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Archived updates for Wednesday, January 31, 2007

I/P Revenue Generation and Open Source Development on the Minds of European Executives

A January 2007 survey by the Economist Intelligence Unit found that European executives most frequently cite the opportunity to expand their revenue base (50% of survey respondents), slightly more than mention the need to protect investments in R&D (49%), when asked what drives their quest for better IP management. Open source development is also at the top of the European agenda. Fully 68% of surveyed European executives say that increased R&D collaboration with third parties is central to improving their firms' innovation, and another 46% say the same of collaboration in standards development.

More on "open innovation" here and here.
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Archived updates for Tuesday, January 30, 2007

New USPTO Procedures for Omitted Items in Nonprovisional Patent Applications

On January 29, 2007, the U.S. Patent and Trademark Office announced revised procedures for handling nonprovisional applications having omitted items (e.g., missing pages or figures or missing or uneadable compact discs). Under the revised procedure, applicants must reply to a notice regarding omitted items in a nonprovisional application within the time period set by the notice in order-to avoid abandonment. However, this time period is extendable under 37 CFR 1.136.

Applicants will continue to have the following three options:
  1. petition for the date of deposit by filing a petition under 37 CFR 1.53(e), asserting that the omitted item was in fact deposited in the Offce, along with evidence of such deposit (e.g., a date-stamped itemized postcard receipt) and the petition fee;

  2. petition for a later fiing date by filing the omitted item, along with a
    supplemental oath or declaration in compliance with 37 CFR 1.63 and 1.64 referrng to such item, a petition under 37 CFR 1. 182 and the petition fee requesting the date of such submission as the application filing date; and

  3. accept the application as deposited and filing an appropriate amendment to the application (e.g., a substitute specification).

Under the revised procedure, applicants who wish to accept the nonprovisional application as deposited (the third option) will be required to file an appropriate amendment (e.g., a substitute specification) within the extendable time period to avoid abandonment ofthe application. Applicants wil no longer be able to accept the nonprovisional application as deposited by failing to file a reply to the notice within the set time period.

If applicant wants to accept the application as deposited (without adding the subject matter that was in the omitted item), then the applicant is required to submit one òr more of the following items without adding any new matter (see 35 U.S.C. 132(a)):

  • For a missing page of the specification, a substitute specification (including claims) that amends the specification to renumber the pages consecutively and cancels any incomplete sentences, in compliance with 37 CFR l.i21(b)(3) and 1.125;

  • For a missing figure of the drawings, replacement drawing sheets in compliance with 37 CFR 1.121(d) to renumber the drawing figures consecutively (if necessary), a substitute specification (excluding claims) that amends the specification to cancel any references to any
    omitted drawing(s) and corrects the references in the specification to the drawing figures to correspond with any relabeled drawing figures, in compliance with 37 CFR 1. 12 1 (b)(3) and 1.125;

  • For a missing page of the claim listing only, a replacement claim listing with the claims renumbered consecutively or, if amendment to the claims is also necessar, then a complete claim listing in compliance with 37 CFR 1.121(c);

  • For a missing or unreadable compact disc, a substitute specification (excluding the claims) deleting the reference to the compact disc and the files contained on the compact disc, in compliance with 37 CFR 1. 121(b)(3) and 1.125; and

  • For a missing or unreadable fie submitted on a compact disc, a substitute specification (excluding the claims) deleting the reference to the missing or unreadable file, in compliance with 37 CFR 1.121(b)(3) and 1.125; and (b) a replacement transmittal letter listing all of the fies, except the missing or uneadable fie, in compliance with 37 CFR 1.52(e)(3)(ii).
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ECJ Denies SPCs for Novel Formulation of Known Drug

According to a recent article by Dr. Stefan Danner at the Munich office of Maiwald Patentanwalts GmbH, the European Court of Justice (ECJ) has ruled (C-431/04) that the German courts were correct in rejecting an application for a Supplementary Protection Certificate (SPC) for Gliadel,™ having a novel formulation of a known therapeutic agent.

So-called "SPCs" extend the term of patents covering medicines for up to five years in order to compensate for the long time needed to obtain regulatory approval of these products. Applications for a supplementary protection certificate must be filed on a country-by-country basis. Certificates are granted for products which constitute the "active ingredient", or combination of active ingredients, of a "medicinal product."

According to Dr. Danner's article:
The product in question, Gliadel™, comprises the cytotoxic drug carmustine embedded in a matrix made of the polymer polifeprosan. The Federal Patent Court had rejected the SPC, arguing that Gliadel™ was no true combination of active
ingredients but rather a new formulation of the long known carmustine.
More than 8,000 SPCs for medicinal and plant protection products were reportedly filed in Europe between 1991 and 2003. For more informaton, check out "Supplementary Protection Certificates for Medicinal Products and Plant Protection Products - A Guide for Applicants" from the UK Patent Office.
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Archived updates for Monday, January 29, 2007

Top Ten Decisions of the TTAB

According to John L. Welch at the TTABlog here.
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No Standing for for Plaintiff That Did Not Have Sole Ownership

In Israel Bio-Engineering Project v. Amgen, Inc., et al. (January 26, 2007), the Federal Circuit affirmed that IBEP lacked standing to bring the suit because it did not have sole ownership of the patent:

Rubinstein was a presumptive co-owner of the patent because he was listed as one
of four inventors on the face of the patent. It is undisputed that after the
R&D program ended, Rubinstein, beginning in January 1988, discovered the substantially purified protein and the specific amino acid sequence described in claims 2 and 3 of the '701 patent. Rubinstein then assigned his ownership rights to Yeda. Rubinstein was not required to assign his ownership share to IBEP under the Sub-R&D Contract, and Yeda properly became a co-owner of the patent by virtue of claims 2 and 3. Even assuming IBEP has co-ownership of the patent under the Sub-R&D Contract because claim 1 was discovered in 1987, the district court properly ruled that IBEP has at most a pro rata undivided ownership interest in the ’701 patent pursuant to the Sub-R&D Contract’s assignment clause. Rubinstein’s assignee, Yeda, also owns at least a pro rata undivided ownership interest in the whole ’701 patent and throughout the two appeals has made it quite clear that it wants no part of the litigation. Without a complete ownership interest or the voluntary joinder of Yeda, IBEP lacks standing to sue for infringement.
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Cement and Polyolefin Patches Unrelated for Likelihood of Confusion

In In re The W.W. Henry Co., L.P., Serial No. 78401595 (January 19, 2007), the U.S. Trademark Trial and Appeal Board held that applicant's mark PATCH & GO in connection with "portland cement based patch for use in patching, repairing or smoothing wall and floor surfaces," was not confusingly similar to the registered mark PATCH N' GO for "chemical filler preparations for use in the cosmetic repair of polyolefin surfaces."

