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Featured Articles
Gene Patents: Getting Beyond Witch Trials (Jan. 16, 2013) - Joe Allen writes about the USPTO roundtable on genetic testing, and how the critics of gene patents simply don't provide evidence for the views they express.
Pharma Law and Business - A Monthly Roundup January 2013 (Jan. 15, 2013) - Ed Silverman summarizes recent events. White House misses Sunshine guidelines deadline, doctors prescribe brand name drugs to please patients, JP Morgan Healthcare and more.
Do Patent Applicants have a Chance at the CAFC? (Jan. 14, 2013) - Scott Daniels writes that the answer is no, not much of a chance, thanks to the standard of review of PTAB decisions on appeal from the USPTO.
Crowdsourcing Superior Patent Research with Article One Law Firm Partner Program
In Fiscal Year (FY) 2012, the number of potentially anticompetitive patent dispute settlements between branded and generic drug companies increased significantly compared with FY 2011, jumping from 28 to 40, according to a new Federal Trade Commission staff report. The study also found that in nearly half of these settlements, branded firms may have used the promise that they would not develop or market an authorized generic (AG) as a payment to stall generic drug firms from marketing a competing product.
The FTC staff report found that drug companies made 40 potential pay-for-delay deals in FY 2012 (October 1, 2011 through September 30, 2012). The figure is significantly higher than last year’s total of 28 deals, and is the highest of any year since the FTC began collecting data in 2003. Overall, the agreements reached in the latest fiscal year involved 31 different brand-name pharmaceutical products with combined annual U.S. sales of more than $8.3 billion.
Of the 40 final settlements that potentially involve pay-for-delay, FTC staff found that 19 – nearly half – involved agreements by the branded firm not to market an AG product that would compete with the generic company’s product. Such “no-AG” promises are valuable to generic firms, as they significantly reduce the level of competition the new generic entrant will face, allowing the generic firm to secure greater market share and extract higher prices from consumers.
Tuesday’s list of issued patents published by the U.S. Patent & Trademark Office includes 27 patents assigned to Cupertino, California device manufacturer Apple Inc. Each week, Apple is awarded a few patents that pertain to their electronic devices or computer systems. This week, Apple was awarded a new design patent for its laptops, as well as patents protecting methods of either creating more rugged touchscreens or finding useful social network recommendations through data analysis.
Here are a few of those recent Apple patents that caught my attention. For more news relating to Apple patents and published patent applications please see our other articles, which can be found at: http://www.ipwatchdog.com/tag/apple-patents/
This most recent design patent issued by the U.S. Patent & Trademark Office describes a series of design modifications to Apple’s line of laptop computers, including the device manufacturer’s MacBook and PowerBook models. Claim 1 of this patent protects, “the ornamental design for a portable computer, as shown and described.”
All patented design changes pertain to the layout of the keyboard and trackpad on the laptop’s lower housing. A few different design embodiments are protected in this issued patent; patent diagrams that have a shaded area containing the laptop’s trackpad indicate a metallic surface. As with last week batch of issued patents, Former-CEO and device industry guru Steve Jobs is credited as an inventor on this patent filed in March 2012, months after his passing the previous October.
The Federal Trade Commission upheld an Administrative Law Judge’s decision that the marketers of POM Wonderful 100% Pomegranate Juice and POMx supplements deceptively advertised their products and did not have adequate support for claims that the products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, and that they were clinically proven to work.
The Commission issued an Opinion upholding Chief Administrative Law Judge D. Michael Chappell’s May 2012 Initial Decision that the POM marketers made false or deceptive advertising claims.
The Commission Opinion found that the POM marketers made deceptive claims in 36 advertisements and promotional materials challenged at trial after issuing a September 2010 administrative complaint – going beyond Judge Chappell’s ruling, which found false or deceptive claims in only 19 of the challenged items.
The Smithsonian’s Arts and Industries Building located on the National Mall in Washington, D.C.
WASHINGTON — The U.S. Department of Commerce’s United States Patent and Trademark Office (USPTO) and the Smithsonian Institution have signed a Memorandum of Agreement for the USPTO to support the Smithsonian’s development of an “Innovation Pavilion” that will showcase educational programs and exhibitions about American innovation. The pavilion will be housed at the Arts and Industries (A&I) Building in Washington, DC, after the historic building’s re-opening in 2014. It will serve as a forum for public discussions, symposiums, workshops, and recognition ceremonies related to American innovation, highlighting the vital role patents play in supporting that innovation. Also, the USPTO and the Smithsonian will partner in hosting an Innovation Expo on June 20-22, 2013, at the USPTO headquarters in Alexandria, Virginia.
