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PTO Proposes Standardization of the Patent Term Adjustment Statement Regarding Information Disclosure Statements

by | Jul 21, 2022 |

The US Patent & Trademark Office (PTO) announced on July 12, 2022, that it intends to revise the rules pertaining to patent term adjustment to require that the patent term adjustment statement regarding information disclosure statements (IDS) be submitted on a PTO form. The PTO believes that the use of the form will streamline prosecution and be more accurate and efficient by eliminating the need for a manual review of the patent term adjustment statement.

The regulations in 37 CFR 1.704(c)(1) through (14) establish the circumstances that constitute an applicant’s failure to engage in reasonable efforts to conclude processing or examination of an application and the resulting reduction of any patent term adjustment. 37 CFR 1.704(d)(1) also provides a safe harbor for filing IDS. Filing only an IDS in compliance with §§ 1.97 and 1.98 or a request for continued examination with only a compliant IDS is not considered a failure to engage in reasonable efforts to conclude prosecution (processing or examination) of the application under 37 CFR 1.704(c)(6), (8), (9) or (10) if it is accompanied by the required statement. The statement required to accompany the paper or request for continued examination must affirm that each item of information contained in the IDS meets one of the following requirements:

  • It was first cited in any communication from a patent office in a counterpart foreign or international application or from the PTO, and this communication was not received by any individual designated in § 1.56(c) more than 30 days prior to the filing of the IDS.
  • It is a communication that was issued by a patent office in a counterpart foreign or international application or by the PTO, and this communication was not received by any individual designated in § 1.56(c) more than 30 days prior to the filing of the IDS.

The PTO proposes adding new paragraph (d)(3) to 37 CFR 1.704(d), which requires filers to submit the patent term adjustment statement under 37 CFR 1.704(d)(1) on a form PTO/SB/133 to derive the safe harbor benefit under 37 CFR 1.704(d). Form PTO/SB/133 includes the required statement described above. Filers who submit a 37 CFR 1.704(d)(1) patent term adjustment statement without using the form PTO/SB/133 and filers who submit the form PTO/SB/133 with any modification to the patent term adjustment statement will not receive the benefit of the safe harbor under 37 CFR 1.704(d). Under such circumstances, the IDS or the request for continued examination, with no submission other than an IDS, will be treated as unaccompanied by a patent term adjustment statement under 37 CFR 1.704(d)(1).

Comments on the proposed rule must be received by September 12, 2022, to ensure consideration.



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Clearly, the Disclosure Was an Error

by | Jul 21, 2022 |

The US Court of Appeals for the Federal Circuit affirmed a Patent Trial & Appeal Board (Board) finding that claimed subject matter was not disclosed in asserted prior art where the prior art reference contained an “obvious error of a typographical or similar nature that would be apparent to one of ordinary skill in the art,” even though the error went unrecognized and uncorrected for 20 years until an expert conducted an extensive analysis. LG Electronics Inc. v. ImmerVision, Inc., Case Nos. 21-2037; -2038 (Fed. Cir. Jul. 11, 2022) (Stoll, Newman, Cunningham, JJ.) (Newman, J., dissenting)

The issue before the Federal Circuit was whether an error in the prior art that remained uncorrected in the public domain for 20 years and took an expert many hours of analysis to uncover, was an obvious error that would meet the standard set in the 1970 Court of Customs and Patent Appeals (CCPA) case In re Yale. Since the CCPA is a predecessor court to the Federal Circuit, its decisions are mandatory authority. Under the Yale standard, “where a prior art reference includes an obvious error of a typographical or similar nature that would be apparent to one of ordinary skill in the art who would mentally disregard the errant information as a misprint or mentally substitute it for the correct information, the errant information cannot be said to disclose subject matter. . . . The remainder of the reference would remain pertinent prior art disclosure.”

The patent at issue pertains to capturing and displaying panoramic images using an objective lens. The claims require a certain image point distribution function and that the objective lens “compresses the center of the image and the edges of the image and expands an intermediate zone of the image located between the center and the edges of the image.”

LG’s expert reconstructed a lens depicted in an embodiment of the asserted prior art using information found in Table 5 of the reference. Based on this reconstruction, LG argued that certain limitations of the claims at issue were found in a prior art patent to Tada, and thus the claims at issue were obvious.