The applicant argued that the respective goods are not related because they are used to repair different types of surfaces, and travel in different channels of trade to different classes of purchasers. In support of its position, applicant submitted Internet printouts from the cited registrant’s homepage which show that plastic manufacturers mold or form polyolefin products and that the cited registrant’s particular product is used by such manufacturers for the cosmetic repair of poorly molded or damaged polyolefin plastic parts. Further, applicant submitted information that describes its own product as, inter alia:

-Versatile - use over wood, concrete, plaster, block wall, masonry, brick, drywall, paneling, ceramic tile, metal & stucco
-Indoor & Outdoor Usage – for almost any surface.
According to Administrative Law Judge Hairston:

Appllicant maintains that its product is not for use by plastic manufacturers, but rather by do-it-yourselfers, handymen, and contractors. It is true that applicant’s goods, as identified, include a Portland cement based patch for use in repairing wall and floor surfaces, while the cited registration covers a chemical filler for use in the cosmetic repair of polyolefin surfaces, and therefore they can both be broadly described as preparations for repairing surfaces. However, to demonstrate that goods are related, it is not sufficient that a particular term may be found which may broadly describe the goods. See General Electric Co. v. Graham Magnetics Inc., 197 USPQ 690 (TTAB 1977); Harvey Hubbell Inc. v. Tokyo Seimitsu Co., Ltd., 188 USPQ 517 (TTAB 1975).

When we examine the specific items in the identifications, they do not appear to be related in a manner that would be likely to cause confusion. Applicant’s application is for a Portland cement based patch for use in patching, repairing or smoothing wall and floor surfaces, namely, wood, drywall, plaster, concrete, block wall, tile and wood paneling prior to painting or wallpapering. This is the type of product that would be offered to do-it-yourselfers, handymen, and contractors through hardware and home improvement stores. On the other hand, the chemical filler preparations
identified in the cited registration are specifically limited to use in the cosmetic repair of “polyolefin surfaces.” Applicant has submitted extrinsic evidence which shows that polyolefin products are molded by plastic manufacturers and that its goods are used by such manufacturers. See, In re Trackmobile, Inc., 15 USPQ2d 1152 (TTAB 1990) [when the Board is somewhat uncertain as to what the goods identified in the registration are, it is appropriate to consider extrinsic evidence to determine the nature of the registrant’s particular goods]. Additionally, we take judicial notice of the following definition of the word "polyolefin" in The Random House Dictionary of
the English Language (2d ed. 1987): any of a group of thermoplastic, stiff, light, and hard polymers obtained from the polymerization of simple olefins like propylene, used for injection molding, mostly in the automotive and appliance industries.”

In view of the above evidence, we cannot accept the examining attorney’s unsupported conclusion that the registrant’s goods are of a type that would be purchased by do-it-yourselfers, handymen, and contractors for use inside or outside a home. Rather, it appears that registrant’s goods are of a type used by plastic manufacturers. It seems to us that, because of the nature of the respective goods, they would be offered to different classes of purchasers through different channels of trade. As such, it is unlikely that there would be any opportunity for confusion to occur. See Electronic Design & Sales Inc. v. Electronic Data Systems Corp., 954 F.2d 713, 21 USPQ2d 1388 (Fed. Cir. 1992).
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Netherlands Adopts Patent Prosecution History Estoppel. Is Prosecution Disclaimer Coming Next?

According to the IPEG Blog,
On December 22, 2006 the Dutch Supreme Court ruled in the case Dijkstra vs. Saier that the patent prosecution file history may be invoked to prevent the patentee disclaiming an aspect of his patent monopoly in order to get a patent granted, but then reclaiming it during infringement proceedings. . . . This prevents a proprietor who has narrowed his claims during prosecution in order to meet requirements of patentability from then asserting the patent against any equivalent technologies falling within the scope of a surrendered territory.

Professor Wegner has noted that the Dutch are apparantly "departing from their brethren in Germany and the United Kingdom that deny the use of prosecution history to preclude application of the doctrine of equivalents." However, "at least insofar as the analysis in IPEG is concerned, the holding in Dijkstra vs. Saier does not extend to “prosecution disclaimer” under American law concerning the literal scope of protection:"

It is the American use of prosecution history to determine the literal limits of protection that has created much of the uncertainty in American claim construction and which is so
pointedly criticized by British critics even in their judicial opinions even by a member of the House of Lords, Lord Leonard Hoffmann, and the Court of Appeal, Lord Justice Robin Jacob.

American “prosecution disclaimer” has been an evolving doctrine that started from an unsupported statement by the late Giles Sutherland Rich in a mid-1980’s opinion that finds no Supreme Court case law foundation cited by Judge Rich. It is now eight years since Professor Thomas explained the wisdom
of denying prosecution history a status in post-patenting claim
interpretation and infringement analysis. See John R. Thomas, On Preparatory Texts and Proprietary Technologies: The Place of Prosecution Histories in Patent Claim Interpretation, 47 UCLA L. Rev. 183 (1999). Nowhere in any of the opinions
of the Federal Circuit is there any citation of Prof. Thomas’ important work. Nowhere is there any appreciation of his arguments or any indication that his work has even been read by anyone on the Federal Circuit (at least insofar as is reflected in any of the court's opinions).

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How to Bill More Hours?

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Archived updates for Friday, January 26, 2007

Federal Circuit Threatens Sanctions for Appeals from Non-Final Judgments

In International Electronic Technology Corp. v.Hughes Aircraft Co.,Inc. (January 26, 2007) the Federal Circuit threatened to sanction any member of the bar that that appeals, or replies to an appeal, from a non-final judgment:

The court takes umbrage at parties who have not carefully screened their
cases to ascertain whether or not a judgment is final. It is incumbent on all
parties to do so. The court should not be required or obligated to scrub every
case to determine finality. At this time, the court shall not issue an order to
show cause as to whether both parties should be cited or sanctioned for failing
to determine finality before filing; however, the parties and other members of
the bar are hereby placed on notice that the court shall in the future begin to
cite counsel for failure to determine whether or not the appealed judgment is

In this case the defendants-appellees, Hughes Aircraft Company, DIRECTV, Inc., and Thompson Consumer Electronics, Inc., filed with their answer to the complaint declaratory judgment counterclaims of invalidity and non-infringement. The district court granted a summary judgment of non-infringement in favor of the defendant. In the euphoria of victory, the defendants did not dismiss the outstanding counterclaims, and those counterclaims remain extant. A notice of appeal was subsequently filed by the plaintiff, International Electronic Technology Corporation. According to the court:

This court, upon reviewing the briefs and the appendices, found neither
dismissal of the counterclaims nor a Rule 54(b) determination by the district
court. Rule 54(b) provides that a district court may "direct entry of final
judgment as to one or more but fewer than all the claims or parties only upon an
express determination that there is no just reason for delay and upon an express
direction for the entry of judgment." Fed. R. Civ. P. 54(b). The parties have
failed to obtain such a partial judgment and the other possible avenues of
finality have not been followed. See Nystrom, 339 F.3d at 1347.
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EchoStar and Underwater Devices Under En Banc Reconsideration

In In Re Seagate Technology (January 26, 2007) the Federal Circuit ordered the following questions to be briefed for en banc consideration:
  1. Should a party's assertion of the advice of counsel defense to willful infringement extend waiver of the attorney-client privilege to communications with that party's trial counsel? See In re EchoStar Commc'n Corp., 448 F.3d 1294 (Fed. Cir. 2006).

  2. What is the effect of any such waiver on work-product immunity?

  3. Given the impact of the statutory duty of care standard announced in Underwater Devices, Inc. v. Morrison-Knudsen Co., 717 F.2d 1380 (Fed. Cir. 1983), on the issue of waiver of attorney-client privilege, should this court reconsider the decision in Underwater Devices and the duty of care standard itself?
Briefs of amici curiae will be entertained in accordance with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29.

En banc (latin for on the bench) or "in bank" is a term used to refer to the hearing of a case by all the judges of a court. Appellate courts in the United States sometimes grant rehearing en banc to reconsider a decision of a panel of the court (a panel generally consisting of only three judges), where the case concerns a matter of exceptional public importance or the panel's decision appears to conflict with a prior decision of the court.
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Minimum Requirements for Antitrust Allegations in Patent Cases

In Hydril Company, LP, et al. v. Grant Prideco LP, et al. (January 25, 2007), the Federal Circuit reversed the dismissal of an antitrust claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a valid claim for relief.

The district court had dismissed the antitrust claim because Hydril "failed to allege the minimum level of enforcement necessary to state a Walker Process claim against Grant Prideco," since it did not "allege enforcement activity by Grant Prideco which would create an objectively reasonable apprehension that Grant Prideco intended to enforce the ’631 patent against Hydril." Hydril II at 612.

According to the opinion by Senior Circuit Judge Friedman:
It is unclear whether the defect the court discerned in Hydril’s complaint was a
failure to allege sufficient enforcement activity by Grant Prideco, i.e., such
as would create a "reasonable expectation" that Grant Prideco would file patent
infringement litigation, or a failure to threaten such activity against Hydril
itself rather than against Hydril’s customers. Neither ground, however,
justifies dismissal of the complaint at what the district court described as the
"very early stages" of the case. Id.

Hydril’s complaint also alleged that Grant Prideco had fraudulently obtained its ’631 patent by "fail[ing] to disclose to the USPTO material prior art of which [it] was aware" (which the complaint described) and that "[t]he ’631 Patent as issued would not have been granted to Grant Prideco had Grant Prideco not omitted from its disclosures such known information on the prior art." According to the opinion:
If Hydril can prove these allegations, they would ground a claim of
monopolization in violation of § 2 of the Sherman Act because they "would be
sufficient to strip [Grant Prideco] of its exemption from the antitrust laws"
its patent would otherwise provide. Walker Process, 382 U.S. at 177 (footnote

The complaint also alleged that Grant Prideco obtained its patent by knowingly and deliberately concealing from the Patent Office prior art that it knew would have resulted in a denial of its application.
Since neither the patent application nor the prosecution history is before us,
we cannot tell whether it is contended that in obtaining the patent Grant
Prideco made affirmative misstatements to the Patent Office about the prior art.
Cf. Walker Process, where the complaint "alleged fraud on the basis that Food
Machinery had sworn before the Patent Office that it neither knew nor believed
that its invention had been in public use in the United States for more than one
year prior to filing its patent application when, in fact, Food Machinery was a
party to prior use within such time." 382 U.S. at 174. In any event, the
complaint’s allegations here go far beyond a simple failure to disclose to the
Patent Office prior art that the examiner would have deemed material.

Under our precedent, the conduct alleged in Hydril’s complaint would
constitute Walker Process fraud. Cf. Nobelpharma AB v. Implant Innovations,
Inc., 141 F.3d 1059, 1070 (Fed. Cir. 1998) ("We agree that if the evidence shows
that the asserted patent was acquired by means of either a fraudulent
misrepresentation or a fraudulent omission and that the party asserting the
patent was aware of the fraud when bringing suit, such conduct can expose a
patentee to liability under the antitrust laws. We arrive at this conclusion
because a fraudulent omission can be just as reprehensible as a fraudulent
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Archived updates for Thursday, January 25, 2007

Lighting, Digital Camera, and NAND Memory Import Investigations Requested

On January 23, 2007, Cooper Lighting, Inc. filed a "Section 337" complaint at the U.S. International Trade Commission requesting that an unfair import investigation be instituted involving "Certain Lighting Products, Components Thereof, and Products Containing the Same." The proposed respondents are Cordelia Lighting, Inc., Rancho Dominguez, CA and Jimway, Inc., Rancho Dominguez, CA." The complaint has been designated as Docket No. 337-2520 for indexing in the Commission's database.

On January 19, 2007, St. Clair Intellectual Property Consultants, Inc. (represented by Robins, Kaplan, Miller & Ciresi LLP) also filed a "Section 337" Complaint requesting that an unfair import investigation be instituted involving "Certain Digital Cameras and Component Parts Thereof." The proposed respondent is Eastman Kodak Company, Rochester, New York. The complaint has been designated as confidential and assigned Docket No. 337-2519.

On January 9, 2007, Toshiba Corporation, Inc. also filed a "Section 337" requesting that an unfair import investigation be instituted involving "Certain NAND Flash Memory Devices and Components Thereof, and Products Containing Same." The proposed respondents are: Hynix Semiconductor Inc., (Korea) and Hynix Semiconductor America Inc., (CA). The complaint has been designated as confidential and assigned Docket No. 337-2517.

These and other "Recent petitions and Complaints Filed with the USITC" are listed here.

Such complaints typically include an allegation of intellectual property infringement and a request that the infringing godds be excluded from entry into the United States. The Commission now has 30-35 days from the filing date of the complaints in which to decide whether to institute the investigation. Upon institution, the proposed respondent will be served with the Complaint via postal mail and an Administrative Law Judge will schedule discovery, conduct a trial, and issue a written "Initial Determination," usually within about 10 months. Due to the expedited nature of these proceedings, and availability of general exclusion orders affecting non-parties, it is important to notify any potential importers of similar products as soon as possible.