USPTO will advance its mission of educating the public about the importance of intellectual property rights and protections with both the Innovation Expo and the Innovation Pavilion. For the latter, USPTO will collaborate with the Smithsonian on the programming, curation, exhibition design and fabrication.
“We look forward to working with the Smithsonian Institution to showcase America’s rich history of innovation, and provide a forum where inventors of all ages can interact and learn about the patent process while inspiring the next generation of American creativity,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO David Kappos.
Depiction from 1876 of a Salem Witch Trial circa 1692.
A good old fashioned witch trial can be jolly fun for most participants (save one). They are briefly cathartic, providing accusers a platform to be sanctimonious, while misleading a trusting public. Such efforts are best conducted behind closed doors as they lose credibility in the light of day. Thus, it was a relief to see the Patent and Trademark Office resist this approach in its January 10th Roundtable on Genetic Testing. This openness exposed claims that have driven the debate so far to a rare scrutiny. Perhaps the bonfires being prepared for the accused are premature.
The PTO is charged under section 27 of the America Invents Act with conducting a study on the influence of patents and exclusive licensing on the availability of confirmatory genetic testing – that is, the ability to obtain an independent confirmation of a genetic test by a second laboratory for patented tests only available from an exclusive provider. The sponsor, Congresswoman Debbie Wasserman-Schultz, is a breast cancer survivor who had to make serious medical decisions based on her own genetic test. Understandably, anyone in that situation wants to ensure they received the most accurate testing possible.
Serving the economic interests of America for more than 200 years, the United States Patent and Trademark Office (USPTO) is responsible for granting US intellectual property rights for patents and trademarks and providing inventors exclusive rights over their discoveries. It’s an effort that contributes to a strong global economy, encourages investment in innovation, and cultivates an entrepreneurial spirit in the 21st century.
The USPTO is headquartered in Alexandria, Virginia, and has over 10,230 employees, including engineers, scientists, attorneys, analysts, IT specialists, etc. all dedicated to accomplishing the USPTO’s mission, vision, strategic goals and guiding principles.
The USPTO is currently seeking applicants for a non-paid summer 2013 externship — the Patent Experience Externship Program (PEEP). This externship program is intended to give students an opportunity to experience what it’s like to work at PTO, as well as interact with experts in several disciplines, explore opportunities and develop or enhance personal and professional skills. The program is an 8-10 week summer program. There will be two entry on duty dates, one on May 28th and the other on June 10th, 2013. Those selected will be notified of their entry on duty date and made a formal offer to participate.
Non-practicing entities (NPEs) are once again thrust into the Section 337 spotlight by way of the “domestic industry” requirement. Back in 2007, InterDigital LLC filed a complaint at the United States International Trade Commission (“the Commission”), with the intention of blocking Nokia’s import of mobile devices into the United States. InterDigital alleged that Nokia’s mobile devices infringed its U.S. patents relating to power control and high-speed data transmission in 3G wireless technologies. The Commission sided with Nokia and found no infringement. However, Nokia’s favorable decision turned sour when it was reversed by the Court of Appeals for the Federal Circuit (“the Federal Circuit”). Nokia responded by petitioning the Federal Circuit for an en banc rehearing of the case. In its petition, Nokia focused specifically on the question of whether InterDigital’s patent licensing activities satisfied the “domestic industry” requirement. Recently the Federal Circuit, sitting en banc, denied Nokia’s petition for rehearing. The Federal Circuit decision is nevertheless interesting for its treatment of Section 337’s “domestic industry” requirement as it is applied to NPEs.
Under 19 U.S.C. §1337(a)(2), relief at the Commission is predicated on the existence or establishment of an industry in the United States “relating to the articles protected by the patent.” This is commonly known as the “domestic industry” requirement. In turn, section 1337(a)(3) provides that an industry is considered to exist if there is in the United States, “with respect to the articles protected by the patent,” significant investment in plant or equipment, significant employment of labor or capital, or “substantial investment in [the patent’s] exploitation, including engineering, research and development, or licensing” (emphasis added).
