Search Results for: hyatt

Patently-O Bits and Bytes

Bits and Bytes, Patent, Patent Prosecution
  • Bilski is coming (OCTOBER LIKELY)
    • Chief Judge Michel is quoted: “One of the most important cases pending with the [Federal Circuit] today is In re Bilski…. ‘It’s a very interesting case and I thought all the judges worked very hard on it,’ says [Chief Judge] Michel. He adds: ‘I think it will be a very significant decision. It probably will have broader scope than either In re Comiskey or In re Nuijten”
  • FEES: I’m looking for the PTO fee schedule (filing fees, exra claim fees, extension fees, appeal fees, etc.) for the past decade.
  • PTO Allowance Rate – depends on whether the PTO counts an RCE as an abandoned application. (which it should not…). The chart below is from a presentation by the PTO’s General Counsel James Toupin. Greg A posted a link to the whole file: www.bustpatents.com/toupin.pdf.

Tafas v. Dudas: PTO’s Proposed Limitations on Continuations and Claims are Invalid

Patent

In a twenty-six page opinion, District Court Judge Cacheris has granted GSK’s and Tafas’s Motions for Summary Judgment — finding the PTO’s proposed limitations to the number of continuation applications and claims per patent to be improper extensions of PTO authority:

“Because the USPTO’s rulemaking authority under 35 U.S.C. § 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as ‘otherwise not in accordance with law’ and ‘in excess of statutory jurisdiction [and] authority.’ 5 U.S.C. § 706(2).”

The documents:

==== Discussion ====

PTO Has No Substantive Rulemaking Authority:  35 U.S.C. § 2 provides various specific powers to the PTO. However, Section 2 does not provide the PTO with any “general substantive rulemaking power.” According to the Court, “Section 2(b)(2)’s authority is limited to rules governing the ‘conduct of proceedings’ before the Office, the USPTO does not have the authority to issue substantive rules, and it does not have the authority to make substantive declarations interpreting the Patent Act.”

Substantive Rulemaking is Broadly Defined: The district court defines a “substantive rule” as any rule that “affect[s] individual rights and obligations” (Quoting Chrysler Corp. v. Brown, 441 U.S. 281 (1979))

PTO’s Proposed Rules are Substantive: Applying the broad definition of substantive, the court then easily found that the proposed rules are “substantive rules that change existing law and alter the rights of applicants such as GSK and Tafas under the Patent Act.”

“The 2+1 Rule and the 5/25 Rule, which limit continuing applications, RCEs, and claims, and the ESD requirement, which shifts the examination burden onto applicants, constitute a drastic departure from the terms of the Patent Act as they are presently understood. By so departing, the Final Rules effect changes in GSK’s and Tafas’s existing rights and obligations.”

Limits on Continuations are Substantive: In particular, the court found that the continuation rule is runs contrary to the law because it imposes a “hard limit” that “deprives applicants of their valuable rights under 35 U.S.C. § 120 to an unlimited number of continuation and continuation-in-part applications as a matter of right.” Likewise, the limitations on RCE filings is a “clear departure from the plan language” of 35 U.S.C. § 132 (the PTO “shall … “at the request of the applicant …”).

Limits on Claims are Substantive: For over eighty years, the courts (CCPA) have blocked the PTO from placing any “mechanical limits” on the number of claims. Although the PTO may object to duplicate claims, the court found that the law prevents any strict limit on the number of claims.  The Court saw the ESD requirement substantive because it shifts the burden of examination from the PTO to the Applicant:

[T]he ESD requirement changes existing law and alters the rights of applicants under the current statutory scheme by shifting the examination burden away from the USPTO and onto applicants. . . . [T]he Federal Circuit has stated that applicants have “no duty to conduct a prior art search” and “no duty to disclose art of which an applicant could have been aware. . . . It is only after the USPTO makes a demonstration of unpatentability that the burden shifts to the applicant to rebut that showing. . . .  Thus, by requiring applicants like GSK and Tafas to perform prior art searches and by shifting the examination burden away from the USPTO, the ESD requirement manifestly changes existing law and alters applicants’ rights under Sections 102, 103, and 131.”

Holding: “Because the USPTO’s rulemaking authority under 35 U.S.C. § 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as “otherwise not in accordance with law” and “in excess of statutory jurisdiction [and] authority.” 5 U.S.C. § 706(2).

From the order:  “Defendants Jon W. Dudas and the United States Patent and Trademark Office and their agents, servants, and employees are permanently enjoined from implementing the Final Rules”

Notes:

  • The court made no attempt to carve-out portions of the rules that may be legal.
  • Although numerous other issues were raised by the parties and amici, the Court decided only on the substantive ground.
  • Weak points in the decision: TBD.

Patently-O TidBits

Patent
  • PPAC Patent Report: Major reform is necessary. [LINK] [About PPAC]
  • New Federal Rules of Civil Procedure: On December 1, the newly revised Federal Rules of Civil Procedure (FRCP) became effective. The rule changes are primarily stylistic rather than substantive. At times, however, it appears that the drafters traded off the goal of preserving the existing meaning in favor of clarity.  Litigators should take time to parse the changes.  [LINK]
  • EPO: Norway & Croatia will become EPO members on January 1, 2008. No retroactive designation is allowed. [LINK] [LINK]
  • Pro Bono: Patent Hawk reports on the recently dismissed case where an inventor sued his pro bono patent attorney for malpractice. [LINK]
  • Patent Reform: Professor Dinh (Georgetown) writes in the American Spectator that we need patent reform: “The reforms proposed by the Patent Reform Act of 2007 are precisely the type of congressional action needed. The Act will remove obstacles to growth and restore balance to the patent system. In particular, the Act will protect inventors’ property rights and encourage innovation by providing a meaningful administrative review process to clarify the scope and validity of patents, and the Act will clarify and modernize the damages rules, thereby eliminating the perverse incentives that foster litigation.” [LINK]
  • Patent Troll Tracker: Patent reform is not a ‘boon to Chinese pirates.” [LINK]

USPTO Fees: Targeted Higher Fees to Push for Compact

Patent, , , , , , ,

by Dennis Crouch

The United States Patent and Trademark Office (USPTO) recently proposed a new fee structure for fiscal year 2025, which includes significant increases in various patent fees. [Read the Notice of Proposed Rulemaking] While incremental fee adjustments are common, the proposed changes for FY2025 are particularly noteworthy due to their magnitude in certain targeted areas and potential impact on applicant behavior. Many filers will likely change their practices based on the new higher fees. The USPTO appears to be using these fee adjustments as a tool to shape patent prosecution strategies, encouraging more compact patent applications and smaller patent families.  However, the USPTO is also seeking ways to ensure that the agency remains financially solvent and able to perform its statutory duties in the face of inflation and the Unleashing American Innovators Act of 2022 which reduced patent fees for small and micro entity applicants. The USPTO’s proposed fee increases are largely unchanged from the plan announced last year.