ImmerVision had its own expert attempt to create the same lens model based on the same information. However, ImmerVision’s expert noticed something was wrong, as the resulting output image from the lens was distorted. Upon further investigation, ImmerVision’s expert discovered that the disclosure in Tada Table 5, on which LG’s expert relied, was intended to correspond to a different embodiment. The inconsistency was caused by a transcription error from the Japanese priority application in terms of the embodiment associated with Table 5. It was undisputed that when the correct values were used, the subject matter was not disclosed.

The question on appeal was whether the Board correctly held that the error in Tada would have been apparent to a person of ordinary skill in the art such that the person would have disregarded the disclosure or corrected the error to meet the Yale standard. [...]

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Threat of ITC Exclusion Order Is Too Speculative to Constitute Irreparable Harm

by | Jul 21, 2022 |

The US Court of Appeals for the Federal Circuit affirmed a decision by a federal district court denying a defendant’s motion for a preliminary injunction seeking to enjoin a parallel International Trade Commission (ITC) investigation against it. The Federal Circuit agreed that the defendant’s alleged irreparable harm (a “cloud” over its business) was too conclusory and speculative to support relief. Koninklijke Philips N.V. v. Thales Dis Ais USA LLC, Case No. 21-2106 (Fed. Cir. July 13, 2022) (Moore, C.J., Dyk, Chen, JJ)

Koninklijke filed a complaint at the ITC requesting a Section 337 investigation based on alleged infringement by Thales of four patents designated essential to the 3G and 4G telecommunications standards. Koninklijke simultaneously filed a parallel district court action against Thales in the Delaware district court based on those four patents. At the district court, Thales moved for a preliminary injunction seeking to enjoin Koninklijke from pursuing an exclusion order at the ITC because of an alleged breach of contract. The district court denied that motion, and Thales appealed to the Federal Circuit.

Meanwhile, the ITC investigation continued, and the administrative law judge (ALJ) issued an initial determination finding no violation of Section 337 with respect to any of the four patents. Subsequently, the Federal Circuit held oral arguments on the district court appeal, during which the judges questioned whether there could be irreparable harm if the ITC were to adopt the ALJ’s determination and consequently not issue an exclusion order. Thales argued that the threat of an exclusion order had left a “cloud” over its business and cited customer concerns that Thales might not be able to deliver products in the future. The ITC subsequently affirmed the ALJ’s finding of no violation and terminated the investigation without issuing any exclusion order.

A week later, the Federal Circuit issued a decision affirming the district court’s denial of the preliminary injunction motion. The Court held that Thales had failed to meet its burden to establish irreparable harm because it had not presented any evidence that it had actually lost any customers, that any customers had delayed purchases or that it had struggled to gain new customers because of the threat from the ITC investigation. The Court also found that the cloud over Thales’ business and the potential loss of business were too speculative to justify a preliminary injunction.

Practice Note: While the ITC investigation was ongoing, Thales filed a civil action in France against Koninklijke—a fellow European company—alleging that Koninklijke’s attempt to obtain injunctive relief in the United States for standard essential patents constituted an anti-competitive act that violated French civil law. Thales sought EUR 13.5 million in damages for the legal fees that it had incurred in defending the ITC investigation.



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Tableware Designer Gets Heavenly Results on Its Pearly Plates

by | Jul 21, 2022 | ,

The US Court of Appeals for the Fifth Circuit reversed a district court decision, reversing the dismissal of a copyright claim based on lack of standing and finding ownership of the copyright in the claimant based on an assignment of that claim. The Fifth Circuit also found that the plaintiff had a protectible trade dress under the Lanham Act based on secondary meaning. Beatriz Ball, LLC v. Barbagallo Co., LLC, Case No. 21-30029 (5th Cir. July 12, 2022) (Jones, Haynes, Costa, JJ.) (per curiam).

Beatriz Ball, the founder of Beatriz Ball, LLC, alleged that Pampa Bay was marketing and distributing products that infringed on Ms. Ball’s registered copyrights and unregistered trade dress for its “Organic Pearl” line of tableware. Ms. Ball brought suit against Pampa Bay in Louisiana federal court, asserting claims for copyright infringement under the Copyright Act and unfair competition under § 43 of the Lanham Act.

