ContactPatent Reform 2010
Posted Friday, April 30, 2010 by Jim Ruttler.
The U.S. Department of Commerce has released a report supporting patent reform. The report essentially argues that patents are strongly linked to ecomonic growth and high paying jobs, but that the current patent system has a number of issues that are preventing full realization of these benefits. The most notable problems include the delay in obtaining patents and the expense of defending against questionable patents. The report argues that both of these issues contribute to uncertainty in the patent system. The primary solutions offered for addressing these problems include allowing the patent office to set its own fees, reducing the average pendency of patent applications, and improving post-grant review options of issued patents. The report can be read here: http://www.commerce.gov/s/groups/public/@doc/@os/@opa/documents/content/prod01_009147.pdf.
False Marking
Posted Friday, April 30, 2010 by Jim Ruttler.
It is permissible to mark products with patent numbers if they are reasonably covered by those patents. However, false marking, or marking products with patent numbers that unrelated to the products, is unlawful. It is possible for any member of the public to bring a false marking suit against the alleged violater as was the case in Forest Group v. Bon Tool. Although the statute permits damages of up to $500 per offense and the fact that each offense has been interpreted to mean each separate article falsely marked, the court in this case awarded damages equal to the revenue earned from all the falsely marked products. This is can be a hefty penalty when significant sales are made, so it is important to ensure that products are not marked inacurately.
Terms of Degree
Posted Sunday, April 18, 2010 by Jim Ruttler.
Claims that include terms of degree risk being invalidated for being indefinite. Examples of terms of degree include words such as substantially, approximately, readily installed, and the like. If these terms are used in claims, it is important to consider drafting other claims, such as dependent claims or other independent claims, that provide further specificity to the terms. These additional claims can serve as backup in the event the broader claims are invalidated. Additionally, providing a standard for measuring or determining the scope of the terms of degree should be included in the specification. For example, the specification can include details that substantially generally means above 50% or that approximately means within around 1 to 2 inches. The disclosure of such standards can minimize the chance of claims containing such terms being found indefininte.
Initial Appeal Brief Review at BPAI
Posted Sunday, April 18, 2010 by Jim Ruttler.
The Patent Office has announced new procedures for reviewing appeal briefs for compliance with formalities. Previously, appeal briefs could be rejected by examiners and another review panel for issues such as citing to paragraphs instead of line numbers and failing to include references to appendices that weren’t even present. With the changes, the Board of Patent Appeals will have the sole authority to determine whether appeal briefs comply with formalities. Furthermore, the Board of Patent Appeals has indicated that appeal briefs will not be rejected for failure to comply with formalities unless the failure prevents a decision on the merits of the case.
USPTO Proposes Option for Delaying Non-Provisional Fee
Posted Sunday, April 18, 2010 by Jim Ruttler.
The USPTO has proposed and is seeking comment on an option to delay payment of some of the fees associated with a non-provisional patent application. Currently, non-provisional application fees must be paid upon filing or within a couple of months after filing with a surcharge. The new procedure would allow a small portion of the non-provisional filing fees to be paid initially with the remaining portion of the fees to be paid within 12 months. This new procedure, coupled with a filing of a provisional patent application, would allow a potential delay of 24 months for payment of a bulk of application filing fees. More information can be found at http://www.uspto.gov/news/pr/2010/10_10.jsp.
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