The America Invents Act (AIA) of 2011 authorized the creation of a set of administrative trials (AIA Trials), including Inter Partes Review (IPR) proceedings, Post Grant Review (PGR) proceedings and transitional Covered Business Method Review (CBM) proceedings. In each of these proceedings, anyone can file a petition to challenge an issued patent, and, after instituting the trial, the Patent Trial and Appeal Board (PTAB) will decide whether the challenged claims should be confirmed or cancelled.
By Robert Greene Sterne. Rob Sterne is a founding director of the IP firm Sterne Kessler Goldstein & Fox. I asked him to write about current ‘hot topics’ in patent reexamination.
The marked increase in the use of reexamination has naturally caused more frequent and closer evaluation and scrutiny of its unique procedures by involved parties and the courts. In FY2008, according to official USPTO (PTO) statistics, 168 inter partes reexams and 680 ex parte reexams were instituted. Compare this to FY2005, where 59 inter partes reexams and 524 ex parte reexams were instituted just three years ago. In short, it is becoming one of the faster developing areas of intellectual property law and, in the words of top PTO officials, it is a true “work in progress.”
Developed in conjunction with the Sedona Patent Litigation Conference and a team of my colleagues (and incorporating feedback of dozens of sources including judges, senior officials from the PTO, patent litigators, patent prosecutors, academics, bloggers, and interested members of the public), a comprehensive and neutral white paper overview of this subject matter provides an in-depth review of hot issues currently confronting parties that find themselves in the “parallel universe” of patent reexamination and concurrent litigation in the district courts and USITC. The hot topics addressed include (A) impact of PTO decisions on stock price, (B) reexamination pendency, (C) substantial new questions of patentability, (D) real party in interest, (E) duty of disclosure, (F) protective orders, (G) stay of litigation in view of reexamination, (H) appeals from the Central Reexamination Unit to the Board of Patent Appeals and Interferences, (I) the impact of reexamination on settlement, and (J) page and time limits in reexamination proceedings.
Here is a closer look at three of these topics:
Litigation Stays: Reality or Myth – The percentage of reexams that are in the ‘parallel universe’ of district court or USITC patent litigation continues to climb. For example, in FY2008, 62% of current inter partes reexams and 30% of ex parte reexams were in parallel litigation. Judges have wide latitude in granting or denying stays and litigants must carefully evaluate prior stay decisions from their judge and the court they are in to effectively prognosticate how the judge will rule. Especially with respect to inter partes reexams, the grant of a stay can effectively be “game over” for the patent owner.
Stock Fluctuation: Impact of PTO and Court Decisions on Stock Price – The practical impact of reexam on patent owners can be enormous. There are recent celebrated examples of stocks dropping 40% in hours after the release of a non-final office action rejecting claims in a suit, even though this development is not controlling on a court case because the reexam is not final. Third party requestors engage in litigation in the press by issuing inflammatory press releases that spin the truth. Patent owners need to be prepared for this media battle to protect their stock price. Moreover, the PTO mails decisions to parties in the reexam, putting the patent owner at a real disadvantage in dealing with the potential reexam media war.
Reexamination Pendency: So How Long Does it Take? – The stated goal of the PTO CRU is 24 months from the time the reexam is instituted to a Final CRU office action or action closing prosecution. By statute, the CRU must handle reexams with “special dispatch.” However, there are no definitive statistics on how long it takes for a reexam to be handled to completion by the CRU and then through appeal at the BPAI. Our current best estimate is that it takes approximately two to four years for the CRU to complete a reexam, typically a little faster for ex parte reexams, and two to four years for the BPAI to complete a reexam appeal. Thus, the reexam process could take four to eight years before it arrives at the US Court of Appeals for the Federal Circuit on appeal. This is a significant amount of time and requires additional strategy and tactical decisions by the parties.
For additional insight into patent reexamination, download recent podcasts – “2008 Patent Reexamination Trends” (Episode #1) here and “The Parallel Universe of Patent Reexamination and Litigation” (Episode #2) here.Download the latest version of the Sedona Conference related paper referenced above here, where you can read in-depth about the full list of hot topics identified above.
David Snively is Monsanto's General Counsel. He read Google's calls for patent reform and penned the following response. Monsanto's business model relies heavily on its ability to protect its innovations through intellectual property and contract in the US and Globally. Monsanto has also been the defendant in numerous patent battles.
Dr. Alan Greenpan's keynote speech on "Markets and the Judiciary" noted that "critical to economic growth is a rule of law, particularly protection of the rights of individuals and property". His remark that for IP law, the constancy of the protection afforded under the Constitution of the United States and our fully-functioning legal system is the basis for the U.S. economy's sustaining lead – even in difficult economic times with broken markets. Our patent system is the envy of the globe and while capable of thoughtful adjustment should not be hijacked by international pirates or corporations seeking to dilute legitimate protection that breeds investment and jobs. This is why Monsanto Company, as a global leader for innovation and technology in agriculture, is joined by trade unions and countless other groups who strive to assure Greenspan's voice is not lost in the din from hedge funds, offshore interests or others seeking short term gain by weakening our great patent system.
I respectfully disagree with the recent blog post by Google's Head of Patents and General Counsel, commenting on the perceived risks from damage awards in patent cases. Monsanto has faced billion dollar damage claims as a wrongly sued patent defendant and also knows the true benefits from avoiding the encouragement of willful infringement based on a smaller party's calculated gain in the face of limited risk of a meaningful award of damages if infringement is established. With full knowledge of all these issues and our substantial alignment with Google and the information technology industry over the legitimate need to curtail patent trolls and a myriad of other concerns – we encourage thoughtful reform. Last year Congress passed without public objection Public Law 110-403 the "Prioritizing Resources and Organization for Intellectual Property Act of 2008" which was designed to significantly enhance government law enforcement resources for combating certain kinds of intellectual property (IP) theft, e.g. criminal counterfeiting and infringement of computer software. The law helps protect investments in the research, development and marketing of certain kinds of innovative American products and services. The information technology industry was rightly bothered that its intellectual property rights were being trampled on by "pirates".