More information on "U.S. Import Exclusion Basics" is available here while the "Beginner's Guide to Unfair Import Investigations" is available here. Click here for an audio-visual Internet presentation on "Unfair Import Investigations at the U.S. International Trade Commission."

Click here for more information on the importance of monitoring these ITC investigations, and, for the latest details on a particular Section 337 investigation and/or other intellectual property matter, contact me, Bill Heinze (, at Thomas, Kayden, Horstemeyer & Risley in Atlanta, Georgia.
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Archived updates for Wednesday, January 24, 2007

Recapture Rule Must Not Undo Broadening Reissue

In a decision that Professor Wegner rightly calls "yet another set of claim construction rulings [that] manifest just how very difficult it is to apply the claim construction regime that has evolved under the complex rules of the court," the Federal Circuit in MBO Laboratories, Inc. v. Becton, Dickinson & Company (January 24, 2006) concluded, among other things, that the lower court i,properly applied the recapture rule to rewrite the claims, essentially unmaking the change that the PTO had permitted.

Under U.S. law, the recapture rule excludes earlier deliberate withdrawals and amendments from the allowable scope of a reissue patent. According to the decision by Circuit Judge Gajarsa:
Under the recapture rule, claims that are broader than the original patent claims in a manner directly pertinent to the subject matter surrendered during prosecution are impermissible." Hester Indus., Inc. v. Stein, Inc., 142 F.3d 1472, 1480 (Fed. Cir. 1998). We described in depth the required analysis in a recapture case in In re Clement, 131 F.3d at 1468-70. First, the original and reissued claims are construed to ascertain "whether and in what aspect the reissue claims are broader than the patent claims." Id. at 1468. If the reissue claims are broader in some way, the court must determine "whether the broader aspects of the reissue claims relate to the surrendered subject matter." Id. at 1468-69. This is accomplished by reviewing the prosecution history to determine what has been surrendered and determining whether the additional coverage of the reissue claim reads on the surrendered matter. Id. at 1469-70. If it does, the recapture rule bars the claim. Id. at 1470.

We believe that the district court erred in the first instance by applying the recapture rule to rewrite the claims, essentially unmaking the change that the PTO had permitted. Claim construction should not, of course, be blind to validity issues: "claims should be so construed, if possible, as to sustain their validity." Rhine v. Casio, Inc., 183 F.3d 1342, 1345 (Fed. Cir. 1999). A claim that is interpreted too broadly will run into validity issues, providing motivation for the construing court to choose a narrower interpretation if possible. However, validity construction should be used as a last resort, not a first principle: "we have limited the maxim [that claims are to be construed to preserve validity] to cases in which the court concludes, after applying all the available tools of claim construction, that the claim is still ambiguous." Phillips, 415 F.3d at 1327 (quotation marks omitted). Construction of the claims here is not so difficult a problem as to require resort to the validity maxim.

MBO clearly sought in reissue to broaden the scope of its patent coverage by rewriting its claims to cover all relative movement, not just retraction. That broadening was the explicitly stated purpose of the reissue application. Application for Reissue of U.S. Patent No. 5,755,699, Reissue Declaration of Blecher et al. at 2 (July 1, 1999) (original claims "claim less than we had a right to claim in that they fail to claim clearly that any
relative movement . . . will achieve the desired result of preventing needlestick hazard, whether or not the needle moves toward the body and connected safety device"). In light of these clear statements in the prosecution history of the RE ’885 patent, we are compelled to give effect to MBO’s stated intent to broaden the coverage of its claims. Whether those broadened claims are invalidated by the recapture rule is an issue separate from construction. In the narrowly limited appellate posture of this case, only the question of infringement, not validity, is before us.

All of the disputed method claims, both original and reissued, refer to "providing a body slidably receiving the needle." The district court construed that phrase as referring to "a stationary body into which the movable needle retracts." We disagree with
that construction. In our view, the term refers to the physical relationship between the guard body and the needle, such that the guard body is capable of sliding relative to the needle. That construction of "slidably receiving" is dictated in part by the embodiment depicted in Figures 3 and 4 of the RE ’885 patent; those figures show the needle extending forward, not retracting
backwards, relative to the guard body. See RE ’885 patent col.6 ll.25-32. Therefore, we find that the terms "relatively moved," "slidably receiving," and their cognates permit the needle and guard to slide in any manner.
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New USPTO Rules on Electronic Signatures, Form Modification, and Certificates of Transmission

For any paper, application, or reexamination proceeding filed in the Office on or after January 23, 2007, the United States Patent and Trademark Office (Office) is amending the rules of practice to support implementation of the Office’s electronic filing system (EFS) for patent correspondence, and in particular, the Web-based electronic filing system (EFS-Web).

Specifically, the changes in this final rule: (1) Provide patent users with a process for showing that certain national stage correspondence submitted via EFS-Web was actually received by the Office by relying on the acknowledgment receipt; and (2) create a new certificate of EFS-Web transmission, which will allow the Office to treat certain correspondence as received (for timeliness purposes) as of the date submitted by applicant rather than the date received by the Office if the correspondence is filed by EFS-Web.

Under EFS-Web, correspondence is accorded a ‘‘receipt date’’ that is the date the correspondence is received (Eastern Time) at the Office’s correspondence address set forth in § 1.1 (e.g., Alexandria, Virginia) when it was officially submitted. The ‘‘receipt date’’ is recorded on an acknowledgment receipt, which is automatically sent to the person filing the correspondence after the correspondence is officially submitted. Under EFS-Web, the acknowledgment receipt contains a full listing of the correspondence submitted, including the count of pages and/or byte size for each piece of correspondence in the submission. Accordingly, the acknowledgment receipt is a legal equivalent of a post card receipt described in the Manual of Patent Examining Procedure (MPEP), Section
503. For the filing of applications, the official filing date will continue to be stated on the filing receipt under § 1.54(b), which is sent to applicants after the submitted application parts are reviewed for compliance with the filing date requirements.

Section 1.4 on "Nature of correspondence and signature requirements" is being amended to formally allow "S-signatures" and modification of Office forms if all USPTO idenfitying information has been removed:

(d)(2) . . .

An S-signature is a signature inserted between forward slash marks, but not a handwritten signature as defined by § 1.4(d)(1). An S-signature includes any signature made by electronic or mechanical means, and any other mode of making or applying a signature not covered by a handwritten signature of § 1.4(d)(1). Correspondence being filed in the Office in paper, by facsimile transmission as provided in § 1.6(d), or via the Office electronic filing system as an attachment as provided in § 1.6(a)(4), for a patent application, patent, or a reexamination proceeding may be S-signature signed instead of being personally signed (i.e., with a handwritten signature) as provided for in paragraph (d)(1) of this section. The requirements for an S-signature under this paragraph (d)(2) of this section are as follows.

