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Infringement Defendant Attempts to Prevent/Undo Patent Issuance by APA Action

On Tuesday the CAFC heard arguments in the case of Pregis Corporation v. Kappos and Free Flow Packaging Intl. At issue in this case was a cross appeal of under the Administrative Procedure Act (APA) alleging that the USPTO had issued U.S. Patent 7,361,397 in an arbitrary and capricious manner. The ‘397 Patent is directed to plastic film used in machines that manufacture the now ubiquitous air pillows found in shipping containers.

Yet, rather than going through the time and effort to necessary to sue a government agency on a seemingly novel cause of action, why didn’t appellant Pregis simply seek reexamination of the ‘397 Patent? …
Continue Reading Can the USPTO Be Sued Under the APA for Issuing Bad Patents?

USPTO Considers Record Number of Requests for Patent Reexamination 

In fiscal year 2011 the USPTO initiated a total of 1133 patent reexamination proceedings (both ex parte and inter partes). The 2011 tally represents an overall increase in filings of about 7% relative to 2010 numbers.

Interestingly, while ex parte filings receded slightly, inter partes filings surged by 33% relative to 2010. In FY 2011 374 requests for inter partes patent reexamination were filed.

USPTO statistics for 2011 are found (here)

Ex parte patent reexamination proceedings are typically disfavored over inter partes reexamination proceedings as being too one-sided, and historically biased in favor of patent holders. Likewise, as patent reexamination is increasingly employed as a litigation tool, it is not surprising that the more robust proceeding is now…

Continue Reading Record Patent Reexamination Filings in 2011

Director Kappos to Speak at CLE Webinar Tomorrow

For those requiring some additional CLE for 2011, Director Kappos will be speaking at American University Washington College of Law tomorrow, November 30, 2011. The program is entitled “The America Invents Act: A Patent Law Game Changer in a 21st Century Global Economy.” CLE credit (1.5) is…

Crucial Funding Necessary to Implement America Invents Act

The “minibus” spending bill (H.R. 2112) passed by the House and Senate late Thursday was signed into law by President Obama last Friday. The bill temporarily solves USPTO’s funding problems through September 30, 2012 (end of fiscal year ‘012). The bill allocates at least $2.7 billion of…

Halloween Webinar to Discuss AIA Implementation Plans & Progress

Next Monday, the USPTO will host a free public webinar at 1PM to discuss the America Invents Act (AIA). USPTO participants in the webinar will outline the agency’s implementation plans, and answer a selection of questions submitted during the session. Questions should be submitted in …

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Changes & Funding Head to USPTO

With the imminent enactment of the Leahy-Smith America Invents Act (AIA) into law, the USPTO is preparing for a much needed  infusion of funding. Immediate funding relief comes by way of the 15% surcharge to patent fees included in the legislation. (See H.R. 1249, Sec. 11 Fees for Patent…

ABA Accepting Best Blog Nominations

Yes, you have seen this post before.

I tend to take it easy on Fridays (at least in the summer when readership falls off by week’s end anyway), just another groveling solicitation reminder to vote!

The American Bar Association (ABA) is now accepting nominations for the 100 best legal blogs.

Inter Partes Patent Reexamination Filings Pose Challenge to Lodsys

Late Friday, Google announced that it had filed inter partes patent reexamination requests against two of the now infamous Lodsys patents, 7,222,078, and 7,620,565. Over the past few months, Lodsys has been contacting iOS and Android application developers seeking license fees, and has begun suing others to enforce their patent rights (the patents are purportedly directed to application transactions among providers and users). An infringement suit was filed against 11 defendants in Texas, including EA, Take-Two Interactive, Atari and Rovio (of Angry Birds fame).

As a licensee, Apple has attempted to intervene in the ongoing litigation arguing that app developers are covered under the terms of their license. Google, perhaps unencumbered by the contractual obligations of Apple with respect to challenging validity, has opened up a new battle front for Lodsys at the the USPTO.

As ed.com/gadgetlab/2011/08/google-android-lodsys-patent/”>explained this past Saturday at Wired.com, Google announced the filing stating that:

We’ve asked the US Patent Office to reexamine two Lodsys patents that we believe should never have been issued. . …Developers play a critical part in the Android ecosystem and Google will continue to support them. [quote attributed to Google Senior Vice President and General Counsel, Kent Walker]

So, now what?…

Continue Reading Google Takes on Lodsys Patents at USPTO

Enactment of Patent Reform to Trigger Monumental Rule Making Effort

With so much of the current focus on Congress being centered around the debt ceiling debate, it is easy to forget about other legislative initiatives in the queue. Still, once the current crisis is resolved (or the can kicked down the road as the case…