One of the most striking changes in the proposed fee structure . . . (more…)

In re Xencor: USPTO’s Inaction Following Federal Circuit Remand

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by Dennis Crouch

On January 23, 2024, the Federal Circuit granted the USPTO’s request for a remand in the case of In re Xencor, Inc. The appeal focused on two important issues concerning written description requirements for means-plus-function (MPF) and Jepson claims in the context of antibody patents. The USPTO had indicated that it wanted to reconsider its approach to these issues and convene its newly established Appeals Review Panel (ARP) to clarify its position. (ARP is the new POP). As part of its justification for remand, the Federal Circuit noted its expectation “that proceedings will be conducted expeditiously.”

However, more than two months after the remand order, there has been no visible progress in the case. The USPTO has not docketed the case with the ARP, and no public announcement has been made regarding the composition of the panel that will review the case. Furthermore, the prosecution history of the application in question (USPTO Application Number 16/803,690) does not reflect any updates or changes since the remand.

This lack of action is particularly concerning given the significance of the issues at stake. The PTAB previously made two controversial rulings that were on appeal: (1) that under 35 U.S.C. 112(f) equivalents require explicit written description support and (2) that non-limiting Jepson claim preambles also require such support, even if they do not limit claim scope.

Meanwhile, the USPTO did recently issue examination guidance on examining means-plus-function claim limitations under 112(f).  The troubling aspect of the memo, however, is that it does not provide any guidance on the Xencor enablement issue.

Citations:
[1] https://patentlyo.com/patent/2023/12/motion-remand-xencor.html
[2] https://patentlyo.com/patent/2024/01/important-antibody-description.html
[3] https://cafc.uscourts.gov/01-23-2024-23-2048-in-re-xencor-inc-order-23-2048-order-1-23-2024_2257719/

The Quest for a Meaningful Threshold of Invention: Atlantic Works v. Brady (1883)

Patent, , , , ,

by Dennis Crouch

My recent discussion of Vanda v. Teva references the landmark Supreme Court case of Atlantic Works v. Brady, 107 U.S. 192 (1883).  I thought I would write a more complete discussion of this important historic patent case.

Atlantic Works has had a profound impact on the development of patent law, particularly in shaping the doctrine of obviousness, but more generally providing theoretical frameworks for attacking “bad patents.”  As discussed below, I believe the case also provides some early insight into the new AI inventorship dilemma.

The case addressed the validity of a patent granted to Edwin L. Brady for an improved dredge boat design.  The Supreme Court ultimately reversed the lower court’s decision upholding the patent and found instead that Brady’s claimed invention lacked novelty and did not constitute a patentable advance over the prior art.

(more…)

Federal Circuit Affirms Invalidity of Genus Claims to Stevia Production Method Lacking Written Description and Narrower Claims as Combining Natural Phenomena with an Abstract Idea

Patent

by Dennis Crouch

In PureCircle USA Inc. v. SweeGen, Inc., No. 22-1946 (Fed. Cir. Jan. 2, 2024) (non-precedential) [PureCircle Decision], the Federal Circuit affirmed a district court summary judgment siding against the patentee, PureCircle.  The court concluded that the stevia production method claims were all invalid, either for: (1) lack of written description for the genus claim or (2) lack of eligibility because the claims are directed to a natural phenomenon combined with an abstract idea.  Judge Dyk authored the opinion of the court that was joined by Judges Schall and Stark affirming the ruling of C.D.Cal Judge James Selna.

The written description portion of the opinion parallels the Supreme Court’s 2023 Amgen decision that focused on the sibling doctrine of enablement. Although non-precedential, the eligibility portion appears important because of the way it combines prohibited eligibility categories and rules that method claims requiring a particular purity level are themselves an abstract idea absent requirement of specific steps on how that purity level is achieved.

(more…)

A Question of First Impression: What Happens When the PTAB Fails to Meet the Statutory Deadline for Issuing a Final Written Decision?

Patent

By Chris Holman

Purdue Pharma L.P. v. Collegium Pharm., Inc., 2023 WL8043047 (Fed. Cir. Nov. 21, 2023)

Section 326(a)(11) of Title 35 (the Patent Act) provides that the PTO “shall prescribe regulations… requiring that the final determination in any post-grant review be issued not later than 1 year after [institution],” and that the time can be extended by up to six months for good cause or in the case of joinder (emphasis added).  On its face, the statute seems to establish a statutory deadline of 18 months from institution (one year plus the six-month extension) for the PTAB to issue its Final Written Decision in a post-grant review (“PGR”) proceeding.  In Purdue Pharma L.P. v. Collegium Pharm., Inc., the Federal Circuit answered a question that the court characterized as one of first impression, i.e., what recourse do the parties have if the PTAB fails to meet the statutory deadline? The Federal Circuit concluded that, because the statute does not specify any means for enforcing the PTAB’s compliance with the statutory deadline, the only recourse lies in a petition for a writ of mandamus.

The PTAB’s apparently unprecedented failure to issue its Final Written Decision within 18 months arose out of some unusual circumstances, including Purdue’s filing of a Notice of Bankruptcy Filing and Imposition of Automatic Stay and the Board’s resulting decision to stay the PGR, as well as some turnover on the panel that heard the case. In any event, after the PTAB issued its Final Written Decision finding Purdue’s claims to be unpatentable, Purdue appealed to the Federal Circuit, arguing that the Board lacked the authority to issue a Final Written Decision because it had failed to meet the 18 month deadline.