Pampa Bay has marketed and distributed products similar to the Organic Pearl collection but made with cheaper materials since 2016. Ms. Ball alleged that Pampa Bay infringed upon her copyright and its unregistered trade dress because the products are confusingly similar and look and feel like the Organic Pearl trade dress in every way. The district court ruled against Ms. Ball, finding that it had not established that its unregistered trade dress acquired “secondary meaning” as is required for protection of an unregistered trade dress under the Lanham Act. The district court further held that Ms. Ball lacked standing to bring the copyright claims as a result of a lack of legal interest because when “Beatriz Ball Collection” transferred ownership in the copyrights to “Beatriz Ball, LLC,” the language of the assignment did not specifically transfer the right to a cause of action for prior infringements predating the assignment. The assignment clause in issue read:

Assignment. Assignor [Beatriz Ball and Beatriz Ball Collection] hereby irrevocably conveys, transfers, and assigns to Assignee [Beatriz Ball, LLC], and Assignee hereby accepts, all of Assignor’s right, title and interest in and to any and all copyrights, whether registered or not and whether or not applications have been filed with the United States Copyright Office or any other governmental body. This assignment expressly includes any and all rights associated with those copyrights.

The district court found that because the assignment did not specifically transfer the assignor’s right to causes of action for prior infringements, the LLC lacked standing to challenge infringements pre-dating the assignment. The district court therefore never reached the merits of the copyright claim.

On appeal, the Fifth Circuit first reviewed the standing issue to determine if the LLC owned the copyrights at the time of the alleged infringement or if the right to vindicate prior infringements had been effectively assigned to Ms. Ball. Reversing the district court’s ruling, the Court concluded that the LLC had standing to bring the suit as the actual copyright holder. The Court reasoned that § 411(b)(1), which provides that a registration with “inaccurate information” can support an infringement action [...]

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Patent Infringement Verdict Nixed over Judge’s Stock Ownership

by | Jul 14, 2022 |

The US Court of Appeals for the Federal Circuit reversed a district court’s opinions and orders and remanded the case for further proceedings before a different district court judge because the original judge had failed to divest all financial interests in the case. Centripetal Networks, Inc. v. Cisco Systems, Inc., Case No. 21-1888 (Fed. Cir. June 23, 2022) (Dyk, Taranto, Cunningham, JJ.)

Centripetal sued Cisco for patent infringement. The original district court judge presided over a 22-day bench trial, which included a more than 3,500-page record, 26 witnesses and more than 300 exhibits. The court heard final arguments on June 25, 2020. While the case was still pending before the district court, the judge learned that his wife owned Cisco stock, valued at $4,687.99. The district court judge notified the parties on August 12, 2020, that he had discovered that his wife owned 100 shares of Cisco stock. He stated that his wife purchased the stock in October 2019 and had no independent recollection of the purchase. He explained that at the time he learned of the stock, he had already drafted a 130-page draft of his opinion on the bench trial, and virtually every issue had been decided. He further stated that the stock did not—and could not have—influenced his opinion on any of the issues in the case. Instead of selling the stock, which might have implied insider trading given his knowledge of the forthcoming order, the judge placed it in a blind trust. Under the terms of the trust, the judge was to be notified when the trust assets had been completely disposed of or when their value became less than $1,000.

Centripetal had no objections. Cisco, however, filed a motion for recusal under 28 U.S.C. § 455(a) and (b)(4). The judge ordered Centripetal to file a response. On October 2, 2020, the court denied Cisco’s motion for recusal. On October 5, 2020, the court issued a 167-page opinion and order containing the judge’s findings that Cisco willfully infringed the asserted claims of the patents-at-issue and awarded Centripetal damages of more than $755 million, pre-judgment interest of more than $13 million and a running royalty of 10%. Cisco moved for amended findings and judgment under Rule 52(b) or a new trial under Rule 59(a)(2). The court denied both motions. Cisco appealed the district court’s findings and asserted that the judge was required to recuse himself under 28 U.S.C. § 455(b) absent divestiture under § 455(f) (the only exception to the bright line rule that a federal judge is disqualified based on a known financial interest in a party).

On appeal, the Federal Circuit addressed two issues: whether the district court judge was relieved of his duty to recuse under § 455(b)(4) because his wife had divested herself of her interest in Cisco under § 455(f), and, if the requirements of § 455(f) were not satisfied, a determination as to the proper remedy.