But, according to the financial sector and the information technology industry it seems that too many other people have too many patents that get in the way of too much "innovation" that is being marketed by an industry that doesn't own the rights to the "innovation". Some say that innovation can't stand still while somebody does a patent search to make sure that the "innovation" that is being marketed won't infringe any of those too many patents. So the complaint is "we are getting sued too much by these innovators who are stifling our innovation". Unlike the solution for rampant copyright infringement the perverse solution for rampant patent infringement is to propose "reforms" that would both reduce incentive to invest in research, development and marketing of innovative American products and services and provided impediments for improving patent quality. Dr. Greenspan's Georgetown keynote aptly recalled the copyright situation when he quoted Stephen Breyer from the Harvard Law Review decades prior to becoming a Justice "the case for copyright…rests not upon the proven need, but rather upon the uncertainty as to what would happen if protection were removed. One may suspect the risk of harm is small, but the world without copyright is nonetheless [in the words of Hamlet] 'undiscover'd country' which 'puzzles the will,/And makes us rather bear those ills we have/Than fly to others that we know not of.'
The problems posed by the patent reform bill are many:
It would change the calculation of damages that an infringer (pirate) would pay as compensation for trampling on patent rights, encouraging only more callous disregard of patent rights and piracy.
It would change the venue provisions in a way that would impose a substantial burden and inconvenience on patent owners by limiting access to the judicial system, encouraging only more callous disregard of patent rights and piracy.
"Technical" changes would weaken protection and encourage piracy via removing the estoppels provisions and expanding the prior art basis for engaging in inter partes re-examination, in effect providing a system of post grant review that will serve only to harass patent owners by effectively taking patents out or service for the duration of unlimited re-examinations, encouraging only more callous disregard of patent rights and piracy.
Transparency is critical to society today yet the patent reform bill would not require publication of all patent applications at 18 months reducing the public knowledge of prior art making it harder to avoid investment in patent-free technology and reducing the likelihood that quality patents will issue.
Thoughtful patent reform is needed. There are things to support in the House version of the patent reform bill. For example, the House bill while strangely modifying the damages calculation would authorize a study to see if such a modification is needed. Such studies are available and do not support the anecdotes that say damage awards are out of control.
Patent Reform that discourages investment in research and development and the job growth and economic stimulus that is spawned by thousands of small companies as well as large companies that rely on a robust and strong patent system is bad for America. Monsanto invests over $2M every day in research and is committed publicly to helping double food yield in corn, soy and cotton by 2030 while using 1/3 fewer natural resources and improving the lives of farmers globally. Accomplishing this task of sustainable agriculture requires a patent system and rule of law that Dr. Greenspan says has always been found in the Constitution of the United States.
First to File: Moving to a first-to-file system that credits invention based on the filing date of the patent application rather than on the date of actual invention. The provision eliminates the one-year grace period for most cases. Thus, any independent third-party publication prior to filing is considered prior art regardless of the date of invention. Likewise, secret prior art (102(e)) cannot be ‘sworn behind’ based on prior invention. This provision obviously hurts folks who delay in filing patent applications.
Damages: Must look to the invention’s “specific contribution over the prior art” to determine damages. There is an interesting provision that a reasonable royalty may be calculated as the price of licensing a “similar noninfringing substitute in the relative market.” In some cases, this could push damages to zero if the noninfringing substitute is in the public domain. The provision also codifies that treble damages are limited to instances where a judge finds that an adjudged infringer recklessly continued to infringe after receiving particularly specified written notice sufficient to create declaratory judgment jurisdiction and without relying on reasonable advice of counsel.
Expanded Reexamination Proceedings: Reexaminations may be requested based on published prior art, or evidence of prior public use or sale in the US. Inter partes reexaminations would begin to look more like court cases and would be heard by administrative patent judges. The Bill would clarify that parties would be estopped from filing inter partes reexamination requests after a district court judgment.
Additional Post Grant Review: Within 12 months of issuance, a third party can file a cancellation petition based on any ground of invalidity (rather than simply prior art). The post grant reviews would also be conducted by the administrative patent judges.
Pre-Issuance Submissions: Third parties can submit prior art during examination of the patent as well as a statement regarding the relevance of the art. The art should be submitted the latter of (1) six months after publication or (2) before the first office action on the merits.
Patent Litigation Venue: “A party shall not manufacture venue by assignment, incorporation, or otherwise to invoke the venue of a specific district court.” Venue is only proper were (a) defendant is incorporated; (b) defendant has its principle place of business; (c) where the defendant is permanently located and has committed substantial acts of infringement; or (d) where the plaintiff resides if the plaintiff is a nonprofit or individual inventor. The court should transfer venue to avoid evidentiary burdens when transfer can be accomplished without causing undue hardship to the plaintiff.”
Interlocutory Appeals: The Federal Circuit will have jurisdiction over interlocutory appeals of claim construction when approved by the lower court.
Administrative Patent Judges: The BPAI would become the Patent Trial and Appeal Board (PTAB). Interferences would be gone, however they would be replaced by derivation proceedings as well as reexamination and post-grant trials.
PTO Powers: The PTO has power to set its fees, including reducing fees.
Oath: Easing the rules to more easily allow rights-holders to file patent applications on behalf of the inventor.
Federal Circuit Judges: Making legal it for a Federal Circuit judge to reside more than 50 miles from DC.
As you can see, this is very much the type of reform that companies like Google would like to see. Google is regularly faced with charges of patent infringement and rarely sues for infringement. Some of these changes will benefit the system as a whole, but it is clear that this is not “balanced” reform. The damages provision will almost certainly reduce patent awards. And, perhaps equally important, the damages provision provides adjudged infringers a real cause to appeal jury awards if they did not directly follow the expert testimony.
I believe that the expanded use of reexaminations and post grant review and prior art submissions will be beneficial, and I have faith that the administrative patent judges will be able to handle their newfound responsibilities. That said, these provisions provide challengers with new ways to attack patent rights.
The plaintiff bar in the Eastern District of Texas is quite good, and defendants are doing what they can to escape from their grasp. The venue provision moves in that direction and would thus weaken the value of patents.
The trick with the first to file system is to realize that it is not about some mythical race to invent between competitors. Rather, it is about keying the priority on the date of filing the application rather than the date of invention or even one year prior to filing. This provision weakens patent rights because more materials will be considered prior art. It is possible to switch to a first-to-file system without eliminating the grace period so dramatically – this legislation does not, however meet that standard.