But the Federal Circuit sided with Collegium Pharma and the PTO, holding that the PTAB has authority to issue a Final Written Decision even after the deadline proscribed in the statute has passed.  The court cited Supreme Court precedent for the proposition that “if a statute does not specify a consequence for non-compliance with statutory timing provisions, the federal courts will not in the ordinary course impose their own coercive sanction.” Responding to Purdue’s argument that the use of “shall” and “requiring” in section 326(a)(11) deprives the Board of authority to issue a Final Written Decision after the deadline, the Federal Circuit noted that in Brock v. Pierce Cnty. the Supreme Court held the “requirement that the Secretary ‘shall’ take action within 120 days does not, standing alone, divest the Secretary of jurisdiction to act after that time.”

The court found it significant that other provisions of the AIA use quite different language to bar action after the passage of a deadline. Section 315(b), for example, contains explicit language denying agency power after a time deadline, saying “[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner … is served with a complaint alleging infringement of the patent.” (emphasis added).  See also section 321(c) (“A petition for a postgrant review may only be filed not later than the date that is 9 months after the date of the grant of the patent or of the issuance of a reissue patent” (emphasis added)). The Federal Circuit concluded that “[h]ad Congress meant to deprive the agency of power in section 326(a)(11), it knew how to do it, and, significantly, it did not use language in section 326(a)(11) similar to that used in other sections.”

The court found further support in the AIA’s legislative history, noting that “[i]f the Board could not issue a Final Written Decision, the parties would be forced to pursue the issue in district court litigation. This is the exact opposite of the purpose of the AIA, which is meant to create a more efficient alternative to district court litigation.”

The Federal Circuit goes on to state that Purdue’s appropriate remedy would have been a petition for writ of mandamus, which “is available immediately upon the deadline’s expiring, assuming that the other requirements for issuance of the writ are satisfied. There is no requirement to show unreasonable delay in the issuance of the decision—only that the deadline has passed.”

It remains to be seen whether the Federal Circuit’s decision will result in more Final Written Decisions being issued after the expiration of the 18 month statutory deadline, and whether mandamus will prove an effective remedy.

Post-Hoc Party: You Should Have Said That Before

Patent

by Dennis Crouch

Netflix, Inc. v. DivX, LLC, — F.4th — (Fed. Cir. 2023)

In recent years, a number of PTAB decisions have been vacated on appeal because the administrative court failed to address arguments raised by the various parties.  Seeing this potential avenue for appeal, many IPR-losers comb through their IPR filings in an attempt to identify potential untapped veins.

Netflix did just that in this case — arguing that the PTAB had failed to address several of its arguments. But the appellate panel refused to comply and instead held that the arguments Netflix had purportedly raised before the PTAB had, in actuality, not been sufficiently raised below.   Judge Chen authored the majority opinion joined by Judge Linn, Judge Dyk wrote in dissent.

DivX has developed a number of inventions related to video streaming.  The patents at issue here are designed to facilitate adaptive bitrate video streaming through the use of “top level index files” designed to be used by a playback device in choosing the appropriate stream to play that will both take advantage of the device capabilities and take into account network conditions. U.S. Patent Nos. 9,270,720 and 9,998,515.

In 2019, DivX sued Netflix for infringing the patents, and Netflix responded with a pair of IPR petitions arguing that the claims should be cancelled.  Although the PTAB granted the petition, it did ultimately sided with the patentee in holding that the claims had not been proven unpatentable.

On appeal, Netflix did not challenge any of the PTAB’s fact finding or legal conclusions, but instead argued that the PTAB had failed to address or misinterpreted two of its obviousness arguments.  Netflix cited cases like Donner Tech., LLC v. Pro Stage Gear, LLC, 979 F.3d 1353 (Fed. Cir. 2020) for the prospect that the Board must meaningfully consider all of petitioner’s arguments.

Reviewing the PTAB’s interpretation of petition arguments for abuse of discretion, the majority held Netflix forfeited three arguments raised on appeal by failing to clearly raise them before the PTAB. See In re Google Tech. Holdings, 980 F.3d 858, 863 (Fed. Cir. 2020) (“Any argument not raised to the Board is forfeited.”).

The dissent, concluded that the arguments had been properly raised, but the majority saw the appeal as “post-hoc attempts on appeal to include additional, new arguments not contained in the petition.”  On this point, the majority complied a long list of cases where IPR-losers had attempted to appeal arguments that had not been clearly proffered below.

  • Microsoft Corp. v. Biscotti, Inc., 878 F.3d 1052, 1074 (Fed. Cir. 2017) (“Microsoft did not present to the Board the full argument that it presents here on appeal . . . Microsoft’s brief on appeal is far more detailed and contains substantial new arguments regarding why it believes Kenoyer anticipates this limitation of claim 69.”)
  • Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1286 (Fed. Cir. 2017) (“We also are unpersuaded by Continental’s attempts to cure the petition’s deficiencies in its subsequent briefing to the Board and to us.”)
  • Yita LLC v. MacNeil IP LLC, 69 F.4th 1356, 1366–67 (Fed. Cir. 2023) (disagreeing with Yita that an argument was raised in petition and thus finding no abuse of discretion by the Board in “declining to consider Yita’s argument about modifying the teaching of Rabbe . . . because it was presented too late—in a footnote in Yita’s reply brief”);
  • Henny Penny Corp. v. Frymaster LLC, 938 F.3d 1324, 1331 (Fed. Cir. 2019) (“[T]he Board did not abuse its discretion by holding HPC to the obviousness theory in its petition”);
  • Ariosa Diagnostics v. Verinata Health, Inc., 805 F.3d 1359, 1367 (Fed. Cir. 2015) (“We see no error in the Board’s rejection of Ariosa’s reliance, in its Reply submissions, on previously unidentified portions of a prior-art reference to make a meaningfully distinct contention.”).

Without delving deeply into the technology, Netflix had argued that a “filtering” limitation had been shown based upon the prior art Pyle’s selection of an existing manifest as well as Pyle’s creation of a new manifest.  But, the Board focused only on the selection portion.  Second, for a “retrieving” limitation, Netflix argued that Lewis alone disclosed these limitations, rather than needing to be modified.  But, the Board focused on whether it would have been obvious to modify Lewis to include that limitation.   What you can see here is that both of these arguments are quite narrow slivers from the overall obviousness arguments.