The Federal Circuit analyzed whether placement of the stock in a blind trust satisfied the [...]

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PTO Issues Report to Congress on Patent Eligible Subject Matter

by | Jul 14, 2022 |

On June 24, 2022, the US Patent & Trademark Office (PTO) issued a report to Congress titled “Patent Eligible Subject Matter: Public Views on the Current Jurisprudence in the United States.” The report comes in response to a March 5, 2021, letter from Senators Tillis (R-NC), Coons (D-DE), Hirono (D-HI) and Cotton (R-AR) expressing concern over a lack of consistency and clarity in US patent eligibility laws since the Supreme Court of the United States’ rulings in Alice Corp. v. CLS Bank International and Mayo Collaborative Services Inc. v. Prometheus Laboratories Inc. The PTO solicited public feedback until October 15, 2021, and the report summarizes the PTO’s findings based on the 141 comments it received.

The report found that supporters of the current state of the law on eligibility tended to be companies faced with abusive and costly litigation involving “overbroad” patents, mostly related to software. Those companies noted that the current law allows them to avoid or more efficiently resolve abusive and costly litigation. Some high-tech representatives noted that their investments and innovations have increased under current eligibility jurisprudence. Certain life sciences and patient advocacy organizations also favored the current law, noting its role in enhancing access to medical technologies.

Respondents critical of the current state of the law included many patent practitioners and innovative companies, especially companies involved in life sciences. These respondents stated that current law makes patents less available and rights less predictable and has inhibited investment in new technologies and companies. Several startups and small- and medium-sized enterprises also noted that the current law undermines innovation by decreasing the availability of private risk capital and works to concentrate markets in the hands of a few large, well-resourced entities, thereby decreasing competition. Some commenters stated that they no longer seek patents and instead rely on trade secrets, resulting in reduced public disclosure of technological innovations.

The PTO will continue to solicit feedback from stakeholders, including through listening sessions. The PTO noted that additional feedback and suggestions may be sent to 101@uspto.gov.



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PTO Lowers the Bar for Genericness Refusals

by | Jul 14, 2022 |

The US Patent & Trademark Office (PTO) recently issued Examination Guide 1-22, Clarification of Examination Evidentiary Standard for Marks Refused as Generic (Guide 1-22), which amends the PTO’s stance on the appropriate evidentiary burden for examining attorneys refusing registration based on genericness. Previously, the Trademark Manual of Examining Procedure (TMEP) required an examining attorney to meet the demanding “clear evidence” standard to establish the prima facie case necessary for a genericness refusal. Guide 1-22, however, sets forth a lesser burden, stating that examining attorneys need only sufficient evidence to support a “reasonable predicate” for finding a mark generic. The shift marks a clear departure from longstanding TMEP practice.

The PTO credits the US Court of Appeals for the Federal Circuit as the initial source of the “clear evidence” standard. In its 1987 case In re Merrill Lynch, Pierce, Fenner, and Smith, Inc., the Federal Circuit relied on language in the TMEP stating that “the showing [for a genericness refusal] must be based on clear evidence of generic use.” Following this decision, the TMEP was revised to include the “clear evidence” standard, and the Federal Circuit later found that “clear evidence” is equivalent to “clear and convincing evidence.”

Despite years of reliance on the “clear evidence” standard, Guide 1-22 asserts that “there is no statutory basis for applying a heightened standard.” The guide states that the Federal Circuit initially misinterpreted the TMEP: “Read in context, the term ‘clear’ was meant to convey the ordinary meaning of the term, not an evidentiary burden.” Further, the Federal Circuit’s interpretation of “clear evidence” as equivalent to “clear and convincing evidence” “was not intended by the TMEP and is inconsistent with the preponderance of the evidence burden the Federal Circuit requires to prove claims that a registered mark is generic in the inter partes cancellation context.”

Following issuance of Guide 1-22, the PTO revised the TMEP to reflect the “reasonable predicate” evidentiary standard for genericness refusals. (See TMEP § 1209.01(c)(i).)

Practice Note: Agency guidelines do not have the force of law, so it will be interesting to see how the Federal Circuit treats these updated guidelines.