(3) Forms. . . .

No changes to certification statements on the Office forms (e.g., oath or declaration forms, terminal disclaimer forms, petition forms, and nonpublication request form) may be made. The existing text of a form, other than a certification statement, may be modified, deleted, or added to, if all text identifying the form as an Office form is removed. The presentation to the Office (whether by signing, filing, submitting, or later advocating) of any Office form with text identifying the form as an Office form by a party, whether a practitioner or non-practitioner, constitutes a certification under § 10.18(b) of this chapter that the existing text and any certification statements on the form have not been altered other than permitted by EFS-Web customization.

(4) * * *
(ii) Certifications as to the signature:
(A) Of another: A person submitting a document signed by another under paragraph (d)(2) of this section is obligated to have a reasonable basis to believe that the person whose signature is present on the document was actually inserted by that person, and should retain evidence of authenticity of the signature.
(B) Self certification: The person inserting a signature under paragraph (d)(2) of this section in a document submitted to the Office certifies that the inserted signature appearing in the document is his or her own signature.

Section 1.6(g) has been added to provide a new procedure for establishing that national stage correspondence, national stage filings, or follow-on correspondence required by § 1.495(b), which had been submitted via EFS was, in fact, received by the Office in the event that the Office has no evidence of receipt. Where the international application was filed with the United States Receiving Office as the competent receiving Office, the copy of the international application referred to in § 1.495(b) is not required. Payment of the basic national fee will indicate applicant’s intention to enter the national stage and will provide a U.S. correspondence address in most instances. Applicants cannot pay the basic national fee with a surcharge after the thirty-month deadline. Failure to pay the basic national fee within thirty months from the priority date will result in abandonment of the application. The time for payment of the basic fee is not extendable.

Section 1.8(a)(1)(i) is being amended by adding new paragraph (C) to permit certain correspondence, excluding correspondence not entitled to a certificate of mailing or transmission or not permitted to be electronically transmitted, to be treated as being timely received on the local date at the location where submitted if filed with a certificate of transmission via the EFS-Web.

Users should place the certificate of transmission on the correspondence (e.g., transmittal letter) submitted under EFS-Web in a similar manner as they would for correspondence submitted by facsimile transmission. For EFS-Web submissions, applicants are encouraged to use the acknowledgment receipt generated by EFS-Web, if available, as part of the evidence to support the statement required by § 1.8(b)(3).

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Love Named U.S. Deputy Commissioner for Patent Examination Policy

John J. Love has been named deputy commissioner for patent examination policy for the United States Patent and Trademark Office (USPTO). He is responsible for changes in patent practice, rules of practice and procedures, examining priorities, and classification of technological arts. He leads the operations of the Patent Legal Administration, Patent Cooperation Treaty (PCT) Legal Administration, and the Office of Petitions.

Previously, Mr. Love worked on establishing patent examination policy for business methods and computer-related inventions.
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I/P Updates Going Canadian

My colleagues and I will be speaking on U.S. patent prosecution at the Intellectual Property Institute of Canada on the following dates:

Montreal: April 16
Ottawa: April 17
Toronto: April 18
Vancouver: April 19

Stay tuned for further details!
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NDGA: Genericness of "Nite Lites" for Landscape Lighting Is a Factual Issue

In Nightlight Systems, Inc. v. Nitelites Franchise Systems (Order dated January 4, 2007) United States District Judge Pannell of the Northern District of Georgia denying defendants’ motion for summary judgment as to the generic nature of the term “nite lites.” Thomas, Kayden's own Harold Marquis represented the successful plaintiff on the defendant's motion.

NLFS had an incontestable registration covering a composite mark consisting of the term “nite lites” and a three pine tree design. The plaintiffs claimed that the term “nite lites” alone is generic as applied to landscape lighting. The court initially determined that the presumption of validity afforded federal registrations extended to the term “nite lites” alone:

The court has considered NLFS’s composite mark and concludes that the term “nite lites” is the most salient feature of the logo. Because the term “nite lites” is the most salient feature of the mark, it is entitled to the presumption of validity. The plaintiffs, therefore, bear the burden of overcoming the presumption that the term “nite lites” is not generic. This
presumption of validity, however, is rebuttable. See Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 405 (Fed. Cir. 2002). “Its only function is to incite [evidence of invalidity], and when the function has been performed the presumption drops out of the case.” Door Systems, Inc. v. Pro-Line Door Systems, Inc., 83 F.3d 169, 172 (7th Cir. 1996).
In support of their claim that the term “nite lites” is generic, the plaintiffs produced evidence that 20 landscape lighting businesses throughout the nation use some form of the term “night lights” in their business name. However, as noted by the court, "Use of the term in a tradename, however, is not necessarily a generic use of the term."

The plaintiffs also produced evidence that they conducted a Google search for the term “night lights” and “night lighting” and the search revealed 198 generic uses of the term. This evidence weighs in favor of a finding that the term “nite lites” is generic regardless of whether there are 198 generic uses or 100 as the defendants contend.

In addition to these business names and the Google search, the plaintiffs presented evidence that Pergantis, the original owner of the NITE LITES & DESIGN trademark, was quoted using the term “night lighting” generically in one article. A biography of Pergantis also uses the term “night lighting” generically stating, “About 80 percent of Pergantis’ work involves night lighting.” Again, this evidence weighs in favor of a finding that the term “nite lites” is generic.

Finally, in Gates’ affidavit, Gates testified that he has seen several advertisements and articles using the terms “nightlights” and nightlighting” generically for landscape lighting. The court notes, however, that Gates only located these articles and advertisements after his deposition, and the articles were not attached to his affidavit. This statement, therefore, weighs only weakly in favor of a finding of genericness.

The defendants, on the other hand, presented evidence that dictionaries define the phonetic equivalent of “nite lite,” “nightlight,” as a “small, dim light kept burning all night, as in the halls of rooming houses;” “a light (as a candle or small bulb) that burns in a bedroom at night (as for children or invalids)”; and “a small, dim light left on all night.” Webster’s New Twentieth Century Dictionary (2d ed. 1969); WordNet Dictionary 2.0 (2003); American Heritage Dictionary of the English Language (4th ed. 2000). The defendants point out that none of these definitions specifically refer to landscape lighting or landscape lighting services. While not dispositive, “[t]he dictionary definition of the word is an appropriate and relevant indication of the ordinary significance and meaning of the words to the public.” American Heritage Life Insurance, 494 F.2d at 11 n. 5.

