A new PTO Director will face a patent system at a crossroads

The U.S. patent system is at a crossroads. See The Top 3 Reasons the U.S. patent system is in decline. In both 2016 and 2017, the Chinese government made significant improvements to its patent rules and laws. See China relaxing barriers to software and business method patents. As the Chinese landscape for patents and innovation continues to improve, we have to consider that more innovation might move to China, as investors flee in search of better legal protections – protections necessary to justify the speculative investment in early-stage high-tech innovative companies.

Time is of the essence for the U.S. patent system. The 2017 worldwide patent rankings of the U.S. Chamber of Commerce already shows the United States tumbling from 1st place into a tie for 10th place with Hungary.

With strong and principled leadership, it is not too late to turn the tide and restore the United States patent system to its former glory. With this in mind, I recommend in the strongest terms possible that the person selected as the next Director of the United States Patent and Trademark Office (USPTO) share a vision for a stronger U.S. patent system that is once again the envy of the world.

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07.26.17 | Patent Issues, posts, USPTO | Gene Quinn

Waiting on Aqua Products

Last December, the U.S. Court of Appeals for the Federal Circuit held an en banc rehearing of the In re: Aqua Products case, which questions whether a patent owner or a petitioner holds the burden of proving patentability of proposed amended claims during an inter partes review (IPR) proceeding at the Patent Trial and Appeal Board (PTAB).

More than seven months have passed since the en banc rehearing in Aqua Products without a decision from the Federal Circuit. It could be an indication that the court is working on handing down a ruling that would greatly alter PTAB practices relating to motions to amend. In the alternative, it could be an indication that there’s a split in opinion and the Federal Circuit is still making up its mind on the matter, with multiple opinions being prepared and circulated. Interestingly, an article on In re: Aqua Products published last August by The National Law Review noted that, in its decision to grant Aqua’s petition for en banc rehearing, the Federal Circuit asked an additional question of law: who holds the burden for persuading PTAB or producing evidence to challenge the patentability of claims amended by a patent owner. That by itself could be an indication that the Federal Circuit is interested in ruling in favor of patent owners in this case.

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ITC Commissioner F. Scott Kieff to leave International Trade Commission

ITC Commissioner F. Scott Kieff has publicly announced that he will be leaving the International Trade Commission and returning to his academic posts as a Professor at George Washington University Law School and a senior fellow at Stanford University’s Hoover Institution. Kieff’s last day at the ITC will be June 30, 2017.

Kieff, a Republican, was sworn in on Friday, October 18, 2013, as a Commissioner of the ITC. Nominated by President Barack H. Obama, he was confirmed by the U.S. Senate on August 1, 2013, for a term that would have expired on June 16, 2020.

Before being sworn in, Kieff took a leave of absence from his post as a Professor at the George Washington University Law School in Washington, DC, which he joined as a faculty member in the summer of 2009. Also before being sworn in at the ITC, Kieff resigned his roles at the Stanford University Hoover Institution, where he was the Ray & Louise Knowles Senior Fellow. Kieff will resume roles at George Washington University Law School and at Stanford University’s Hoover Institution effective July 1, 2017.

Before entering academia, Kieff practiced law for over six years as a trial lawyer and patent lawyer for Pennie & Edmonds in New York and Jenner & Block in Chicago and also served as a Law Clerk to Judge Giles S. Rich of the United States Court of Appeals for the Federal Circuit. After entering academia, he regularly served as a testifying and consulting expert, mediator, and arbitrator to law firms, businesses, government agencies, and courts.

Kieff’s research, teaching, practical experience has always focused on the law, economics, and politics of innovation, including entrepreneurship, corporate governance, finance, economic development, trade, intellectual property, antitrust, bankruptcy, medical ethics, technology policy, and health policy. Kieff was recognized as one of the nation’s “Top 50 under 45” by the magazine IP Law & Business in May, 2008, and was inducted as a Member of the European Academy of Sciences and Arts in March 2012.

Originally from the Hyde Park neighborhood in Chicago, Kieff became a lawyer in New York City and now lives with his family in Washington, DC. Before attending law school at the University of Pennsylvania, he studied molecular biology and microeconomics at the Massachusetts Institute of Technology and conducted research in molecular genetics at the Whitehead Institute for Biomedical Research in Cambridge, MA.

06.28.17 | ITC, Patent Issues | Gene Quinn

Trump’s proposed budget would give PTO $3.6 billion for FY 2018

Several weeks ago, President Donald J. Trump released his proposed FY 2018 budget under the title A New Foundation for American Greatness. A review of the budget and supporting Commerce Department Appendix suggests the United States Patent and Trademark Office (USPTO) has received everything it requested, and will not suffer fee diversion during the next fiscal year if the President’s FY 2018 budget passes Congress.

The President’s Message on FY 2018 Budget

“This Budget’s defining ambition is to unleash the dreams of the American people,” President Trump wrote in the Budget Message of the President accompanying the release of the FY 2018 budget. “This requires laying a new foundation for American Greatness.”

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06.27.17 | Patent Issues, posts, USPTO | Gene Quinn

Invention details need not be public to be prior art under AIA

The United States Court of Appeals for the Federal Circuit recently issued a major decision interpreting provisions of the America Invents Act (AIA), specifically the AIA on-sale bar provisions. In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the Federal Circuit panel of Judges Dyk, Mayer and O’Malley determined: “after the AIA, if the existence of the sale is public, the details of the invention need not be publicly disclosed in the terms of sale” for the sale to be invalidating. In so reaching this ruling, the Federal Circuit has largely done away with the belief that the AIA created some kind of “safe harbor” for sales that did not disclose the details of the claimed invention.

After first determining that a sale had occurred, the Federal Circuit turned to the language of the statute and the legislative history of the AIA. “We next address whether the AIA changed the meaning of the on-sale bar under 35 U.S.C. § 102 so that there was no qualifying sale as to the ‘219 patent,” Judge Dyke wrote.

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