The Bill is sponsored by both Senators Leahy (D-VT) and Hatch (R-UT). Representative Conyers (D-Mich) introduced parallel legislation in the House, the legislation is largely similar, but does contain some differences. (I have not reviewed the House version in detail). Some opposition has already formed. Reps Manzullo (R-IL) an Michaud (D-ME) issued a joint press release titled “New patent bill encourages IP theft, destroys American jobs.” Their focus was on the damages provision.
There are some changes from the 2008 legislation.
The Bill does not require that all applications be published at 18 months.
Applicants would not be required to search prior art.
The 2009 Bill allows public use or sale in the US to be reasons for challenging patents.
CHECK 21 provisions are gone.
Fee Diversion is allowed in the 2009 Bill. (Oddly, Leahy explained that PTO Examiners perfer a system of fee diversion)
The 2009 Bill does not address inequitable conduct.
The Electronic Frontier Foundation (EFF) and Public Patent Foundation (PubPat) started the ball rolling with public interest challenges to patents via reexamination. Now the Center for Patent Innovations at NYLS have set their sights on post grant reviews. By leveraging their peer-to-patent system, the group hopes to help discover prior art that will invalidate issued claims. "Our citizen-experts have already found a number of items of prior art relevant to patents being asserted againt Microsoft, Google, and Facebook." (Post-Issue) The project is looking for law students to help. Not relying on altruism — Article One Partners has offered $50,000 for helping invalidate several Rambus patents. "If one or more references show a patent to be invalid, the first respondent who found the research earns the reward." (Article One) If you do find the Rambus prior art, please post a note here first so that we can all sell short.
* Note — I am an Advisory Board Member of the Center for Patent Innovations (although I did not know about this recent development until it had already been released).
This post was written by Professor Josh Wright. Wright is a professor at George Mason University Law School, but is visiting this semester at the University of Texas Law School in Austin. This post was originally published on the blog Truth on the Market.
Asnoted, the FTC has exercised its right under 15 USC 56(a)(3) to petition for a writ of certiorari to review the judgment of the D.C. Circuit in itsFTC v. Rambus. The FTC press release ishere. The petition ishere. The questions presented, as framed by the Commission are:
1. Whether deceptive conduct that significantly contributes to a defendant’s acquisition of monopoly power violates Section 2 of the Sherman Act.
2. Whether deceptive conduct that distorts the competitive process in a market, with the effect of avoiding the imposition of pricing constraints that would otherwise exist because of that process, is anticompetitive under Section 2 of the Sherman Act.
I do not believe the FTC has presented a convincing case for granting cert. Further, I don’t think the Supreme Court should grant cert inRambusfor reasons I’ll discuss in the post. For a more detailed exposition on some of the issues touched upon by this post, see my article with Bruce Kobayashi,Federalism, Substantive Preemption and Limits on Antitrust: An Application to Patent Holdup(forthcoming in theJournal of Competition Law and Economics).
The FTC lists what I count as five separate reasons to grant the petition:
(1) the D.C. Circuit applied an overly restrictive “but-for” causation standard that would require the Commission to show that Rambus’s conduct was anticompetitive (”the court of appeals erred in supposing that a Section 2 tribunal must identify a particular anticompetitive effect in order to find liability”);
(2) the court erred in its application ofNYNEX v. Discon, Inc.toRambusto conclude that the loss of an opportunity for the SSO (JEDEC) to obtain a RAND commitment from Rambus was not an anticompetitive effect under the antitrust laws;
(3) the Supreme Court should grant the petition to clarify “the governing standards of causation in Section 2 cases”;
(4) the D.C. Circuit decision is at odds with the Third Circuit’sBroadcomdecision which held that the loss of a RAND commitment due to deception is a proper basis for Section 2 liability; and
(5) the set “inconsistent set of rules” creates a conflict that “threatens confusion regarding the conduct of participants in industry-wide standard setting,” “will discourage participation in standard setting proceedings,” and “ultimately harm consumers.”
I want to examine some of those issues more closely, sketching out reasons why I do not believe that they warrant cert, and also highlight some issues the FTC did not but should have addressed in its brief to make the case more compelling. All of that below the fold. (more…)
There is a possibility that a passed Patent Reform statute would eliminate third-party-requested reexaminations (ex parte and inter partes) and yet fail to create any substantive third-party initiated post-grant procedure to replace the current options.
In addition, the proposed post-grant review procedure would block a non-threatened party from challenging the validity of a patent more than a year after its issuance. In a letter sent today to the Senate reformers, Dan Ravicher of PubPat asks that third-party reexamination be preserved. The non-profit groups such as PubPat and EFF have filed dozens of reexamination requests asking the PTO to invalidate “wrongfully issued” patents.
The Current Proposal Found in S.1145: The proposed system of post-grant review would have two windows for third-party filings:
First Window: Post-Grant oppositions filed by anyone within one year of issuance. Patents reviewed in the first window would not be given any presumption of validity.
Second Window: Opposition must be filed by party who has a likelihood of feeling “significant economic harm” based on the patent. A presumption of validity would apply in reviews within the second window.
The PTO would be required to complete its review work within 18 months. Post grant reviews would be conducted by a three-member panel of administrative judges rather than by examiners. Parties to the review may settle the case.
Before an overflow hearing room on an internationally available web broadcast, Chairman Howard Berman of the House Judiciary Subcommittee relevant to patents hosted a most informative and candid hearing yesterday afternoon joined by roughly ten of his committee colleagues, including Rep. Dan Issa, undoubtedly the most patent-interested member of Congress in some time (and like Abraham Lincoln an inventor-user of the patent system).
Going into the hearing, the Chairman clearly recognized the total impasse from the last Congress over "second window" post-grant review and that the current legislation as introduced is dead in the water. Yet, the Chairman and the bipartisan participation manifested a determination to find a solution, best marked by the announcement of the intention of the Chairman to hold a markup hearing in May – which, coincidentally or not – will take place in all likelihood shortly after the KSR decision is reached by the Supreme Court, and possibly before the Supreme Court Microsoft decision.
The Public Perception of Patent Importance: Just a decade ago, a patent hearing would have drawn gaping yawns from the public with a smattering of a few Washington regulars and largely vacant seats, both for the members and the audience. Yesterday, eighty minutes before the hearing the attendants’ line stretched down the corridor with numerous ill-dressed folks lounging on the floor or in chairs ("seat holders" selling their places in line to corporate VP’s and lobbyists); those coming later had to sit in an overflow video-feed room; ten or so members of the subcommittee participated in the hearings, some showing significant insight. The press table was overflowing; the beat reporter for Reuters was unable to get a seat at the table. A former Chairman of the Subcommittee staff sat in the very last row of the audience, along with other pooh bahs.
