Last week’s column was the first of two columns discussing some of the most common misconceptions or myths about patents. Here is the second part, starting with number five on my list.
5. A Patent Does Not Give the Patent Owner the Right to Practice the Invention.
Inventors and patent owners often assume that a
Patent law is a complicated area of law governed by a confusing set of statutes and regulations that are interpreted by the United States Patent and Trademark Office (PTO) and the federal courts. Patents themselves are sometimes almost unintelligible and, if intelligible, may require many hours of reading to understand. It is no wonder that there are a lot of misconceptions or myths about patents.
This is the first of two columns in which I will discuss a few of the most common aspects of patent law that are misunderstood.
1. Ideas Are Not Patentable.
Clients often want to patent an idea. Ideas are not patentable – inventions are patentable.
Continue Reading Patent Myths Corrected – Part One
Over the last 15 years, the United States Patent and Trademark Office has issued many business method patents. Many of these patents seem overly broad or obvious, and the tech industry has been strongly critical of the PTO for issuing these patents.
Congress has been listening. Under a new program enacted as part of the America Invents Act (“AIA”), business method patents can be challenged in a specific procedure in the PTO. The program, called the “Transitional Program for Covered Business Method Patents” and referred to as CBM Review, is set forth in section 18 of the AIA. CBM Review went into effect in September 2012 and has a sunset provision of September 2020.
Under the CBM Review program, a defendant accused of infringement of a patent covering a business method may challenge the validity of the patent in the PTO. CBM Review is conducted before a new administrative law board, the Patent Trial and Appeal Board (“PTAB”). Section 18 (d)(i) of the AIA defines a covered business method to be a method or apparatus directed to data processing or other activities used in financial products or services. The statute excludes patents covering “technological inventions,” which the PTO has defined as inventions that solve a technical problem using a technical solution.
The purpose of CBM Review is to provide a quick and less costly alternative to federal court litigation for determining the validity of business methods patents. Under the CBM Review program, a patent may be challenged as invalid on any number of grounds, including that the claims are directed to unpatentable subject matter under 35 U.S.C. section 101, in particular, abstract ideas. Business method patents can also be challenged on the basis or prior art.
Continue Reading Challenging Business Method Patents