In addition to the dictionary definition of the term “nite lites” or its phonetic equivalent, “night lights,” the defendants produced evidence that NSI does not use the term generically. Instead, NSI describes itself as “a provider of outdoor architectural and landscape lighting systems,” a “lighting consultant,” or a “landscape contractor.” Similarly, NSI has never
referred to any of its products or services as a “night light” or “nightlighting.”

Like NSI, the defendants produced evidence that none of NSI’s suppliers identify any of their products as a “night light” or a “night light cable.” In fact, Gates testified that he is not aware of any manufacturer of exterior lighting that calls its product “night lighting” or a “night light.” Gates also testified that he has never seen a TV story or radio program refer to outdoor landscape lighting as a “night light” or “night lighting.”

In addition to the dictionary definition and Gates’ admissions, the defendants presented survey evidence in support of their claim. As noted above, the defendants hired Kenneth Hollander to conduct a survey to determine whether the term “nite lites” is a generic designation for systems that provide lowvoltage nighttime illumination on the exteriors of upscale residences, including both the installation of lights and fixtures
and the lights and fixtures themselves. Hollander concluded that
consumers do not use the term “nite lites” in any of its variant
spellings to describe a system of low-voltage outdoor illumination
of trees and houses. NSI, on the other hand, did not conduct its
own survey.

Based upon the facts, Judge Panell concluded:

Whether a term is generic is a question of fact. 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 12:12 (4th ed. 2006). Although it is a close question, the court concludes that the plaintiffs have presented evidence
sufficient to overcome the presumption that the term “nite lites” is not generic. The plaintiffs evidence is sufficient to demonstrate that a genuine issue of material fact exists as to whether the public perceives the term “nite lites” primarily as a generic name for landscape lighting or as a trademark associated with the defendants. Accordingly, the court denies the defendants’ motion for summary judgment as to the generic nature of the term “nite lites.”
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Prior Analogous Use Leads to Trademark Cancellation

In L. & J.G. Stickley, Inc. v. Cosser, Cancellation No. 92040202 (January 11, 2007), the U.S. Trademark Trial and Appeal Board granted the petition to cancel Registration Nos. 2,028,089 and 2,182,183 (below) for furniture polish and furniture on the ground of likelihood of confusion over Stickley's use "analogous to trademark use" of ALS IK KAN for the same goods.

According to the opinion by Administrative Trademark Judge Drost:

The question then becomes whether these uses amount to trade name use or use analogous to trademark use. Certainly, "a trade name lacking any independent trademark or service mark significance may bar registration of a trademark or service mark that is confusingly similar to that trade name." Martahus, 27 USPQ2d at 1850. Furthermore, it "is well settled that one may ground opposition to an application on the prior use of a term in a manner analogous to service mark or trademark use. T.A.B. Systems v. PacTel Teletrac, 77 F.3d 1372, 37 USPQ2d 1879, 1991 (Fed. Cir. 1996).

The cases on analogous use have not required that the opposer proffer survey evidence or other direct evidence of the consuming public's identification of the target word or phrase with the opposer as the source of a given product or service. Instead, the fact finder may infer the fact of identification on the basis of indirect evidence regarding the opposer's use of the word or phrase in advertising brochures, catalogs, newspaper ads, and articles in newspapers and trade publications.

T.A.B. Systems, 37 USPQ2d at 1881.

The evidence concerning analogous use includes petitioner's use of the mark on a display in its showroom and its use of the phrase ALS IK KAN in its 1977 catalog. The . . . mark [also] appeared in its showroom display along with three other marks under the caption "The Pride of Craftsmanship." While the actual display was not available, petitioner's principal described the display as follows: "Well, there was a framed copy of the back page of this book showing the four brands, the Stickley of Fayetteville, the paper label, the Leopold Stickley original, the hand clamp showing Stickley of Fayetteville, and the Gustav mark Als ik kan, which is the joiner's compass with the Als ik kan in the center." Audi dep. at 69. Mr. Cathers, petitioner's historian, and Mr. Noreault, respondent's partner, all were aware of the display. As indicated, the display was in petitioner's showroom. Before the 1980's, there was only one Stickley showroom. Audi dep. at 71. Therefore, the mark would have been visible to all the consumers seeking to buy petitioner's furniture and furniture polish who visited petitioner's only showroom in the 1970's. The CCPA "has recognized that a party may rely upon advertising and promotional use of a term or expression to defeat a right of registration asserted by another who has made subsequent trademark use of that term or expression on the same or similar goods." Miller Brewing v. Oland's Breweries, 192 USPQ at 268 n.7. The public upon seeing the mark would have understood that the term ALS IK KAN and the woodworker's compass were associated with petitioner.

By 1977, petitioner's catalog included the term ALS IK KAN prominently identified as one of its trademarks. Similar uses of the phrase ALS IK KAN also appeared in the 1980 and 1983 catalogs. Stipulated Exhibits 13 and 14. The catalogs show petitioner's prominent use of the phrase ALS IK KAN in a manner that associates the term with petitioner's furniture and furniture polish. This use reinforces the association that members of the public would have drawn between petitioner and the phrase ALS IK KAN.

Thus, we find that petitioner has established by a preponderance of the evidence that it made use analogous to trademark use of the phrase ALS IK KAN and the woodworker's compass in association with its furniture and furniture polish and that this use was established at least by the end of 1977 when its 1977 catalog was issued. . . .

Although we have found that petitioner has priority, which is the first requirement for the ground of likelihood of confusion, before we go on to the second prong of this ground, the issue of likelihood of confusion, we will address other grounds that relate to respondent's use of his mark, namely, the grounds of fraud and abandonment. . . .

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TTAB Announces Policy on Non-Precedential Opinions

On January 23, 2007 the U.S. Trademark Trial and Appeal Board announce that it is changing its policy with respect to the citation of opinions not designated as precedential as folows:
  • The TTAB will continue its current practice of designating all final decisions as either precedential or not precedential. Unless specifically designated as precedential, an order on a motion should be considered not precedential.
  • The TTAB will continue its practice of considering precedential decisions as binding upon the TTAB. A decision designated as not precedential is not binding upon the TTAB butmay be cited for whatever persuasive value it might have.
  • Citation to all TTAB decisions should be to the United States Patent Quarterly, if the decision appears therein; otherwise, to a USPTO public electronic database. If a non-precedential decision does not appear in theUnited States Patent Quarterly or the USPTO's public electronic databases,the citing party should append a copy of the decision to the motion orbrief in which the decision is cited.
  • Decisions of other tribunals may be cited to the extent allowed and forthe purposes permitted by the tribunal that issued the decision.