The point? Patent reform is perceived by Congress as important; the presence of myriad lobbyists manifests the money that is being spent by industry to deal with reform. Patent reform legislation will continue center stage, whether it passes or not.
Potential Abuses of the "Second Window": Perhaps the single most constructive development that arose from the hearing was the focus upon the abuse of the current reexamination system that foreshadows similar problems under the proposed post-grant review system: Serial reexaminations and post-litigation reexaminations even after a final court decision have been unreasonable and made it impossible for the winner of a trial costing the parties millions of dollars to enjoy a quiet patent title: Even after winning at trial, reexaminations can be filed that may take many years to resolve, some just rehashing old issues lost at trial.
A Single, Joined Proceeding to Avoid "Second Window"Abuses: A possible solution that was not considered at the hearing; the subcommittee should consider a "one window" solution where a first-filing of a post-grant proceeding would result in a publication in the Official Gazette that would give the public a six month window to join in a single, one time only post-grant proceeding. Additionally, the filing of any patent litigation should also be noticed in the Official Gazette to similarly set a six month period to commence a post-grant proceeding: Failure to file within this period would forever shut the door to a post-grant proceeding to the extent that the litigation goes to a final decision on the merits. And, of course, after a final decision on the merits in patent litigation, no further post-grant proceeding should be permitted.
Rep. Issa’s "One Window" and Judge-Opened Window Proposals: Rep. Issa suggested that perhaps "one window" might be provided for a post-grant proceeding, one shot at a patent, no matter when that window would be. Another thought that was put on the table was the idea that there could be a restricted "first window" but that a trial court could later order reopening a "second window" by referring a case to the post-grant authority. This would have the great benefit to the public of providing a better assurance that a patent-experienced tribunal would consider patent validity. (Presumably, for the roughly ten of the ninety-four District Courts that already provide excellent patent justice in a timely fashion, judges would decline to exercise this option but retain patent validity issues for their own tribunals. But, for the more than eighty other District Courts where a typical judge may be hearing his or her first or second patent case, the option of opening the "second window" may be very attractive.)
KSR, Microsoft, eBay– Looming Shadows from the Supreme Court : The Subcommittee is keenly aware of the presence of the Supreme Court in the patent arena. There was open discussion of the relief that Congress felt with the eBay decision that judicially resolved an issue this past Term that had been a bottleneck to progress on patent reform last year. Several references were made to the absence of any remedy to remove 35 USC § 271(f) and the hope that perhaps there would be a judicial solution in the Microsoft case that would remove yet another contentious issue; it was particularly for the reason of the pendency of the Microsoft case that the current legislation lacks any provision to deal with 35 USC § 271(f) repeal.
The 800 pound gorilla that was not mentioned is the KSR case that in all likelihood will be decided before the May markup session. (The earliest date now that a decision could be forthcoming is this coming Monday when the court sits merely to deliver opinions. The Court has concluded all of its arguments for the October 2006 Term and is now regularly meeting on Mondays to hand down decisions, which will continue until the end of June.) To the extent that the KSR decision may represent a major disruption in the case law of obviousness, this will be a certain signal to the leaders of the patent community that there must be a post-grant solution to cull out invalid patents. The continued grant of "gas pedal" patents cannot be avoided; but, what must be avoided is the continuation of an absence of mechanisms to remove such patents from the rolls.
Witness Selection to Highlight the "Second Window" Impasse: While apportionment of damages in the legislation was also an important theme, it was clearly secondary to the issue of the "second window" for a post-grant review. The Chairman candidly announced that his subcommittee was focusing upon the differences between the industries. (Clearly, without resolution of the "second window" debate, there will be no comprehensive patent reform bill that can be enacted in this or any near term bill.) With this theme in mind, the Chairman noted the appearance of five witnesses:
(1) Kevin Sharer, Chairman and CEO of Amgen, accompanied by Vice-President David W. Beier, III, former Subcommittee Staff Chair , pointed to the necessity for (a) a more reliable post-grant procedure; and (b) the necessity of freedom from a "second window" for biotechnology.
The Sharer testimony and the silent but visible presence of Beier stole the show, both in terms of persuasiveness as well as for the special deference given by the Subcommittee to the Sharer-Beier entourage. Amgen was seeded first at the hearing and, pursuant to a special announcement by the Chairman at the outset, was given a preferred early set of questions to permit a Stage Right exit in the midst of the hearing, leaving the other witnesses at the table.
The Amgen testimony noted that a new biotechnology drug has a development cost running at the rate of $ 1.2 billion spread over a 15 year period. Amgen itself pours out $ 3.4 billion in research costs each year, 90 % of which advances science but represents false starts in terms of any commercial possibilities. Quiet patent title at an early date is an absolute requirement for such expenditures.
One Size Doesn’t Fit All: Quite clearly, the Amgen testimony, better than any representative for any of the various organizations, demonstrated the absolute, positive necessity the biotechnology community has for a highly reliable post-grant proceeding and one where there is early, quiet patent title ensured. Amgen persuasively explained the position of his company in a scenario that is echoed by all major pioneer pharma and biotech entities and manifests the futility of any attempt to ram through Congress a one-size-fits-all "second" window solution.
The Need for Independent PTO-FreePost-Grant Governance: The Amgen testimony implied a need for a very reliable post-grant system. While not a subject of the Congressional testimony yesterday, previous notes by this writer have suggested that as an imperative for any post-grant reform the proceedings must be divorced from the political control of the PTO. The BlackBerryGate and other long-running reexaminations manifest the necessity of this reform. It must be remembered that the 1980 original reexamination law could have been effective, including inter partes participation and including expedited consideration, all possible within the scope of the reexamination law and certainly within the budget of the PTO. The fact that the PTO today denies the "special dispatch" examination of a reexamination proceeding of importance speaks for itself. There is nothing to preclude a PTO-run post-grant review from similar political interference from the Director.
