Eventually, it was bound to happen. A patent application was filed by a machine. Well, not exactly. A human being filed a patent application naming a machine as the inventor.
The machine was an artificial intelligence machine described as a “creativity machine.” Its name was listed as “DABUS Invention Generated by Artificial Intelligence.” The invention was called “Devices and Methods for Attracting Enhanced Attention.”
Continue Reading No, Machines Cannot Be Inventors!
A party accused of infringing a patent may challenge the validity of the patent in the federal court infringement litigation or in separate administrative proceedings in the Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB). One of the methods available in the PTAB is an inter partes review (IPR), which was created by the America Invents Act.
In order to file a petition for IPR, the challenger must argue that some or all of the claims of the patent are invalid on certain grounds, including novelty and nonobviousness, and must show that there is a “reasonable likelihood” that they will prevail on at least one claim. The statutes require that a petition for IPR be filed within one year of the challenger being served with a complaint for patent infringement. 35 USC section 315(b). The PTAB reviews the petition and decides whether to institute IPR. The decision whether to institute IPR is not appealable. 35 USC section 314(d).
Continue Reading Supreme Court Limits Appeals to Prevent More Bad Patents
On March 31, 2020, the U.S. Patent and Trademark Office announced that, pursuant to the Coronavirus Aid, Relief, and Economic Security Act, certain deadlines for patent and trademark applications would be extended. The CARES Act authorizes the PTO to toll, waive, or modify any patent or trademark deadline in effect during the COVID-19 emergency. The announcements were made in written Notices of Waiver, one each for patents and trademarks, posted on the PTO’s website.
In order to exercise the power under the CARES Act, the PTO Director must determine that the COVID-19 pandemic materially affects the functioning of the PTO; prejudices the rights of patent applicants, trademark registrants, or patent/trademark owners; or prevents patent applicants, trademark registrants, or patent/trademark owners from making a filing or paying a fee in the PTO.
Continue Reading Patent, Trademark, and Copyright Deadlines Extended Due to COVID-19
An unborn baby’s DNA (“fetal DNA”) can be used to determine the sex of the baby as well as to test for conditions such as Down’s syndrome. In the past, procedures to get samples of fetal DNA for testing involved sticking a large needle through the abdominal wall and into the uterus of the mother to obtain amniotic fluid, but such procedures are invasive and can be life threatening in some cases. Sequenom Inc. devised and patented less invasive options and licensed them to Illumina, Inc. Ariosa Diagnostics, Inc. and others, however, challenged the patent eligibility of those options when accused of patent infringement.
Specifically, the various lawsuits have repeatedly brought into question whether the patent claims for these new prenatal tests and related methods are patent eligible under 35 U.S.C. §101 or if they are merely directed to ineligible natural phenomena. In fact, in 2015, the Federal Circuit found Sequenom and Illumina’s patents (the “Original Patents”) were invalid as unpatentable because they were directed to a natural phenomenon. This ruling raised many concerns in the industry as to which, if any, inventions of this type could be protected.
Continue Reading Federal Circuit: Sequenom’s Fetal DNA Claims Are Patent Eligible
On March 6, 2020, a Central District Court in UPL NA Inc. f/k/a United Phosphorous, Inc. v. Tide International (USA), Inc. et al, 8-19-cv-01201 (CDCA 2020-03-06, Order) (Ronald S.W. Lew), issued an order that may become more common place across courts. At the request of the parties, the Court issued a temporary stay of all discovery in the action because of the threat posed by the Coronavirus.
Specifically, the Court noted that the parties had jointly stipulated that “discovery efforts are being significantly impacted by the outbreak of coronavirus. Both parties have sought materials and testimony from witnesses who are located outside of the United States, including in China, and given current travel restrictions and quarantine rules, obtaining the discovery sought at this time is impractical, if not impossible.” Therefore, the Court found good cause to temporarily vacate the discovery dates presented in the parties’ joint request.
Continue Reading District Court Stays Discovery Deadlines Because of Coronavirus Threat but Keeps Markman Hearing on Calendar