In looking at the petition and the Board’s initiation decision, both the petitioner and the patentee have reasonable positions as to whether the issue was properly raised.  In the end then, I expect that the deferential abuse of discretion standard of review for this issue carried the day.  Affirmed.

= = =

This is an aside, but one part of the briefing that was interesting to me is that more than 1/3 of the cases cited by the appellant in its opening brief were non-precedential federal circuit cases.  Prior to 2007 the Federal Circuit had a rule forbidding the citation of its unpublished opinions. Now, Fed. R. App Proc. 32.1 expressly permits those citations.

Federal Circuit: Construing the Term “A” once Again

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by Dennis Crouch

In Salazar v. AT&T Mobility LLC, the Federal Circuit affirmed the district court’s judgment of noninfringement. Once again, the Federal Circuit was called upon to interpret the claim term “a,” this time to determine if Salazar’s claim requiring “a microprocessor” was limited to a single microprocessor. While “a ___” is usually interpreted to include “one or more ___,” the court upheld Judge Gilstrap’s narrower singular construction in this case, finding it limited by later references to “said microprocessor.”

Salazar’s US Patent No. 5,802,467 claims a communication system for interacting with multiple external devices. The system comprises “a microprocessor” that generates reprogrammable communication protocols, a memory device for efficient storage of command code sets retrieved by “said microprocessor,” a user interface for user selections and menu displays rendered by “said microprocessor,” and an infrared frequency transceiver coupled to “said microprocessor” enabling bidirectional communication with external devices.

AT&T systems may have the capability to achieve all these steps, but the defendant argued that each step utilized different processors or multiple processors. Thus, as the District Court explained, the dispute centered on “whether the claims require one microprocessor that is capable of performing the recited ‘generating,’ ‘creating,’ ‘retrieving,’ and ‘generating’ functions.” According to the district court construction, the patentee needed to identify a single processor that performed “all the functional (and relational) limitations recited for ‘said microprocessor.'” As a result, the court found no infringement. The Federal Circuit affirmed this decision on appeal.

While the indefinite article “a” is generally interpreted broadly as not limited to one item, this presumption can shift when necessitated by the patent documents. In this case, the patentee repeatedly used “said microprocessor” to refer back to the already claimed term in a way that “reinvokes [the] non-singular meaning” of the word “a.” Slip Op. (quoting Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512 F.3d 1338 (Fed. Cir. 2008). According to the court, an alternative interpretation would ignore the meaning of “said.”

The key takeaway is that each time the claim uses “said microprocessor,” it refers back to the originally identified microprocessor. This interpretation prevented the argument that the claim covers the use of multiple microprocessors working together to achieve the described functionality.  Non-infringement affirmed.

= = = =

The jury sided with the patentee on anticipation. AT&T also appealed this issue. However, the Federal Circuit declined to hear the question, holding that AT&T failed to move for a Rule 50(a) JMOL before the case was submitted to the jury, thus waiving its right to appeal the sufficiency of the evidence on that issue.

Request for Comments on USPTO Initiatives to Ensure the Robustness and Reliability of Patent Rights

Patent

Feb 1, 2023, is the new deadline for providing comments to the USPTO on this RFC.

Topics: The USPTO invites written responses to the following questions and requests. Commenters are welcome to respond to any or all of the questions.

1. Identify any specific sources of prior art not currently available through the Patents End-to-End Search system that you believe examiners should be searching. How should the USPTO facilitate an applicant’s submission of prior art that is not accessible in the Patents End-to-End Search system ( e.g., “on sale” or prior public use)?

2. How, if at all, should the USPTO change claim support and/or continuation practice to achieve the aims of fostering innovation, competition, and access to information through robust and reliable patents? Specifically, should the USPTO: (more…)

Bolstering the Robustness and Reliability of Patents

Patent

USPTO Director Kathi Vidal is beginning to move forward with various initiatives that I’ll discuss in upcoming posts. Most recently though, the Office issued a Request for Comments seeking public input on mechanisms for “bolstering the robustness and reliability of patents.” Comments due January 3, 2023 via Federal eRulemaking Portal at regulations.gov (docket: PTO-P-2022-0025).  The document includes a commitment from the USPTO to increase patent examiner time, training and resources.

One question asked in the RFC is whether the USPTO should require patent applicants to link claim limitations to particular disclosures in the originally filed specification.  That linkage would facilitate examiner understanding of the invention as well as considerations such as enablement and written description.  In some cases cases, the office could automatically demand more detailed analysis — such as for genus; markush; or functional claim limitations.

Lots more in there: read it here. 

 

The Scope of Comparison Prior Art in Design Patent Infringement

Patent

by Dennis Crouch

The pending appeal in Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc., 2021-2299 (Fed. Cir. 2022) raises a number of important design patent law questions, including an issue of first-impression of the scope of “comparison prior art” available for the ordinary observer infringement analysis under Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc) and its key predecessor Smith v. Whitman Saddle Co, 148 U.S. 674 (1893).  Since Egyptian Goddess, the Federal Circuit has placed renewed importance on the claimed “article of manufacture,” but not in the comparison portion of infringement analysis.

In 2021, the Federal Circuit issued the important, albeit short-winded, design patent decision In re SurgiSil, L.L.P., 14 F.4th 1380 (Fed. Cir. 2021).  In SurgiSil, the court held that the particular article-of-manufacture recited by the claims should not be ignored, even for anticipation purposes. SurgiSil’s cosmetic lip implant has a remarkably similar shape to lots of other two-pointed cylinders.  As an example, the image above shows the SurgiSil lip implant (bottom) compared against a prior art blending stump (top) sold by Blick.

The PTAB found SurgiSil’s claim anticipated, but the Federal Circuit reversed–holding that a blending stump does not anticipate a lip implant.

Utility patent attorneys are familiar with the Schreiber decision that allows for non-analogous art to be used for anticipation rejections.  In re Schreiber, 128 F.3d 1473 (Fed. Cir. 1997)(“whether a reference is analogous art is irrelevant to whether that reference anticipates”). In some ways, Schreiber could be seen as intension with SurgiSil.  In reality though the two decisions fit well together and SurgiSil did not make a special design patent rule or reject Schreiber.  Rather, Surgisil simply interpreted the claim at issue as requiring a lip implant and then found that a non-lip-implant didn’t satisfy that claim limitation.    I will note that SurgiSil was a patent applicant’s appeal from the USPTO.  The case was remanded back to the USPTO 10 months ago, and not patent has issued yet. I expect that the examiner has now rejected the claim on obviousness grounds.