(2) Gary L. Griswold, 3M, for the 21st Century Patent Coalition spoke, as usual, strongly opposing any "second window" post-grant review and opposing other IT/EE initiatives. While the death of the current legislation is a certainty with or without the strident voice of the 21st Century Patent Coalition, the intransigence of the 21st Century Patent Coalition is perhaps the best indicator that no Phoenix can ever arise from the ashes of the current legislation.
Where is the AIPLA? The vast, overwhelming majority of the membership of the AIPLA favors reasonable patent reforms and can hardly be cast in the position of favoring the intransigent position taken by the 21st Century Patent Coalition. To say that the leadership of AIPLA is through an Executive Committee controlled by the common interests of the 21st Century Patent Coalition is difficult to dispute. (Oddly, AIPLA is the only bar association that is a member of this coalition, now just one of forty members of an otherwise industry coalition, "plus Patent Cafe", identified as a post-script to this note.)
IPO has disappeared: It was nowhere to be seen nor heard. [DDC: IPO Continues to be a Major Player in this Reform]
(3) Prof. John R. Thomas, Congress’ CRS in house researcher dismissed the post-grant legislation as "marginal". Rebutting those that portray the post-grant proceeding proposed by Congress as a "sea change", the professor said that the legislation would represent a "marginal change".
(4) William T. Tucker, California university system, stayed away from the "second window" debate, but uniquely focused upon a need to retain the "first inventor" system.
(5) Anthony Peterman, Dell Patent Counsel, expressed EE/IT views on the essential nature of the "second window" for his industry. Pointedly asked by the Chairman whether he understood the viewpoint of the biotech industry as expressed in the earlier testimony to avoid a late-stage "second window", Peterman agreed with the need to see whether a solution could be reached that would satisfy both sectors.
Notes:
The Coalition for 21st Century Patent Reform members include (per its announcement): "3M, Abbott Laboratories, Air Liquide, Air Products, AstraZeneca, Baxter Healthcare Corp., Beckman Coulter, Bridgestone Americas, Bristol-Myers Squibb, Cargill Incorporated, Caterpillar, Cephalon, CheckFree, Corning, Dow Chemical, Eastman Chemical, Electronics for Imaging, E.I. du Pont (DuPont), Eli Lilly, ExxonMobil, General Electric, Genzyme, GlaxoSmithKline, Henkel Corporation, Hoffman-La Roche, Johnson & Johnson, Merck, Millennium Pharmaceuticals, Monsanto, Motorola, Novartis, Patent Cafe.com Inc., Pfizer, Procter & Gamble, Sangamo BioSciences, Texas Instruments, UnitedTechnologies, Weyerhaeuser, Wyeth, and AIPLA."
Senior Administrative Patent Judge McKelvey authored an opinion on January 12, 2007, joined by Chief Administrative Patent Judge Fleming and Administrative Patent Judges Schafer, Hanlon, Lane and Tierney. The expanded panel addressed part of a Motion to Exclude Evidence filed by senior party Lan in Pevarello v. Lan, Patent Interference No. 105,394 (January 12, 2007), wherein party Lan sought the exclusion of evidence based on alleged violations of the Cross Examination Guidelines during a deposition. The panel did not rule on the admissibility issues, but took the “opportunity to address practice under the Guidelines” as well as address permissible deposition testimony relating to the creation and execution of direct testimony affidavits. Pevarello, at p. 2.
In interference proceedings, depositions are largely limited to the “cross-examination” of a witness who has given written affidavit evidence in support of a motion. The Trial Section adopted Guidelines to govern the cross-examination of witnesses, included as an appendix to the Standing Order of January 3, 2006. See Appendix: Cross Examination Guidelines. The Guidelines were modeled after Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993), and the Board invited the bar to review that decision to answer questions that may arise with respect to deposition practice in interference proceedings.
It is not likely that the attorneys here were the only ones to have ever violated the Guidelines; if that were the case, the Board would not have felt the need for such an expanded discussion. Presumably, the Trial Procedures Section of the Trial Division of the Board wanted to make clear that it was dead serious about the Cross Examination Guidelines and saw this case as a textbook example of the sort of behavior it would like to discourage. Expanding the merits panel by the addition of Judges McKelvey and Schaffer, judges of long experience in inter partes matters, and the addition of Chief Judge Fleming, was clearly designed to send a message that the Guidelines are Board policy in interference proceedings before the Trial Procedures Section of the Trial Division of the Board. Applying the Guidelines to the case at hand, the Board emphasized the following practice points, with the aim toward re-establishing more decorum and control during a deposition.
Practice Points:
Blanket objections waive the objection: An attorney lodging an objection during a deposition must state the legal basis for the objection. “Motions to exclude based on blanket objections [a naked objection] will not be considered because blanket objections during a deposition fail to comply with Guideline [3].” Pevarello, at p. 7. The legal basis for an objection, moreover, “must be found in the rules governing admissibility of evidence for contested patent cases, including the Federal Rules of Evidence.” Id. at p. 6. The Board determined that the parties’ stipulation to the contrary (the parties agreed that failing to state the basis for an objection would not waive the objection) abrogated Guideline 3 and was, thus, not proper.
Failing to object waives objection; objection as to the “form” of question is improper: The parties also stipulated that “all objections are reserved until the time of trial, except those objections that are directed to the form of the question.” The Board made clear that failing to object during a deposition acted as a waiver of the objection, noting that in interference proceedings, there is no subsequent “trial.” Pevarello at p. 18. The Board further concluded that, in patent interference cases, counsel may not object to a question based on the “form” of such question. The Board concluded that “form” objections are not sanctioned by the Federal Rules of Evidence and, thus, are improper in patent interference proceedings. Id. at p. 18.
Limit exchanges between counsel – call the Board instead: Throughout the opinion, the Board cited many examples of, and admonished both attorneys for, debating the merits of an objection on the record. The Board stressed that the objection and its legal basis must be stated in a “non-argumentative and non-suggestive manner”. Pevarello, p. 5. Should counsel continue to disagree regarding objections, particularly with respect to whether a certain line of questioning is proper, the Board invited counsel to call the administrative patent judge to resolve the dispute in real time. Id. at p. 19.