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Counterfeit Chic?

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Archived updates for Tuesday, January 23, 2007

Interference Request Waives Sovereign Immunity

In VAS-CATH, Inc. v. Curators of the University of Missouri, et al. the Federal Circuit held that the Eleventh Amendment does not shield the University from appeal of the USPTO's interference decision in favor of the University under 35 USC §146 to change the outcometo the United States District Court for the Western District of Missouri. "By requesting and participating in the interference proceeding in the PTO, the University waived its constitutional immunity not only in that proceeding but also in the appeal taken by the losing party. Accordingly, the dismissal of the appeal is reversed."
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CAFC Proposes Electronic Filing

The United States Court of Appeals for the Federal Circuit has proposed to amend its rules to require the filing of a digital version of every brief and appendix filed by a party represented by counsel, unless counsel certifies that submission of a brief or appendix in digital format is not practical or would constitute hardship. The requirements for the filing of paper copies of the briefs and appendices would continue unchanged. Comments must be received by the close of business on February 16, 2007.

Among other things, the new rules require that a digital version of each brief and appendix required under this rule must be furnished to the court no later than five business days after the paper version is filed. The digital versions must be furnished to the court over the Internet following the detailed instructions appearing on the court's web page.The paper version shall be considered the "official" version for purposes of compliance with the rules.

On the quirky side, the new rules require each party submitting a digital version to certify that the document has been scanned for viruses and that no virus has been detected. It is encouraged, but not required, that the PDF documents be saved with commenting enabled. Only if an original word processing file or redacted copy thereof is not available may a scanned PDF image be included in a digital version of a filed brief or appendix.
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Mislabelled Dietary Supplement Loses Trademark Priority

In CreAgri, inc. v. USANA Health Sciences, Inc. (January 16, 2007) the Ninth Circuit Court of Appeals denied trademark priortiy where an earlier user of the mark that failed to comply with federal labelling requirements.

In the spring of 2001, Appellant CreAgri, Inc. ("CreAgri") began selling Olivenol, a dietary supplement containing an apparently beneficial antioxidant found in olives called hydroxytyrosol. More than a year after CreAgri began selling Olivenol, USANA Health Sciences, Inc. ("USANA") filed an intent to use application with the Patent and Trademark Office ("PTO") asserting that it intended to begin selling a series of vitamins, minerals, and nutritional supplements containing an ingredient called Olivol, which ike Olivenol, is an olive extract containing apparently beneficial polyphenols. USANA began selling these products in August 2002, the PTO granted USANA's application, and "Olivol" is now listed on the principal register with a priority date of June 18, 2002.

According to the opinion by Circuit Judge Hawkins:

It has long been the policy of the PTO's Trademark Trial and Appeal Board that use in commerce only creates trademark rights when the use is lawful. [citations omitted] At least one circuit has adopted and applied this rule. See United Phosphorus, Ltd. v. Midland Fumigant, Inc., 205 F.3d 1219, 1225 (10th Cir. 2000). A question of first impression in this circuit, we also agree with the PTO's policy and hold that only lawful use in commerce can give rise to trademark priority.

The rationale for this rule is twofold. First, as a logical matter, to hold otherwise would be to put the government in the "anomalous position" of extending the benefits of trademark protection to a seller based upon actions the seller took in violation of that government's own laws. See In re Stellar, 159 U.S.P.Q. at 51. It is doubtful that the trademark statute- passed pursuant to Congress's power under the Commerce Clause-"was . . . intended to recognize . . . shipments in commerce in contravention of other regulatory acts promulgated [by Congress] under [that same constitutional provision]." Id. Second, as a policy matter, to give trademark priority to a seller who rushes to market without taking care to carefully comply with the relevant regulations would be to reward the hasty at the expense of the diligent.

Here, it is undisputed that, at all times prior to USANA's priority date, Olivenol's labels were not in compliance with the labeling requirements of 21 C.F.R. § 101.9(g)(4)(i) and, thus, Olivenol was being sold in violation of 21
U.S.C. §§ 331(a), 343(a) (prohibiting sale of misbranded food as determined by reference to the relevant regulations). By CreAgri's own admission, each tablet sold under the Olivenol name before June 18, 2002 contained, at most, 3mg of hydroxytyrosol, while Olivenol's label claimed that each tablet contained either
25mg or 5mg of this nutrient. 21 C.F.R. § 101.9(g)(4)(i), however, requires that the actual amount of a nutrient added to a product be "at least equal to the value for that nutrient declared on the label." Because the actual amount of hydroxytyrosol (at most 3mg) was less than the values for hydroxytyrosol declared on Olivenol's labels (25mg and 5mg), CreAgri's product was, at all relevant times, in violation of 21 C.F.R. § 101.9(g)(4)(i).

CreAgri seeks to avoid the consequences of its noncompliance in three ways: first, by arguing that the nexus between its labeling violation and its use of the Olivenol mark is too attenuated to justify depriving "Olivenol" of trademark protection; second, by contending that it was technologically infeasible to accurately measure the content of hydroxytyrosol when Olivenol was mislabeled and that, because the regulations provide for an exemption in such circumstances, sale of Olivenol was not actually unlawful; and third, by asserting that its violation was not material, citing General Mills, Inc. v. Health Valley Foods, 24 U.S.P.Q.2d 1270, 1274 (T.T.A.B. 1992). We are not
persuaded by these arguments. . . .

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THEATL Descriptive for Atlanta Publications

In In re Cox Enterprises, Inc. , Serial No. 76591278 (January 12, 2007), the U.S. Trademark Trial and Appeal Board affirmed that the mark "THEATL" was merely descriptive for magazines, a weekly newspaper, and a section of a newspaper:

As described in applicant's identification of goods, applicant's
publications feature, among other things, news and information "of interest to residents of and tourists and visitors to Atlanta, Georgia." Thus, at least one class of relevant purchasers for applicant's publications are residents of Atlanta and visitors to the Atlanta area, and we consider whether the mark is descriptive from the perspective of those consumers. See, e.g., In re Omaha National Corporation, supra (the descriptive meaning of FIRSTIER in the banking field would be understood at least by applicant's corporate customers, if not its individual customers).

The website evidence submitted by the examining attorney
shows, and applicant does not appear to dispute, that the term
THE ATL would be recognized by Atlanta residents and visitors to the city as a nickname for Atlanta. . . .It is clear from the evidence that THE ATL would be understood by the intended readers of applicant's publications as a nickname for the city of Atlanta. We also note that there is no evidence of record that THE ATL has another meaning or would be perceived as anything other than a reference to Atlanta.