SurgiSil, coupled with the court’s prior decision in Curver Luxembourg, SARL v. Home Expressions Inc., 938 F.3d 1334 (Fed. Cir. 2019), place new weight on the  claimed ‘article of manufacture.’ On open question is how this focus should play out in the infringement analysis under Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc).

A design patent’s scope is typically determined by its recited article of manufacture and single embodiment shown in the drawings.  An accused design does not have to exactly match the drawings.  Rather, what we do is ask whether an “ordinary observer” would be deceived that the accused design is the patented design.  Egyptian Goddess. Before making the comparison, the ordinary observer is supposed to become familiar with the prior art (if the issue is raised).  The prior art is used to help measure the scope of the claims.  If there is no prior art remotely similar, then the patented design is going to be given a broader scope by the ordinary observer; on the other hand, when the prior art is quite similar to the patented design the patent scope will be narrow.  Of note, comparison prior art is only used at the accused infringer’s behest, and so the issue will strategically arise only when the defendant has evidence of very similar prior art.

The open question: What prior art should we look to when making a comparison? That question is before the court in Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc., 2021-2299 (Fed. Cir. 2022) (pending before the Federal Circuit).  In the case, the accused infringer (Seirus) had some spot-on comparison prior art, the only problem is that the references were sourced from disparate articles of manufacture far afield from Columbia’s claimed “heat reflective material.”  The case is potentially big because of the profit disgorgement remedy available in design patent cases. 35 U.S.C. 289 (“[the infringer] shall be liable to the [patent] owner to the extent of [the infringer’s] total profit”).  And, we might expect a strong potential that a decision here on the infringement side will reflect-back to also apply in any obviousness analysis.

I have written before about the Columbia v. Seirus lawsuit that involves the reflective (but water permeable) inner layer that both use to line their cold weather gear.  Columbia’s Design Patent No. D657,093 claims the “ornamental design of a heat reflective material” as shown the drawings. As you can see from Figures 1 and 2 below, the design shows a wave-like design, which the inventor (Zach Snyder) says was inspired from his time living in Arizona and seeing heat ripple mirages rising from the ground.

The Seirus product is similar and uses a wave/ripple design.  Early Seirus products lacked branding, but Seirus later added its brand name to the designs in order to promote its brand and avoid confusion. If you have seen these designs on apparel liners, it is coming from Seirus brand.  Although Columbia has the patent, the company initially launched its product using a pixilated design (covered by a separate design patent) and later decided to not adopt the wave in order to avoid confusion with Seirus.

At trial, the jury was shown images of the patent as well as the accused product in order for it to conduct the ordinary observer test.  The Egyptian Goddess infringement analysis also requires consideration of the prior art.  Seirus presented some visually close references, including a 1913 utility patent covering the inner tire liner. (Fig 5 below from US1,515,792). The court limited the scope of comparison prior art to only fabrics for the Egyptian Goddess comparison. That tire patent was allowed because the inner layer was in a fabric form.

At trial, the jury sided with the defendant Seirus and found the patent not infringed.

Now on appeal, the patentee argues that infringement analysis prior art (“comparison prior art”) should be limited by the patent’s stated article of manufacture.  If the Columbia court had limited comparison prior art to only those showing “heat reflective material,” it would have all been excluded.  But, the district court allowed-in the prior art from unrelated arts, and then went further by precluding Columbia from asking the jury to reject the unrelated comparison prior art.  The basic idea for limiting comparison prior art stems from the same notions expressed by the Federal Circuit in SurgiSil and Curver Luxembourg: design patents do not cover bare designs but rather designs “for an article of manufacture.” 35 U.S.C. 171.  And, that “article of manufacture” portion  of the law should remain at the forefront of all design patent doctrines.   In Egyptian Goddess, the patent covered the “ornamental design for a nail buffer” and all the comparison prior art references were also nail buffers.  543 F.3d 665 (Fed. Cir. 2008).  Likewise, in Whitman Saddle, the design patent at issue was directed to a “design for a riding saddle,” and the prior art used in comparison was also a riding saddle. 148 U.S. 674 (1893).  But, the district court in Columbia refused to limit comparison prior art to only the same article of manufacture.  The district court concluded that such a ruling would improperly import too much functional into the design patent right — design patents cover form, not functionality.

In my view, Columbia’s proposal of a strict article-of-manufacture limitation is too limiting because it does not reflect the perspective of either a designer or an ordinary observer and because it offers the potential opportunity for undue gamesmanship in the writing of the claims. As an alternative rule of law, the patentee suggests that the scope of comparison prior art be limited to articles that are either the same article of manufacture or “articles sufficiently similar that a person of ordinary skill would look to such articles for their designs”  This test comes from Hupp v. Siroflex of Am., Inc., 122 F.3d 1456 (Fed. Cir. 1997) and was used to define the scope of prior art for an obviousness test rather than comparison prior art for the infringement analysis.  But, it seems to roughly make sense that the same scope of prior art should be considered both for obviousness and for infringement analysis — although obviousness is from the perspective of a skilled designer and infringement is looks to the ordinary observer (i.e., consumer).

I would argue that even Columbia’s broader alternative approach is too narrow.  In Columbia’s asserted patent, the images (below) show the use of the material as an inner liner for various articles of clothing as well as an outer liner for a sleeping bag.  It would make sense to me that an ordinary observer might be deceived by other apparel liners using the same wave, even if not “heat reflective;” and thus that a jury should be permitted to consider those products as comparison prior art in the Egyptian Goddess infringement analysis.  Unfortunately for Columbia, my broader notion of comparison prior art makes their case difficult since at least one of the comparison references shown to the jury was the wave pattern used as the outer liner of a rain jacket, US5626949, and all of the references are some form of fabric.  Further, in some ways Columbia opened the door to a very broad scope of comparison prior art by including Figure 1 (shown above) claiming the material as a pattern apart from any particular application (such as those shown in other figures). Liner Patent

There are two primary procedural mechanisms to limit the scope of comparison prior art. (1) exclude prior art from consideration as irrelevant; (2) allow the jury to consider the evidence, but allow the parties to also introduce evidence regarding the extent that the prior art might influence the ordinary observer or skilled artisan.  These are all issues that folks have repeatedly worked through (and continue to argue about) with regard to validity and obviousness in utility patents, but they remain undecided in the design patent infringement context post Egyptian Goddess.  The appellate brief asks three particular questions on point:

  1. What is the relevant scope of “comparison prior art” that is to be considered in a design patent infringement analysis?
  2. Is it error to instruct the jury that all prior patents are comparison prior art to a design patent, and to fail to instruct the jury to limit the scope of comparison prior art to those related to the claimed article of manufacture?
  3. Was it an error to prohibit Columbia from distinguishing comparison prior art on grounds that it failed to disclose a the claimed article of manufacture?

Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc. (Fed. Cir. 2022) (Appellant’s opening brief).

Now lets talk about the Logo. The figure above might be the key exhibit of the whole case.  The figure shows the Seirus design with an overlay from Figure 2 of the Columbia patent.  As you can see, the waves fit up almost perfectly (after a bit of resizing). A detailed analysis can find other differences in the waves, but the key visual difference is the repeated Seirus logo.

The importance of those logos was a key element of the prior appeal in the case. Columbia Sportswear N.A., Inc. v. Seirus Innovative Accessories, Inc., 942 F.3d 1119 (Fed. Cir. 2019) (Columbia I)  The leading precedent of L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1124 (Fed. Cir. 1993) indicates a copycat cannot escape design patent infringement by labelling products with a different trade name. (Images of the L.A. Gear patent and Accused infringer below).  In Columbia I, the Federal Circuit distinguished L.A. Gear by explaining that the precedent “does not prohibit the fact finder from considering an ornamental logo, its placement, and its appearance as one among other potential differences between a patented design and an accused one.”  Id.   Rather the logo should be considered for its “effect of the whole design.” Id. (Quoting Gorham).

In the second trial, Seirus spent some time focusing on the logos as important design elements and that may well have made the difference for the jury. In particular Seirus provided evidence that the logos were arranged and designed in a decorative way to be both ornamental and to catch attention.  In addition, the logos are used to break-up the wave so that folks don’t get hypnotized.  In other words, the logos were more than mere labeling.  Still, on appeal Columbia has asked the appellate court to address these issues once again in the form of objections to the jury instructions:

  • Did the court err by failing to instruct the jury – that in this case – confusion (or lack of confusion) as to the source of goods “is irrelevant to determining whether a patent is infringed?”  Columbia suggests that the problem comes about with the infringement instructions that focus on “deceiving” consumers. Columbia also implies that in some cases customer confusion as to source could be relevant evidence — such as in cases where the patentee also manufactures a product covered by the patent.  Here, however, Columbia does not practice the patented invention.
  • Did the court err by failing to instruct the jury that “Labelling a product with source identification or branding does not avoid infringement?” (Quoting L.A. Gear).  This final question appears to be rehashing the issue decided in Columbia I and so has presumably become unappealable law of the case.  For its part, Columbia argues that “[t]o the extent Columbia I is in conflict with Unette, Braun, or L.A. Gear, the prior cases control.”  On this point, it appears that Columbia may be preserving the issue for en banc or Supreme Court review.

Read the briefs:

Atextual Conditions for Patentability and Stare Decisis

Patent

by Dennis Crouch

The new petition in SawStop v. USPTO (Supreme Court 2022) focuses the question of whether COURTS have power to create non-statutory patentability doctrines.

Does the judiciary have the authority to require a patent applicant to meet a condition for patentability not required by the Patent Act?

SawStop Petition for Certiorari.  You might imagine this argument being raised as tied to any number of patent doctrines: atextual eligibility limitations; assignor estoppel; doctrine of equivalents, etc.  This particular case focuses on obviousness-type double patenting (OTDP).  Question 2 of the petition focuses the question further: “Is the judicially created doctrine of nonstatutory double patenting ultra vires?”

Section 103 of the Patent Act generally defines the doctrine of obviousness and instructs tribunals to look to the prior art and consider whether the claimed invention is sufficiently beyond the prior art. But, even if a claims are found patentable under Section 103, the USPTO still considers obviousness-type double patenting.  Even if there is no prior art, the USPTO still bars a patentee from obtaining a separate patent claiming an obvious variation of already-issued claims held by the patentee/inventor. Thus, although 102(b)(2) explains that certain prior-filed patents are not prior art when attributed to the applicant/inventor, OTDP steps in on the back-side to effectively assert those excused documents as prior art.  Pause here to note that one big difference between obviousness and OTDP is that applicants can skirt OTDP rejections by filing a terminal disclaimer that effectively links the two similar patents together along two axes: same term and same owners.

My middle school shop teacher was missing fingers courtesy of a table saw. Yours? Steve Gass has a PhD in physics and also a patent attorney.  He was doing some amateurs woodworking when he conceived of his SawStop technology.  The basic idea: if the spinning blade ever touching human skin, the electrical connection triggers an emergency brake that stops/retracts the blade within 5 milliseconds.  “Fast enough to turn a life changing event into a minor cut.”  Gass has over 100 patents and runs the innovative product company SafeSaw.

Gass’s U.S. Pat No. 9,927,796 was filed back in 2002 — claiming priority to a 2001 provisional application. That patent finally issued in 2018–only after SawSafe filed a civil action and received a court-judgment in its favor.  A 1974 patent had disclosed use of a safety circuit and a braking-means. However, the district court concluded  that the prior art was not enabling — i.e., a person of skilled in the art would not be able to construct (or even design) the claimed invention without undue experimentation. [2016 Decision].

Another 16 issued patents also claim priority back to this 2002 application.  One application is still pending, Application 15/935,432, that claims an obvious variant of what has already been patenting.   The USPTO rejected the ‘432 application based upon the judicially created non-statutory doctrine of obviousness-type double patenting.  SawStop did not want to file a terminal disclaimer on this valuable patent and instead appealed.  On appeal, the Federal Circuit affirmed without opinion in a R.36 Judgment.  Now, SawStop has petitioned the Supreme Court asking that the doctrine be eliminated.

= = =

Although the petition does not cite the Supreme Court’s recent abortion decision, it certainly picks-up upon some of the same themes:

  • A right to abortion “is nowhere mentioned in the Constitution.”  Similarly, obviousness type double patenting has no grounding in the Patent Act.
  • The fact that a precedent is old does not convert that precedent to a sacred text.

