Tag Archives: patents

Can Patent Claims be Cancelled Based on Indefiniteness by the PTAB during an IPR?

For the Patent and Trail Appeal Board (“PTAB”), the PTAB allows a petition for inter parties review (“IPR”) to request cancellation of claims in a U.S. patent.  For an inter parties review of a patent, the PTAB institutes review and determines if claims of a patent are unpatentable.  Can the PTAB cancel claims based on indefiniteness during an IPR?  The answer is NO!

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The Open COVID Pledge

Intellectual property rights are – by definition – monopolistic. How, then, can researchers, charities and NGOs collaborate with business in the development of new technologies to control and eradicate COVID-19?

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A Recipe for Patent Protection: Are food products patentable?

In the past several years, the food and beverage space has seen an explosion of innovation—alternative meat products, plant-based dairy and protein alternatives, CBD- and collagen-infused everything, and functional foods and beverages and containing everything from pre/pro/post-biotics to nootropic and adaptogenic herbs, just to name a few. And many of these innovations have led to wildly successful products with household brand recognition (think: Impossible Foods and Vital Proteins).

While many of these brands may be protected by robust trademark portfolios, what role have patents played in defining their territory in the market? Patent protection can add significant value to an emerging brand by keeping competitors at bay, serving as an asset or collateral to secure financing, or as leverage to license across different industries or markets. Yet, the vast majority of conventional foods occupying the shelves of your local grocery store are likely not covered by a utility patent.  Which begs the question, are food products patentable?

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PANDEMICS AND EMERGENCY ACCESS TO PATENTED TECHNOLOGY IN CANADA

Canada’s COVID-19 Emergency Response Act came into force on March 25, 2020. Perhaps overlooked amongst emergency relief, health care and financial effects is Part 12 of the Act which makes changes to the Patent Act.

Why should the general public care about this? I’m glad you asked.

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Selling Your Products on US Online Marketplaces

Before you begin selling your products on a U.S. online marketplace like Amazon, Etsy or Rakuten, there are three intellectual property considerations to make: clearance, acquisition and enforcement. This article provides a summary of all three considerations and includes steps to take to help mitigate risk, decrease instances of infringers and position your product for success from a U.S. perspective.

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Can Appointment of Administrative Patent Judges be Unconstitutional?

For the Patent and Trial Appeal Board (“PTAB”), the Administrative Patent Judges (“APJs”) are appointed by the Secretary of Commerce in consultation with the Director of the United States Patent and Trademark Office.  For an inter parties review of a patent, three APJs conduct the instituted review and determine if claims of a patent are unpatentable.  Is the appointment of the APJs unconstitutional because it violates the Appointments Clause of the U.S. Constitution.?  The answer was YES! until the court remedied the APJs to be inferior officers.

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Can Design Patents Be Limiting in Enforcement?

Suppose that you have an invention disclosure for a design of an article that you want to protect?  When you review the invention disclosure, you notice that the design is ornamental, for example a pattern, on an article such as a chair.  You draft and file a design patent application on the pattern described as applied to a chair, but you do not include any drawings showing the pattern applied to the chair.  Subsequently, you obtain the design patent and later find out that a third party is making baskets including the pattern.  Can you enforce your design patent against the alleged infringer?  The answer is NO because your design patent is limited in scope to a chair.

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The District of Delaware Holds Patent Description for Bacon Product Indefinite

An indefinite patent description will pass muster when pigs fly.  In HIP, Inc. v. Hormel Foods Corporation et al., C.A. 18-615-CFC (D. Del. June 24, 2019), the United States District Court for the District of Delaware held that a patent failed to meet the requirement of 35 U.S.C. § 112 that a patent’s description must not be indefinite.  As a result, the Court held that U.S. Patent Number 9,510,610 (the “#610 patent”) was invalid.

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A New Mechanism For Protecting Fashion Companies in Russia

At the end of June a mechanism providing for temporary protection of industrial designs was introduced into the Russian legal system. In short it requires somebody who uses an industrial design during the period of its patenting to pay compensation to the future holder of the patent.  Previously, this type of protection was available only for inventions – although it is still not available for utility models, which are also patentable in Russia.

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District of Delaware Update

Last August, two new judges joined the United States District Court for the District of Delaware, Judge Colm F. Connolly and Judge Maryellen Noreika.  Judge Connolly filled the seat previously held by Judge Sue L. Robinson and Judge Noreika filled the seat previously held by Judge Gregory M. Sleet.  In recent months, both Judge Connolly and Judge Noreika have each adopted new procedures for dealing with case dispositive motions.

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