There have been a number of patent-related news items making their rounds recently.
PTO to Stay Open in Event of Government Shut Down
Hal Wegner shared a memo from Acting PTO Director Teresa Rae to PTO employees that the agency will use its reserve funds to remain open for at least several weeks in the event of a government shut-down on Tuesday.
As you know, the Obama administration is working diligently with Congress to try to ensure that the federal government remains open and continues to do its work on behalf of the American people. However, I wanted to inform you that even in the event of a government shutdown on October 1, 2013, the United States Patent and Trademark Office will remain open, using prior year reserve fee collections to operate as usual for at least a few weeks. We continue to assess our fee collections compared to our operating requirements to determine how long we would be able to operate during a government shutdown; we will update you as more definitive information becomes available.
Because the USPTO maintains sufficient carryover funding from prior fiscal years, our agency can and will stay open for business for a period of time using these available reserves. During that time we will all continue to conduct our duties and serve our Nation, by processing the patent and trademark applications that drive our country’s innovative economy. Should we exhaust these reserve funds before the government shutdown comes to an end, USPTO would have to shut down at that time, although a very small staff would continue to work to accept new applications and maintain IT infrastructure, among other functions.
I realize you likely have many more questions. As new information becomes available, we will inform you promptly and thoroughly. Your respective business unit managers will also be reaching out to you to provide further clarification, as needed.
I thank you for your hard work, and the continuing dedication you demonstrate to the American people.
Congress Continues to Seek More Patent Reform
Patently-O has provided analysis and review of a patent reform bill discussion draft introduced by House Judiciary Chair Bob Goodlatte (R-VA). The purpose of the bill, according to Rep. Goodlatte is to end “[a]busive patent litigation” specifically by “patent trolls.”
The bill would repeal the right of a civil action against the PTO to obtain a patent, substantially narrow the estoppel provisions of post-grant review, require the PTO to construe patent claims as a court would during post-grant and inter partes proceedings, codify obviousness-type double patenting, expand the scope of covered business methods for review, eliminate patent term extension after the filing of an RCE, and overturn the Supreme Court decision that patent malpractice suits belong in state court.
Other provisions in Rep. Goodlatte’s bill are similar to other bills seeking to reduce patent litigation abuse and patent troll tactics. The bill would raise patent infringement pleading requirements, require the award of attorneys’ fees to prevailing parties (and against all interested parties), limit discovery prior to a court’s claim construction ruling, require companies asserting patents to disclose all interested parties, require courts to stay infringement suits against customers until suits against manufacturers are resolved, and protect creditor-licensees from foreign bankruptcies by IP owners.
Supreme Court Patent Cases
The Supreme Court’s October 2013 Term begins Monday, October 7. The Court is scheduled to hear oral arguments in Medtronic v. Boston Scientific Corp. on November 5. The question that Court will consider in that case is whether a declaratory judgment plaintiff has the burden to prove non-infringement against a patent owner. The Federal Circuit ruled that the DJ plaintiff does bear the burden of proof.
The Court is considering or will consider petitions in a number of other patent cases as well.
Akamai v. Limelight. The Court issued a CVSG order in this case in June where it asked for the views of the Solicitor General as to whether it should hear this case. Akamai concerns multi-party infringement where more than one party completes all of the steps required in a patent claim. The issues relate to both direct infringement and indirect infringement (inducement or contributory infringement).
Alice v. CLS Bank. An en banc Federal Circuit could not garner a majority to determine whether the computer-related claims in this case were patent eligible subject matter. A plurality of the court affirmed the district court’s holding that they were not.
WildTangent v. Ultramercial. The Federal Circuit has twice held that the internet monetization claims in this case do constitute patent eligible subject matter. The Supreme Court had earlier asked the Federal Circuit to reconsider its opinion in light of the Mayo v. Prometheus decision.