Improving Medical Device Patents Through Better Communication between USPTO and FDA

The April 16th, 2022, New York Times editorial entitled “Save America’s Patent System” recommends that the US Patent and Trademark Office (USPTO) be improved through collaboration with other agencies such as the Food and Drug Administration (FDA). The editorial identified that “[e]xisting regulations allow medical device makers to sidestep burdensome regulatory approvals if their newer products are deemed similar to ones that already exist.”

However, the editorial board of the New York Times recognized that the lack of collaboration between the FDA and the USPTO ... Read More ›

USPTO Pilot Program Evaluates Deferring 101 Rejection Responses to Improve Examination Efficiency

Earlier this year, based on a suggestion from the Congress of the United States, the United States Patent and Trademark Office (“USPTO”) implemented the Deferred Subject Matter Eligibility Pilot Program (“Pilot Program”). During the duration of the Pilot Program, the USPTO will be evaluating the effects of permitting applicants to defer responding to Subject Matter Eligibility Rejections, i.e., 35 U.S.C. §101 rejections. The Pilot Program began in February of this year and runs through the end of July, and will likely have a large impact in art units focused on Artificial ... Read More ›

A recent Federal Circuit decision in Larry G. Junker v. Medical Components, Inc., Martech Medical Products, Inc., 2021-1649, 2022 U.S. App. LEXIS 3647 (Fed. Cir. Feb. 10, 2022) serves as a reminder for businesses to carefully watch commercial activity with respect to the bar date for patent applications.

The subject of the appeal is Mr. Junker’s design patent claiming an ornamental design for a handle for an introducer sheath shown below with solid lines.

Mr. Junker accused the defendants of infringing the patented design. In response, the defendants countered in-part that the ... Read More ›

Intellectual Property Rights in Russia May Erode Due to Changes to Russian Trademark Rules

In the latest measure affecting global intellectual property protection, Russian Prime Minister Mikhail Mishustin announced a new law allowing “parallel imports.” This action will permit Russian importation of goods without the permission of the rightful trademark owners. The new law was enacted in response to sanctions placed on the Russian economy after recent events. It seeks to satisfy the demand for goods that arose after famous brands like Apple, Nike, McDonald's, Coca-Cola, and Pepsi temporarily suspended sales in the Russia. Practical application of the law could ... Read More ›

Taking Advantage of the Interface Between Trade Secrets and Patents

When you begin to study the law of trade secrets, you are advised that trade secret protection requires that the secret cannot be publicly disclosed, and this requirement is contrary to the patent protection system that requires the owner to publicly disclose the invention. This secrecy requirement appears unrealistic in a commercial environment. It is difficult to imagine how one can exploit the trade secret commercially without some disclosure to others engaged in the commercial activity associated with use of the trade secret. Those necessary disclosures could involve ... Read More ›

“Game-Changing” Cybersecurity Legislation Signed Into Law

As the threat of cyberattacks looms in the wake of the U.S.’s response to Russia’s invasion of Ukraine, President Biden signed into law a $1.5 trillion spending package on March 11, 2022 that funds the federal government through the fall. The law includes the strongest cybersecurity legislation in recent history and adopts the Strengthening American Cybersecurity Act of 2022. Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency (“CISA”), stated, “Put plainly, this legislation is a game changer.”

The law increases funding for CISA over 22 ... Read More ›

USPTO Getting Faster: How to Control the Pace of Patent Prosecution in a More Efficient Patent System

In recent years, the United States Patent and Trademark Office (USPTO) has taken strides to reduce, on average, the duration of time between the filing of a patent application and either abandonment or issuance (also referred to as “patent pendency”).

The USPTO has hired hundreds of new patent examiners to replenish manpower lost during the pandemic and indicates plans to increase examiner hires steadily through 2026. USPTO, Fiscal Year 2022: Congressional Justification, 37 (2021) Various changes in the assignment of applications to art units and pre-issuance processing ... Read More ›

Posted in: Patents

Artificial Intelligence and Patents

Once only a tool for scientists, artificial intelligence (AI) is becoming an everyday tool, from voice assistants and targeted advertising to autonomous driving. It is used in a wide variety of applications from product recommendations to medical diagnosis. AI is now entering the legal field in many areas, such as in litigation forecasting, damages calculation, document review and document drafting.

As AI has progressed over time, it is now replicating more and more things that only humans had done before. This is now creating new legal issues. For example, if an AI invents ... Read More ›

If a startup company wants to become an established, successful business, the company needs to carefully manage all of its resources, both tangible and intangible, in the same manner as an established, successful business – focusing meticulously on maximizing the return on every expenditure. If the company is founded on proprietary technology, carefully planning an intellectual property (IP) strategy as part of the business plan is critical. A well-managed and organized IP portfolio is attractive to potential investors at all stages of a business’s development and can be ... Read More ›

Going Public: Cartoon Characters and the Stories Entering the Public Domain

“This writing business. Pencils and what-not. Over-rated, if you ask me. Nothing in it. Silly stuff.” Eeyore, from A.A. Milne’s 1926 classic, Winnie-the-Pooh. Well, Eeyore, for the last 95 years millions of readers felt otherwise, at least when the writing business came to their beloved Pooh, Piglet, Rabbit, Kanga, Roo and Owl. This year, however, marks a new beginning for these characters and their friend Christopher Robin, for the U.S. copyright on the original Winnie-the-Pooh book expired on the last day of 2021. That includes not only the story but the wonderful ... Read More ›

Posted in: Copyrights

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