Since we last stopped by, there was a holiday break. But not surprisingly, 2013 began with a predictable rush of interesting news. So here are some of the most recent highlights, from court rulings and medical study findings to FDA doings and steps taken to developed new parameters for prescribing and clinical trials in various places.
For some, the year began on a disappointing note. That’s because the Obama administration again missed a deadline for releasing much-anticipated Sunshine guidelines for industry transparency. Late last year, the Centers for Medicare & Medicaid Services sent a final version to the White House for approval. But despite anticipation that guidelines would soon become public, the new year passed without a peep. Once again, all bets were off.
The guidelines, which became law as part of the Affordable Care Act, are supposed to set ways for gathering and publishing data that contain financial ties between physicians and drug and device makers. This would include ownership or investment interests held by a doctor or family member. Penalties for violations can range from $1,000 to $100,000. The CMS estimates it will cost industry and providers about $224 million in the first year and $163 million annually thereafter to comply.
Chief Justice John Roberts delivered the opinion of the Court.
Last week, theåç Supreme Court handed down its ruling in Nike v. Already, dba YUMS, 568 U.S. — (2013). While this case is set against the backdrop of trademark infringement, the big issue here is tied up in the way the Constitution grants federal courts the power to hear cases. For those who haven’t survived a Constitutional Law class, this can be a bit confusing. The Nike case was “mooted out”, which is a phrase lawyers like to throw around when we want to sound like we know something. Mootness is part of the larger doctrine of justiciability and requires a bit of an explanation before we can discuss what was really going on in Nike. Bear with me-things are going to get a bit technical.
Article III of the United States Constitution establishes the judicial branch of our government and creates the Supreme Court (lower federal courts are created by Congress). Section 2, Clause 1 has what’s known as the “Case or Controversy Clause”, which the Supreme Court has interpreted to tell us what limitations must be put on judicial review, e.g., what cases courts can or cannot decide. There are several different limitations on a court’s power to hear a case, but for our purposes in discussing Nike, the justiciability concepts of standing and mootness are what we need to focus on.
Last week the Obama Administration responded to a petition requesting the United States government secure funding and resources, and to begin construction of a Death Star by 2016. The petition explained by “focusing our defense resources into a space-superiority platform and weapon system such as a Death Star, the government can spur job creation…”
The petition was answered by Paul Shawcross, who is Chief of the Science and Space Branch at the White House Office of Management and Budget. The response titled This Isn’t the Petition Response You are Looking For, identified three primary reasons why the idea was rejected after consideration. The first reason given was rather practical: “The construction of the Death Star has been estimated to cost more than $850,000,000,000,000,000.” Thus, no Death Star while the government is attempting to work on reducing the deficit. Second, “[t]he Administration does not support blowing up planets,” which I suppose is good to know. Finally, “[w]hy would we spend countless taxpayer dollars on a Death Star with a fundamental flaw that can be exploited by a one-man starship?”
As fun as it may have been for Shawcross to write the response, what an utter waste of time and energy! Because someone was being “clever” and managed to convince 34,434 other people to sign the petition, the White House had to devote resources to responding to this obviously idiotic, nonsensical, ridiculous petition. Welcome to the age of “open government,” whatever that means.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more. The treatise is continuously updated to address relevant Federal Circuit and Supreme Court decision impacting patent drafting.
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Portable Computer
The Federal Trade Commission upheld an Administrative Law Judge’s decision that the marketers of POM Wonderful 100% Pomegranate Juice and POMx supplements deceptively advertised their products and did not have adequate support for claims that the products could treat, prevent, or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, and that they were clinically proven to work.
Serving the economic interests of America for more than 200 years, the United States Patent and Trademark Office (USPTO) is responsible for granting US intellectual property rights for patents and trademarks and providing inventors exclusive rights over their discoveries. It’s an effort that contributes to a strong global economy, encourages investment in innovation, and cultivates an entrepreneurial spirit in the 21st century.
Non-practicing entities (NPEs) are once again thrust into the Section 337 spotlight by way of the “domestic industry” requirement. Back in 2007, InterDigital LLC filed a complaint at the United States International Trade Commission (“the Commission”), with the intention of blocking Nokia’s import of mobile devices into the United States. InterDigital alleged that Nokia’s mobile devices infringed its U.S. patents relating to power control and high-speed data transmission in 3G wireless technologies. The Commission sided with Nokia and found no infringement. However, Nokia’s favorable decision turned sour when it was 
Last week the Obama Administration responded to a 