The Supreme Court in Bilski addressed this issue to some degree in the context of the non-statutory categorical bars of abstract ideas; laws of nature and natural phenomenon.

While these exceptions are not required by the statutory text, they are consistent with the notion that a patentable process must be “new and useful.” And, in any case, these exceptions have defined the reach of the statute as a matter of statutory stare decisis going back 150 years.

Bilski v. Kappos, 561 U.S. 593 (2010).  The Bilski court found a small textual hook, but also identified the doctrine as built upon longstanding precedent.

The longstanding nature of precedent is important in the patent context.  But unlike in the Constitutional abortion context, we have always had direct statutes guiding patent issuance and enforcement, beginning with the First Congress in 1790. In the area of obviousness, the doctrine was developed by courts and then implemented by statute in 1952.  In Graham though, the Supreme Court indicated that, with minor exceptions, the 1952 Act maintained all the old precedent.

Double Patenting in the Statute.  In its 2014 Abbvie decision, the Federal Circuit wrote that Obviousness Type Double Patenting is “grounded in the text of the Patent Act.”   In particular, the court honed-in on Section 101’s use of the singular article “a” in describing what is granted to an inventor: “a patent.”

While often described as a court-created doctrine, obviousness-type double patenting is grounded in the text of the Patent Act. . . . Section 101 reads: “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, … may obtain a patent therefor.” 35 U.S.C. § 101 (emphasis added). Thus, § 101 forbids an individual from obtaining more than one patent on the same invention, i.e., double patenting.

Abbvie Inc. v. Mathilda and Terence Kennedy Inst. of Rheumatology Tr., 764 F.3d 1366, 1372 (Fed. Cir. 2014).  But Judge Dyk’s conclusions in Abbvie are not well grounded themselves as there are several ways this provision could be interpreted. It also proves too much, since there are ways for a patentee to obtain multiple patents covering patentably indistinct inventions: (1) via terminal disclaimer; (2) via restriction.  If the patentee files a terminal disclaimer then the patent office will allow multiple patents to issue.  If the patentee files a divisional application (following a restriction) then the patent office will allow multiple patents to issue even without a terminal disclaimer.

 

The Manner in Which the Invention was Made

Patent

by Dennis Crouch

T0day’s oral arguments in Thaler v. Vidal was not too exciting. Court focused on the terms “individual” that was added to the Patent Act during the AIA and likely determinatively ends the case:

The term “inventor” means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.

35 U.S.C. s100(f).  I am close to 100% sure that the Federal Circuit will affirm that US law requires the patentee to identify a human inventor.

= = =

In the course of oral arguments, the government made two odd claims, neither of which were fully developed.

The first relates to the final sentence of Section 103 indicating that “patentability shall not be negated by the manner in which the invention was made.”  The Gov’t . made the following claim:

The Supreme Court in Graham against John Deere [more than] 50 years ago said that provision, that one sentence, applies only to the part of patentability that is referenced in Section 103.

Thaler Oral Arguments. In Graham, the Court did comment on the phrase and its  Congressionally intended purpose of overruling the flash-of-genius test.  However, I don’t see that the court bound the phrase to only be tied to Section 103 and obviousness.  The court wrote:

It also seems apparent that Congress intended by the last sentence of § 103 to abolish the test it believed this Court announced in the controversial phrase “flash of creative genius,” used in Cuno Engineering Corp. v. Automatic Devices Corp., 314 U. S. 84 (1941).

Graham v. John Deere Co., 383 U.S. 1 (1966).  Although the Graham court found a seemingly apparent Congressional intent, it did not actually interpret the provision as so limited and certainly did not indicate that it should be limited to application only in the context of obviousness analysis.

The second odd claim made by the gov’t in oral arguments is as follows: “One person’s innovation is another person’s step backwards.”  The basic underlying idea  here is apparently that Congress intended to intentionally exclude certain AI-generated inventions from patentability because they thought those innovations would have a negative societal impact.

The full oral arguments should be available shortly at this link: https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/.

Jumbo Patents

Patent

by Dennis Crouch

In 1982, the USPTO began charging a surcharge for patent applications that included >3 independent claims and >20 total claims.  The original surcharge was $10 per extra claim. The surcharge slowly rose up to $18 per extra claim by 2004. Then, in December of that year Congress pushed the fee up to $50 per claim–almost treble damages.  Since then, the rate has continued to rise–jumping to $62 and then $80 in 2013. It now sits at $100 per claim beyond the 20-claim buffet limit.

The chart below shows the percent of patents that I call “jumbo patents”–those with >50 claims (orange) and >100 claims (dashed-blue).  Both curves peak in 2005 with that year celebrating the issuance of the most jumbo patents in history.  At its peak, only about 3.5% of patents issued with more than 50 claims.  That number is now down below 0.5%.

I posit that the rapid decline in jumbo patents after 1995 was a direct result of the substantial rise in fee-surcharges December 2004.  The impact of that change began to be felt in patents issued in 2006, and is shown much more dramatically by 2008 as the pre-2005 applications worked their way out of the system.  An application with 50 claims (including 7 independent claims) went from an $850 surcharge to $2,300 surcharge.  Thus, the new surcharge was substantially above the $1,000 fee for simply filing another patent, and almost covered the issue fee of $1,400 as well.  In fact, the rise in jumbo patents was a key reason why the Dudas USPTO pushed for the large surcharge increase — Imagine seeing that upward trajectory in the pending applications and trying to figure out how to manage examination time.

= = =

The following are the most-jumbo patents from the past year:

  1. 11,116,808 – 394 claims – Nielsen Biosciences – “method for treating a common wart”
  2. 10,973,440 – 354 claims – method for “determining a gait velocity” – solo inventor.
  3. 11,080,336 – 302 claims – “a commonplace of information” – solo inventor
  4. 11,199,807 – 289 claims – Canon – Printer Cartridge
  5. 11,050,855 – 231 claims – JENAM TECH (a patent assertion entity) – timeout of a non-TCP setup
  6. 10,992,786 – 211 claims –  IOEngine (a patent assertion entity) – network communication
  7. 11,075,994 – 202 claims – FedEX – method of monitoring shipping containers for environmental anomalies
  8. 11,135,311 – 188 claims – OCULIS EHF – ophthalmic microsuspension
  9. 11,063,439 – 183 claims – Solarlytics – solar panel efficiency method
  10. 10,951,742 – 176 claims – JENAM TECH
  11. 11,202,827 – 170 claims – Seagen – method of treating cancer using the anti-CD40 antibody.

