lundberg & Woessner.
In In re: Cuozzo Speed Technologies, LLC, Appeal No. 2014-1301 (Fed. Cir. July 8, 2015, decision by Dyk), the Federal Circuit decided not to review the Patent Trial and Appeal Board (the “Board”) practice of construing patents under the broadest reasonable interpretation (BRI) standard.
Garmin petitioned the Board for inter partes review (IPR) of claims 10, 14 and 17 of Cuozzo’s U.S. Patent No. 6,778,074 (the ‘074 patent). Garmin contended that claim 10 was invalid as anticipated under 35 U.S.C. § 102(e) or as obvious under 35 U.S.C. § 103(a) and that claims 14 and 17 were obvious under § 103(a). Claim 10 recited:
A speed limit indicator comprising:
a global positioning system receiver;
a display controller connected to said global positioning system receiver, wherein said display controller adjusts a colored display in response to signals from said global positioning system receiver to continuously update the delineation of which speed readings are in violation of the speed limit at a vehicle’s present location; and
a speedometer integrally attached to said colored display.
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July 8th, 2015
Without a single “nay” vote, and with at least some noting that she will be the first woman of color to join the Fed. Cir., the Senate has confirmed Kara Fernandez Stoll, a litigation partner at Finnegan, to fill the seat vacated by Judge Rader’s resignation at the end of June. Soon-to-be Judge Stoll holds an BSEE degree from Michigan State and worked as an Examiner in computer/electronics art units before joining Finnegan.
As an EE, Stoll must have taken some chemistry, and she lists medical devices as an area of expertise on her resume. She also represented WARF in the Consumer Watchdog appeal, which, although the focus of the appeal was standing, involved a challenge to stem cell patents. The Fed. Cir. has been in need of more Judges with technical backgrounds. Judge Lourie was a chemist and Judge Moore holds an EE degree, but that’s about it. Congratulations to Ms. Stoll and to President Obama, who has appointed a number of Fed. Cir. judges with excellent qualifications.
IP LAW 360 – Senate Confirms Finnegan Atty To Fed. Circ. Seat