Defending attorneys should not ask for clarification of a question or an answer: The Board criticized defending counsel for seeking clarification, on behalf of the witness, of a question, stating that this practice contravenes Guideline 1 (“At the beginning of a cross-examination, the party conducting the cross-examination may instruct the witness on the record to ask deposing counsel … for clarifications… See ¶ Guideline [1], Appendix to Standing Order, p. 71). The Board placed the burden of seeking clarification of a question squarely on the testifying witness, indicating that the Board found no legal basis for objecting to a question as “ambiguous, not clear or vague.” Id. at p. 10. The Board further admonished defending counsel not to attempt to “clarify” the witnesses’ testimony, as that amounts to the “lawyer [taking] over control of the case from the Board.” Id. at p. 14. Thus, the defending attorney should not restate or question the witnesses’ testimony under the guise of an objection or correcting the record.
Prepare your witness before the deposition — not during the deposition: The Board strongly discouraged comments made by the defending attorney that could be perceived as “coaching” the witness to give (or stop giving) certain testimony. This not only violates Guideline 3 (“Counsel must not make objections or statements that even remotely suggest an answer to a witness.” See ¶ Guideline [3], Appendix to Standing Order, p. 72), but also the “decorum rule” of 37 CFR §41.1(c) (2006) (“Decorum. Each party must act with courtesy and decorum all proceedings before the Board, including interactions with other parties.”) The Board demonstrated a lack of tolerance for these antics, determining that the following remark made by counsel during the Witnesses’ answer: “‘I’m going to object because there’s no question pending’ translated into plain English means ‘Do not say anything more.’” Id. at p. 15. The Board also criticized counsel for coaching the witness when he objected to a question based on misstating the witnesses’ prior testimony. The Board placed the burden of pointing out misstatements on the witness and indicated that the proper time for the defending attorney to clarify the witnesses’ testimony is on re-direct. Id. at p. 17.
Avoid questions regarding the preparation of declarations: The Board then turned to a separate, but related, topic regarding appropriate/inappropriate lines of questioning regarding the preparation of an affidavit or declaration. According to the Board, attorneys should not question the witness regarding the mechanics of preparing the declaration, absent some compelling reason. Id. at p. 23. Thus, attorneys should refrain from asking who drafted the declaration (whether it was counsel or the witness), whether there were prior inconsistent drafts or whether there were discussions between counsel and the witness. The Board, recognizing that its position conflicts with the majority interpretation of Rule 26(a)(2) of the Federal Rules of Civil Procedure, supported its decision with reasons given in the August 2006 American Bar Association report that advocates amending Rule 26 to limit expert discovery. The Board also noted that the Federal Rules of Civil Procedure do not apply in interference cases before the Board. The deposition of a witness should focus on the merits of the declaration, including: (i) The witnesses’ credentials; (ii) The invention; (iii) Relevant prior art; (iv) The basis for facts and opinions; and (v) Facts/issues relating to conception, diligence and reduction to practice. Id. at p. 22.
The panel hearing the interference (Administrative Patent Judges Hanlon, Lane and Tierney) will now, in view of the opinion, rule on Lan’s Motion to Exclude the Evidence. Failing to follow the Cross Examination Guidelines risks the imposition of sanctions under 37 CFR § 41.158, as noted in the Standing Order, ¶ 128. The potential sanctions under § 41.158 can be serious, and include entry of: (1) An order holding certain facts to have been established in the proceeding; (2) An order expunging, or precluding a party from filing, a paper; (3) An order precluding a party from presenting or contesting a particular issue; (4) An order precluding a party from requesting, obtaining, or opposing discovery; (5) An order excluding evidence; (6) An order awarding compensatory expenses, including attorney fees; (7) An order requiring terminal disclaimer of patent term; or (8) Judgment in the contested case.
Note: Judge Bruce Stoner spent seventeen years hearing patent appeals, including eight years as Chief Judge of the BPAI. In 2003 he joined the Greenblum & Bernstein firm. Jill Browning is a partner at the same firm and a director of the APLF.
< ?xml:namespace prefix ="" o />ED: The following note was submitted for anonymous publication by a practicing patent attorney:
For all the public debate over controversial broad objectives in the various pending patent reform bills, there has been remarkably little published academic or other attention to whether or not the extensive new specific draft language in these bills will accomplish those objectives without drafting errors creating unintended ambiguities in judicial interpretations. This note will particularly question, an example that seems to be in common to the pending bills, the draft language for the crucial definition of the “effective date” of an application or patent.
The seriousness of current patent reform legislative efforts has been more than adequately demonstrated over the past two years. There have been a number of Congressional hearings, other public debates and IPL association activities over the [evolving] versions of H.R. 2795 in 2005, the Berman/Boucher H.R. 5299 in 2004, major FTC and other studies and reports on patent reform, etc. Now, on < ?xml:namespace prefix ="" st1 />August 4, 2006 Senators Hatch and Leahy have introduced “their own” Bill, S. 3818, the “Patent Reform Act of 2006”( for which there will be a House equivalent). Although there will be considerable further debate into the next term of Congress, passage of some form of major new patent legislation next year seems quite likely. Many of these patent reform proposals are not that controversial.In particular, clarifications of “willful infringement,” §103(c), inter partes reexaminations, assignee filing, restoration of the prior patent venue statute, an “opposition system” of some kind, elimination of most interferences (and other “secret prior art” business investment uncertainties) with some form of “first inventor to file” plus some form of associated changes in §102 and “prior user” defenses,etc.Thus, there are highly likely to be a number of major changes in the present patent statute even if the most controversial provisions end up removed or amended in the final legislation.
This note is not about any controversial issues. Rather, the intent here is simply to encourage better reviewing, by both the patent bar and academia, of specific drafting languageissues that might present serious future ambiguities or unintended legal consequences, which seems to be getting insufficient attention. Whatever version of any of these draft bills is enacted, it will generate a great deal of new statutory language for which there will be no legal precedents. This new language will at best only be eventually interpreted in “cases of first impression” by individual panels of the Federal Circuit. That should give readers pause to consider that some Federal Circuit interpretations of even relatively old patent law language have been quite controversial, and some have even been unanimously overruled by the Supreme Court. This in turn should strongly suggest that very careful attention be paid to completely new and untested statutory language to insure that it is as completely unambiguous and as completely free of possible unintended interpretations as possible. All members of the patent bar and their clients will be greatly affected by any of the pending “patent reform” bills.