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Stormy Weather Ahead: Lack of Causation Evidence Rains Out Appeal

by | Jul 14, 2022 |

The US Court of Appeals for the Tenth Circuit found that a trade secret owner lacked “non-speculative and sufficiently probative evidence of a causal nexus between Defendants’ alleged bad acts and [the trade secret owner’s] asserted damages,” and upheld a lower court’s summary judgment ruling for defendants. GeoMetWatch Corp. v. Hall, et. al, Case No. 19-4130 (10th Cir. June 29, 2022) (Holmes, Kelly, Lucero, JJ.)

GeoMetWatch (GMW) alleged misappropriation of trade secrets and multiple other complaints against several different groups of defendants, including the Hall defendants, Utah University Advanced Weather Systems Foundation (AWSF) defendants, and Utah State University Research Foundation (USURF) defendants. The lower court granted summary judgment to all defendants based on lack of non-speculative causation relating to lost profits, to the USURF and AWSF defendants based on governmental immunity under Utah law, and to AWSF on its contractual counterclaim. GMW appealed.

Background

GMW launched a venture for a new satellite-based weather-detecting senor system developed by USURF. GMW entered into a cooperation agreement with AsiaSat, a foreign commercial satellite operator on which GMW relied to secure funding from Export-Import Bank. There were two conditions precedent before AsiaSat would seek the loan: a guarantee for the loan and a convertible note. The Hall defendants were brought in to possibly provide the guarantee, and with the understanding that Hall would maintain confidentiality of GMW’s information. After reviewing the confidential information, Hall entered into a nondisclosure agreement (NDA) with GMW. Despite the NDA, Hall launched a competing company and sent a series of inflammatory emails regarding the state of GMW to AsiaSat. These actions became the basis for GMW’s complaint of trade secret appropriation. After failing to make payments to AWSF for the construction of the senor, and despite finding a replacement manufacturer, GMW never satisfied either of the conditions precedent and AsiaSat never applied for the loan. GMW eventually ran out of money and filed the underlying suit.

GMW argued that its lost profits stemmed from its failure to secure a loan with AsiaSat and Export-Import Bank because of the defendants’ trade secrets misappropriation and other bad acts. GMW relied on evidence such as a series of inflammatory emails from Hall stating that “GMW is in Trouble,” along with an invitation to do business with a new company that the Hall defendants launched reviewing GMW’s confidential information. The lower court found that GMW had failed to provide more than speculative evidence that the defendants’ actions, with or without GMW’s confidential information, caused GMW’s lost profits.

The Tenth Circuit’s Ruling

At the Tenth Circuit, GMW argued that the lower court ignored “non-speculative” evidence from which it could be inferred that the defendants’ actions were the cause of lost profits. The Court noted that the district court found that none of GMW’s experts actually opined that any of the defendants’ actions caused the lost profits. Although one expert put forth a theory based on GMW losing its “first-mover advantage,” the Court found that no specific facts were offered to support this theory. The [...]

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Expert Testimony Excluded Based on Inadmissible Evidence

by | Jul 14, 2022 |

Circuit Judge Bryson, sitting by designation in the US District Court for the District of Delaware, excluded a plaintiff’s damages expert opinion because the evidence relied upon by the expert was unreliable and therefore inadmissible, but permitted the plaintiff to serve short addendum opinions. IOENGINE, LLC v. PayPal Holdings, Inc., C.A. No. 18-452-WCB (D. Del. June 23, 2022) (Bryson, J.)

IOENGINE asserted two patents against PayPal and Ingenico in Delaware. Less than a month before the first trial, the district court struck essentially all of IOENGINE’s damages report, including testimony regarding a non-party license, two previous jury verdicts on a related patent involving different defendants and different products, and two settlements related to those jury verdicts. The order left IOENGINE with essentially no damages case to present at trial.

Two days after the order issued, IOENGINE requested a conference to discuss the damages issues and the parties engaged in letter briefing. IOENGINE asked the district court to reconsider its decision, arguing that the expert’s testimony was admissible under FRE 703, even if the underlying licenses, verdicts and settlement agreements were not admissible. Alternatively, IOENGINE requested the ability to serve short addendums to its technical and damages reports, or a bifurcation or adjournment of the trial date. PayPal and Ingenico argued that FRE 703 did not make the damages expert’s testimony admissible, and that any addendum or change in trial date would be highly prejudicial.

