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Welcome to the Taft Intellectual Property Newsletter. This is the first issue of the Taft IP Newsletter and future issues are scheduled to be published quarterly. We welcome your comments and feedback on published articles and on articles you would like to see in future editions.
Taft's Intellectual Property attorneys handle a wide variety of intellectual property issues, both nationally and internationally. Our attorneys advise clients on intellectual property matters relating to patents, trademarks, copyrights, trade secrets, unfair competition, false advertising, right of publicity, licensing, open source, software and technology, websites and domain names. We have experienced, highly qualified litigators who bring and defend IP related infringement lawsuits throughout the United States. Clients include Fortune 500 companies, hospitals, universities and research institutions, mid-size and small companies, authors, artists, inventors, scientists, and entrepreneurs. |
When "Valid" Patent Claims Are Not Enforceable
Some valid patent method claims allowed by the U.S. Patent and Trademark Office and found novel over the prior art during litigation are not enforceable when infringed. The Federal Circuit Court of Appeals has ordered an en banc rehearing of two recent cases to consider this apparent discrepancy. Usually a panel of three judges from an appeals court hears and decides an appeal based on prior case precedent. However, when the appeals court considers overruling their precedent and revising their interpretation of the law, all of the judges for that circuit hear and decide the case en banc. Thus, a change may be coming.
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USPTO Expands Pre-Examination Interview Program
In May of 2011, the United States Patent & Trademark Office announced that its initial pilot program relating to pre-examination interviews was being enhanced and extended through May 16, 2012. Under the First Full Action Interview program, a patent applicant has the right to request (and have granted) an interview with the patent examiner assigned to their case before a first substantive official action on the merits is issued. Unlike the accelerated examination process, this program does not advance or accelerate the application's order of pendency with the Patent Office. It is, however, available to applicants at no additional cost, thereby making it much more economically attractive than the more expensive accelerated examination program.
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Therasense, Inc. v. Becton, Dickinson & Co.
On May 25, 2011, the United States Court of Appeals for the Federal Circuit (CAFC) evaluated the inequitable conduct defense asserted by the defendant in Therasense v. Becton, Dickinson & Co. and established a more stringent standard for determining inequitable conduct. In particular, the court established a knowing and deliberate standard for intent and a but-for standard for materiality as it relates to proving inequitable conduct.
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Stanford University v. Roche Molecular
An agreement to assign one's patent rights is not the same as a patent assignment. To most patent practitioners, this conclusion is obvious. But the Supreme Court granted certiorari in Board of Trustees of Leland Stanford Junior University v. Roche Molecular, 131 S.Ct. 2188 (2011) to answer the question of whether an agreement to assign one's patent rights was the same as a patent assignment when applied to the Bayh-Dole Act.
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