 

Central Tendency in US Patent Claim Counts

Patent

by Dennis Crouch

I’ve got three charts to show you below.  The first and second are histograms showing the number of claims per US utility patent – 2021 and 2006 issue dates respectively.  You’ll notice that the 2021 histogram has a much stronger central tendency focused on the buffet-limit of 20 claims.  The 2006 patents are significantly more spread, with many more patents under and over 20-claims mark.  That wider distribution is also shown in the time-series box-and-whiskers plot at the bottom (showing 25-50-72 percentiles in the box).  And by the standard deviations: the standard deviation for the 2021 claim counts was less than half of that for the 2006 claim counts. Basically, the 2021 patents are much less likely to either a very large number of claims or a very small number of claims.

My hypothesis is that these changes are driven by several factors, with the following two most impactful: (1) Since 2006, there has been a substantially increases in USPTO fees associated with having more than 20 claims.  That change has pushed folks away from having a large number of claims in a single patent; (2) Since 2006 we have also seen a further professionalization of patent prosecution, including a recognition that the applicant should include 20 claims if possible.  This change has shifted applicants up from the very low numbers.  Some may argue that restriction practice is also important. However, I don’t believe that restrictions have increased so dramatically as to cause this change.

But – why does someone need 20+ restatements of the invention?  Would it be conceivable to have a system that includes just one claim? What do you think?

The fee structure for excess claims (>20) was established in the form we know back in 1982.  The final chart below comes from 1980, and you see no 20-claim impact.

 

H. R. 5874: Restoring America’s Leadership in Innovation Act of 2021

Patent

Rep Massie (R-KY) along with three republican co-sponsors has introduced a new pro-patent-holder legislative proposal. [LINK]

Elements of the proposal:

  1. Restore a first-to-invent system and one-year grace period: “a person shall be entitled to a patent where the inventor is first to conceive of the invention and diligently reduces the invention to practice.”  This includes substantial reversion of Section 102 to its pre-AIA status.
  2. Abolish Inter Partes Review and PGR: “Chapters 31 and 32 of title 35, United States Code, are repealed.”
  3. Allow for civil actions to demand patent rights from the USPTO in any district court.
  4. End Fee-Diversion of USPTO Revenue.
  5. Abrogation of Alice, Mayo, Bilski, and Myriad “to ensure that life sciences discoveries, computer software, and similar inventions and discoveries are patentable, and that those patents are enforceable.”  This includes statutory revision of Section 101.
  6. Expressly establishing a patent as a private property right: “A patent right is a private property right secured to an inventor upon issuance of the patent that shall only be revoked by a court ruling in a judicial proceeding, unless the patent owner consents to an administrative or other procedure.”
  7. End Automatic publication of patent applications.
  8. Patent term tolled during any period of patent validity challenge.
  9. Patent infringement judgment presumptively results in an injunction.
  10. Best mode reestablished as an operative condition of patentability.

What are your thoughts on these proposals?

 

 

 

Venue Mandamus Petitions Continue to Flow to the Federal Circuit

Patent

by Dennis Crouch

We’ve been writing a lot about venue and mandamus petitions at the Federal Circuit.  The cases continue to flow to the court, and will continue so long as appellate panels continue to entertain them.

In October 2021, 10 new mandamus petitions were filed to the Federal Circuit in patent cases.

  • 22-100 In re: Overhead Door Corporation (E.D. Tex.) (proper but inconvenient forum);
  • 22-101 In re: Advanced Micro Devices, Inc. (W.D. Tex.) (proper but inconvenient forum);
  • 22-103 In re: Arista Networks, Inc. (W.D. Tex.) (proper but inconvenient forum);
  • 22-104 In re: Google LLC (W.D. Tex.)  (proper but inconvenient forum);
  • 22-105 In re: Amperex Technology Limited (D.N.J.) (proper but inconvenient forum);
  • 22-106 In re: Juniper Networks, Inc. (E.D. Tex.) (proper but inconvenient forum);
  • 22-107 In re: Medtronic, Inc. (W.D. Tex.) (arguing both improper venue and also inconvenient forum);
  • 22-108 In re: Volkswagen Group of America, Inc. (W.D. Tex.) (improper venue; are dealerships a place of business for VW);
  • 22-109 In re: Hyundai Motor America (W.D. Tex.) (improper venue; are dealerships a place of business for Hyundai); and
  • 22-110 In re: Netflix, Inc. (E.D. Tex.) (arguing both improper venue and also inconvenient forum).

I’m quite skeptical of parties use of Section 1404 in patent litigation. All of the parties listed above are major nationwide companies that have successfully litigated in courts across the country.  The motivation behind “convenient forum” litigation is all about judge shopping.  Patentees want certain judges; defendants want different judges.  But, that motivation does not provide any legal basis for transfer of venue.  So, instead parties argue that the file server location in California and the lack of non-stop flights makes it too hard to litigate in Texas.  Truthfully, it is hard for me to believe that the Federal Circuit is so engaged with rescuing these folks from burdensome file transfers.

Next UPSTO Director: Kathi Vidal

Patent

by Dennis Crouch

President Biden has nominated leading patent litigator Kathi Vidal as the next USPTO director.  Vidal is currently at Winston & Strawn, leading the company’s Silicon Valley office. She was previously with Fish & Richardson. [Announcement]

Vidal has all the qualifications.  Bachelor’s and Master’s degrees in electrical engineering (starting college at age 16); JD from Penn (EIC of the law review); Federal Circuit clerkship (Judge Schall); registered patent attorney; and litigated patent cases in courts across the country, including the PTAB.  She represented Chamberlain whose garage door opener patents were obliterated by the eligibility revolution of Bilski–Mayo-and-Alice.  At the same time, Vidal has represented many accused infringers.

Great pick.  I have known Vidal for years, and am confident that she will be an amazing leader of the agency.

The Senate will need to confirm this appointment, but I do not foresee any holdup for this candidate.