No doubt those authoring the specific legislative language consider that it does not have any possible ambiguities or misinterpretations, to them. However, legal and Congressional history is full of such surprises. The frequent necessity for subsequent “technical corrections” legislation is evidence enough.For example, it took several years for passage of technical correction legislation to fix an unintended problem created by the 1999 AIPA legislation’s amendment of 35 USC §102(e).Patent law is a specialized legal area of uniquely semantically clever lawyers, who unfortunately rarely apply themselves to legislation in advance. Furthermore Congressional staff members, no matter how brilliant, are highly unlikely to have sufficient patent law practice background to be able to anticipate all of the possible interrelated consequences of major changes in patent statutory language.
Thus, there should logically be a much broader participation by the patent bar in careful and critical reading of draft legislation and providing thoughtful comments on specific wording in time to fix it.That is, not just depending on brief summaries of theintentions or alleged effects of this legislation by proponents or opponents.Especially from lobbyists who have never practiced patent law, “planted” newspaper and magazine articles, and other very incomplete and unreliable sources. More advance consideration is needed by those who can actually understand this legislation, the legal problems it is addressing, and the full ramifications of the specific legislative language. In many cases this may be merely to suggest minor wording changes.Even if the legislation itself is not changed, the legislative history might be improved in some cases. This would also seem to be a far more meaningful activity for law school professors than non-pending legislative proposals which no one with any influence is supporting.
To pick just one example in this draft legislation language, consider the critical S. 3818 definition of the term “effective filing date of a claimed invention,” which is identical or similar to that of other patent reform Bills.All competent patent attorneys are familiar with this date and its criticality.It is even more crucial for the proposed “first to file” system.Under long established current case law it means the filing date of a patent application having full 35 USC §112 support for what is being presently claimed (in its subsequent patent or in any other pending applications claiming priority date benefit therefrom). It has not ever meant the filing date of an application containing a bare unsupported claim with no §112 enablement of any kind.
So, let us consider the actual language of S. 3818 “SEC. 3” on p. 2.It contains in subsections (h)(1) and (2) a new definition of the “effective filing date of a claimed invention.” It states that the “effective filing date of aclaimed invention” is:
“(1) the filing date of the patent or the application for patent containing the claim to the invention;or
(2) if the patent or application for patent is entitled to a right of priority of any other application under .. or an earlier filing date in the United States under .., the filing date of the earliest such application in which the claimed invention is disclosed in the manner provided by the first paragraph of section 112.” [Emphasis supplied]
First, note that SEC.3 (h) subsections (1) and (2) are defined in the alternative – “or”. Note that the first alternative, (h)(1), has no §112 requirement at all.It would literally provide an “effective filing date” for an application or patent merely “containing the claim” irrespective of whether or not it ever had any §112 enablement support as of its filing date, incongruously unlike the alternative (h)(2).[As all patent attorneys know, a §112 enablement attempted to be added after the filing date is illegal “new matter.”]Thus a literal reading of Sec. 3 (h)(1), especially as read in contrast to alternative (h)(2) (normal statutory interpretation) would give an “effective filing date” to a patent application filed with a bare claim to an invention even if there was no enablement example or description whatsoever for that claimed invention! That is, granting a “first inventor to file” date for a bare concept suggestion with no teaching of any way to make or use it.Yet, if that same application or patent had a foreign or U.S. priority claim it would not get that date benefit, because then (h)(2) would apply instead, appropriately requiring that “the claimed invention is disclosed in the manner provided by the first paragraph of section 112.” Furthermore, would not applicants filing a continuation or divisional also lose this literally defined (h)(1) original effective filing date by thereby converting the application and its ultimate patent from (h)(1) to (h)(2)?
It someone can clearly explain why a normal judge would not read this proposed statute this way if it is enacted, this reader would gratefully appreciate the enlightenment.
Now, confusing this reader further, please note that on page 5 of this Bill you will find in a new §102(b)((3) another, different, and not cross-referenced definition [why?] of the same critical term for when a patent or application is “effectively filed,” but here only “under subsection (a)(2).” This effective filing date definition isonly with respect to “subject matter described in the patent or application -”..”as of the filing date ..” [emphasis supplied]
There is also a subparagraph Sec. 3 (h)(2)(i) on page 3 stating that:
“(i) The term “claimed invention” means the subject matter defined by a claim in a patent or an application for a patent.”
Why is this Sec. 3 (h)(2)(i) definition presented only as a subparagraph of (h)(2), thus by normal statutory interpretation only defining the term “claimed invention” just in (h)(2)?As noted above, the same term “claimed invention” also appears in (h) itself prior to both (h)(1) and (h)(2).Was this deliberate for some reason?
Further as to the vital question of what would still be prior art, or not, this p. 3 et sec S. 3818 version of a whole new 35 USC §102 definition of prior art seems shorter and simpler than that of prior bills.That may be desirable, but it should also trigger patent attorney and client interest in what is being left out of the present statute and all its case law, and how situations will be handled if this Bill becomes law.For example, the present and very important “on sale” bar defense would be eliminated in this and other pending legislation. However, the prior pending H.R. 2795 §102 had been revised to make it clear that software in one’s own sold products would remain prior art to later attempts of others to patent it.That was widely considered vital to avoid judicial debates over whether or not that internal software would be considered “publicly known,” since that would be the only other §102 defense left for this now-common situation under this new §102 . Yet S. 3818 seems to have left out that vital provision.
Finally, just for a couple of other drafting examples, the S. 3818 amendment of §103 in (c)(1)(A) on page 6 restores an undisputed typographical error previously caught and corrected in the amended version of H.R. 2795.Namely, “through” instead of “though” in: “A patent for the claimed invention may not be obtained through [sic] the claimed invention;..”Also, what does the last line of S. 3818 Sec. 5 (b)(2) on p. 20 mean by “..such claim, the infringer.”?
In conclusion, there are undoubtedly other potential unintended interpretations or drafting errors subject to unpredictable D.C. and Federal Circuit de novo interpretations in all this new language that ought to be under a lot more academic and other public discussion.Especially those relating to 35 USC §102 and other extremely important statutory sections affecting all aspects of patent law practice.The introductory remarks for S. 3818 by Senator Hatch have welcomed further useful input on this draft legislation.Careful and timely review and correction of specific language ought to be provided by all those in a position to do so.
This year, the Supreme Court will determine whether a patentee should have a right to an injunction once infringement is found. This issue is fundamentally important to the practice, and a number of amici have filed briefs. (briefs in support of MercExchange will be filed later this spring).