Judge Bryson ruled that FRE 703 did not permit IOENGINE’s damages expert to testify about otherwise inadmissible evidence. First, the district court looked to the Advisory Committee Notes for FRE 703. The notes explained that FRE 703 applied to situations such as a medical expert relying on hearsay statements by patients and their families and opinions by other medical professionals, because a medical expert would rely on that sort of information in diagnosing and treating a patient. Next, the court turned to a leading Third Circuit case holding that the reliability requirements of FRE 702 are equivalent to the requirements in FRE 703. The Third Circuit further held that the evidence on which an expert relies must meet a threshold requirement of reliability. Finally, the court cited another district court order that applied this standard. The order stated that the court was not judging the credibility of the expert witness, but rather whether the opinion was based on reliable data.

In balancing the parties’ various interests, Judge Bryson allowed IOENGINE to file addendums, but because these issues were of IOENGINE’s own creation, he attempted to find the solution that was most fair to PayPal and Ingenico. The court bifurcated the first trial, allowing the liability portion to go forward but holding the damages trial in abeyance. If IOENGINE prevailed on infringement and validity, a damages trial would be set. The second trial was adjourned until the first trial was resolved. The court gave IOENGINE one week to submit its short addendums (one to two pages for the technical expert and no more than 10 for the [...]

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Copyright Claim in Digital Message Format Fizzles Out

by | Jul 14, 2022 |

The US Court of Appeals for the Third Circuit found that digital message formats and messages generated using those formats were not copyrightable and thus vacated a preliminary injunction against an alleged infringer marketing a competing product using the same format and messages. Pyrotechnics Management Inc. v. XFX Pyrotechnics LLC et al., Case No. 21-1695 (3d Cir. June 29, 2022) (Hardiman, Nygaard, Fisher, JJ.)

Pyrotechnics, a manufacturer of hardware and software for fireworks displays, developed a system for controlling fireworks displays. The system contains a control panel that accepts user input and creates messages that it sends to field modules, which decode the messages and perform the desired task (e.g., igniting a firework). FireTEK reverse-engineered Pyrotechnics’ hardware to learn its communication protocol and, in 2018, developed a router that could send the same messages to Pyrotechnics’ field modules as the Pyrotechnics control panel. FireTEK marketed its router as a replacement for Pyrotechnics’ control panel.

In 2019, Pyrotechnics filed a deposit copy document with the US Copyright Office describing the communication protocol used in its fireworks control panel. Pyrotechnics’ communication protocol includes three components: a custom digital message format, specified individual messages that conform to the format and communicate specific information and a transmission scheme describing how individual digital messages are converted into a format that can be sent over the wires that connect the control panel to the field modules. The deposit copy also identified four specific messages (each a series of 12 bytes) that used Pyrotechnics’ digital message format. The Copyright Office issued a certificate of registration.

Pyrotechnics filed suit against fireTEK for copyright infringement, claiming that fireTEK violated Pyrotechnics’ copyright in the communication protocol it uses to control fireworks displays. Pyrotechnics sought and received a preliminary injunction from the district court enjoining fireTEK from selling or distributing its allegedly infringing router. FireTEK appealed.

FireTEK contested the district court’s likelihood of success finding, arguing that Pyrotechnics’ copyright in its communication protocol was invalid. The Third Circuit agreed, finding that neither the digital message format used by Pyrotechnics in its communication protocol nor the individual messages conforming to that format were copyrightable.

Turning first to Pyrotechnics’ digital message format, the Third Circuit found that the format was an uncopyrightable idea, not a protectable expression of ideas. Relying heavily on its 1986 decision in Whelan Assocs. v. Jaslow Dental Lab’y, the Court explained that “the purpose or function of a utilitarian work is the work’s idea.” For Pyrotechnics’ communication protocol, the purpose and function of the protocol (and therefore its idea) was to enable Pyrotechnics’ control panel and field modules to communicate with each other. As the Court explained, the digital message format created by Pyrotechnics was an essential part of that idea, and there was no other means of achieving the purpose of the communication protocol (permitting communication between the control panel and field modules) without using Pyrotechnics’ digital message format. Therefore, the Court determined that Pyrotechnics’ digital message format was part of an uncopyrightable idea.

The Third Circuit also [...]

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