The following is a review of the briefs received thus far. Copies of the briefs are available for download at the bottom of this post.[*]
Yahoo!’s Brief
Yahoo!, with the support of professor Robert Merges takes issue with patent trolls, and their propensity to ambush and cause harm. According to the brief, patent trolls are “entities whose primary purpose is to prey on innovators who actually produce societally valuable products.”
Yahoo!’s solution is that the “availability of injunctions should turn largely on whether the patentee engages in research and development and should discourage entities whose sole business is patent litigation.”
Electronic Frontier Foundation Brief
EFF thinks about free speech and argues that “automatic injunctions” pushes against our first amendment protections. EFF cites the importance of blogging and the potential of patent owners to claim control over internet publishing mechanisms.
AIPLA & FCBA Joint Brief
AIPLA is nominally in support of neither party, but is in fact in support of MercExchange. AIPLA argues that the CAFC’s “general rule” of issuing injunctions after a finding of liability is correct because the harm caused by continued infringement is “inherently irreparable.” The brief also argues that, in this case, the CAFC is not guilty of expanding the power of patents. Rather, the general rule of issuing injunctions has long been a part of patent practice and is consistent with the analysis in other areas of law such as trademarks.
Fifty-Two Law Professors Brief
Professor Lemley along with fifty-one other professors filed their brief in support of eBay. Notably, the professors attempt to make a distinction between a district court’s refusal to grant an injunction and a compulsory licensing scheme.
Interestingly, professors are clear that courts should be given discretion to deny injunctive relief, but that such discretion should not be used regularly or even often. This implies that the professors are at least in favor of a presumption that an injunction will issue.
Brief of Professors Pollack & Reynolds
Another set of law professors and legal scholars (Including Instapundit) argue that the Constitution supports a “presumption that injunctions are unwarranted for patent holders who are neither practicing their infringed inventions nor making good-faith efforts to prepare to practice their inventions.”
Teva’s Brief
Teva, primarily a generic drug manufacturer, filed its brief arguing that (1) district court’s should have discretion and (2) the public interest should be represented in any injunction decision.
Computer & Communications Industry Association (CCIA) Brief
CCIA argues that the CAFC continues to make patents stronger while the PTO continues to weaken patent quality. This combination, according to the advocacy group, encourages litigation and impedes innovation.
Bar Assn. of the District of Columbia’s Brief
The district court questioned the “unsettled political nature” of business method patents. In its brief, the BADC questions whether politics or draft legislation can be considered when determining an injunction.
IBM’s Brief
IBM argues that Section 283’s permissive language (“may”) requires that courts examine equitable principles before issuing an injunction. Furthermore, the patent leader argues that the Supreme Court’s Continental Bag precedent also requires examination of the equitable principles.
Franklin Pierce Law Professors Brief
The law professors, led by Thomas Field, argue that the right to injunction should be strong and not variable according to patentee’s use of the patent. “The trial court accepted arguments analogous, given the apparent economic disparity between the parties, to ones Goliath might have made in asking that David be disarmed.”
Brief of Intel, Microsoft, Oracle, and Micron
The four technology giants have joined together in an “Innovator’s Alliance” and filed a brief in support of eBay’s position. The brief reviews some historical aspects of patent law and argue that the Founding Fathers would not have approved of automatic injunctions for patent infringement.
Brief of the Securities Industry
Several securities industry groups joined together to file a brief in support of eBay. The brief discusses their worries that a patent infringement lawsuit could hamper the reliability of financial markets
Brief of Research-In-Motion
RIM argues that the patent enforcement system must promote the useful arts
Nokia’s Brief
Nokia follows a similar vein as the EFF, but argues that interoperability of networks and systems is extremely important, and patents on de facto standards should not be granted injunctions.
Brief of the Bar of the City of New York
The NY Lawyers argue that injunctions should not be the general rule. Rather, courts should consider a broad range of factors that may sway the decision of whether to grant an injunction. These include irreparable harm; whether infringing activity was lawfully initiated (e.g., prior to issuance of the patent); whether patentee delayed in asserting a claim; whether there is a disputed question of law (e.g., claim construction); harm of an injunction to the infringer compared to benefit of the injunction for to patentee; extent of harm to third-parties.
Microsoft’s appeal of this case is currently pending before the Supreme Court. In a parallel action, however the Eolas patent has been undergoing reexamination at the USPTO.
As occurs in almost all inter partes and director-ordered reexaminations, the patent office issued a non-final rejection to Eolas. Although this first rejection was a good sign for Microsoft, on September 27, 2005, the patent office indicated that it was filing a “Notice of Intent to Issue a Reexam Certificate” for patent number 5,838,906.
This means that the PTO has decided, for a second time, that the ‘906 patent is valid.
Under the American Inventors Protection Act (AIPA), the Patent Office is required to submit a report to Congress evaluating the success of the newly enacted inter partes reexamination proceedings. Today, the PTO released its Report to Congress on Inter Partes Reexamination [PDF].
Over the past several years, the buzz surrounding inter partes reexamination has increased. However, the report notes that the growth of such re-exams has been slow. For example, only 27 inter partes reexaminations were filed in 2004.
Based upon a review of the statute and comments from interested parties, the USPTO released a set of recommendations for amending the Patent Act in order to improve inter partes reexamination. The PTO points to three areas that need improvement:
Clarifying the inter partes reexamination estoppel provisions.
Permitting the requester of an inter partes reexamination additional opportunities to provide input as to Office actions.
Extending the requester’s statutory for comment (currently 30 days) after the patent owner responds to an Office action, or to permit the USPTO Director to set the period for comment by rule.
In addition, the Patent Office noted that their Post-Grant Review proposal offers “a comprehensive and desirable way to address patentability issues after a patent has been awarded.” Generally, the proposed Post-Grant Review would provide a more comprehensive review model and allow a more adversarial review presided over by USPTO administrative patent judges. The Review would include closely controlled discovery and cross-examination upon the challenger’s presenting sufficient grounds that one or more of the patent claims are unpatentable.
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There is a possibility that a passed Patent Reform statute would eliminate third-party-requested reexaminations (ex parte and inter partes) and yet fail to create any substantive third-party initiated post-grant procedure to replace the current options. 
By 
Eolas v. Microsoft (Reexamination at the PTO).