Furthermore, the term THE ATL describes a significant feature or characteristic of applicant's publications. As identified, applicant's publications will feature, at least in part, news, activities, events and attractions "of interest to residents of and tourists and visitors to Atlanta, Georgia." Thus, when viewed in the context of applicant's goods, THE ATL would immediately and directly inform purchasers about the subject matter of
applicant's goods, namely news and information about Atlanta . . . .

Contrary to applicant's apparent contention, the fact that there is no evidence of use by others of THEATL as a single term does not compel a finding that the mark is not descriptive. It is not necessary that the evidence show use by others in the exact manner in which it is displayed as a mark. See In re SPX Corp., 63 USPQ2d 1592 (TTAB 2002). The point is that the evidence in this case shows use of the very combination of terms applicant is seeking to register. . . .

In view of the foregoing, we find that THEATL is the equivalent of THE ATL, a recognized nickname for Atlanta, and that the mark is merely descriptive of the subject matter of applicant's publications that feature news and information of interest to residents of and tourists and visitors to Atlanta.

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Archived updates for Monday, January 22, 2007

Fun with laser pointers?

What is claimed is:

1. A method of inducing aerobic exercise in an unrestrained cat comprising the steps of:
(a) directing an intense coherent beam of invisible light produced by a hand-held laser apparatus to produce a bright highly-focused pattern of light at the intersection of the beam and an opaque surface, said pattern being of visual interest to a cat; and
(b) selectively redirecting said beam out of the cat's immediate reach to induce said cat to run and chase said beam and pattern of light around an exercise area.
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"About 1.5" Weight Ratio Construed by Extrinsic Statistical Evidence and Reissue to Between 1:3.6 and 1:7.1

In Ortho-McNeil Pharmaceutical, Inc. v. Caraco Pharmaceutical Laboratories, Ltd. (January 19, 2007), the U.S. Court of Appeals for the Federal Circuit construed the numerical limits of a claim requiring a "tramadol . . . to acetaminophen . . . weight ratio of about 1:5." According to the opinion by Chief Judge McKinney, sitting by designation from the U.S. District Court for the Southern District of Indianna:
This court has looked at the meaning of the term "about," and similar qualifying words or phrases, in other cases and has developed an approach to the interpretation of such terms:

[T]he word "about" does not have a universal meaning in patent claims, . . . the meaning depends upon the technological facts of the particular case.
* * *
The use of the word "about," avoids a strict numerical boundary to the specified parameter. Its range must be interpreted in its technological and stylistic context. We thus consider how the term . . . was used in the patent specification, the prosecution history, and other claims. It is appropriate to consider the effects of varying that parameter, for the inventor’s intended
meaning is relevant. Extrinsic evidence of meaning and usage in the art may be helpful in determining the criticality of the parameter . . . .

Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1217 (Fed. Cir. 1995) (citations omitted). See also Modine Mfg. Co. v. United States Int’l Trade Comm’n, 75 F.3d 1545, 1554 (Fed. Cir. 1996) (stating that "the usage [of the term ‘about’] can usually be understood in light of the technology embodied by the invention"); Conopco, Inc. v. May Dep’t Stores Co., 46 F.3d 1556 (Fed. Cir. 1994) (discussing the criticality of the claimed ratio to the invention and whether or not one of ordinary skill in the art would have read the modifier "about" expansively in light of the intrinsic evidence).

We must focus, then, on the criticality of the 1:5 ratio to the invention in claim 6 of the ’691 patent. The intrinsic evidence points to a meaning for the term "about 1:5" that is narrow because the 1:5 weight ratio, along with the 1:1 weight ratio, is distinctly claimed and distinguished from other broader weight ratio ranges in the patent. There are fifteen claims in the ’691 patent, all of which use the term "about" to modify the weight ratio or weight ratio ranges of tramadol to acetaminophen.4 ’691 Patent, cols.11-12. There are two claims, claim 4 and disputed claim 6, that claim a single weight ratio; the other claims distinctly point out ranges of weight ratios. For example, independent claim 1 reads: "A pharmaceutical composition comprising a tramadol material and acetaminophen, wherein the ratio of the tramadol material to acetaminophen is a weight ratio from about 1:1 to about 1:1600." Id. col.11 ll.19-22. This leads to a conclusion that one of ordinary skill in the art would understand the inventors intended a range when they claimed one and something more precise when they did not. The criticality of the "about 1:5" parameter to the claimed invention is also supported by other intrinsic evidence. As noted, in the specification, the inventors disclose the following:

The [acetaminophen] and the tramadol material are generally present in a weight ratio of tramadol material to [acetaminophen] from about 1:1 to 1:1600. Certain ratios result in a composition which exhibits synergistic analgesic effects. For example, in a composition comprising a tramadol material and [acetaminophen], the ratio of tramadol material: [acetaminophen] is preferably from about 1:5 to 1:1600; and more preferably, from about 1:19 to 1:800.

The most preferred ratios are from about 1:19 to 1:50. Compositions of tramadol material and [acetaminophen] within these weight ratios have been shown to exhibit synergistic analgesic effects. In addition, the particular compositions wherein the ratio of the components are [sic] about 1:1 and about 1:5 are encompassed by the present invention. Id. col.3 l.63 to col.4 l.8.
These paragraphs suggest that the qualifier "about" is narrow because to find otherwise would allow the scope of the more specifically identified ratio, 1:5, to encompass a range of ratios that could potentially render meaningless another claim’s limitation, namely the 1:1 limitation.

Furthermore, the data points from the experiments described in the specification support a conclusion that the more specifically identified ratio of 1:5 was meant to encompass compositions very close to that ratio. The experiments disclosed in the specification show data points for ratios of tramadol to acetaminophen in the lower ratio quadrant of 1:1, 1:3, 1:5, 1:5.7, and 1:15. ’691 Patent, col.7 l.49 to col.8 l.68; id. Fig. 1 & Table 1. Yet, the patentees chose to specifically claim ratios of 1:1 and 1:5. If the data suggested to the inventors that a range of ratios in this lower ratio quadrant was desirable, they could easily have claimed a ratio range of "about 1:1 to about 1:5," or even a ratio range of "about 1:3 to about 1:5," but they did not. Instead, they chose a specific data point for claim 6 of precisely 1:5. Moreover, the identification of the 1:5 ratio in both claim 6 and the specification is especially important when the only other specifically identified ratio is close to it, 1:1, and the other claims point to a broad range of ratios. This dichotomy between the specific ratio of 1:5 and the broader ratio ranges of the other claims points to a narrow scope for the "about 1:5" limitation.

As discussed above, the district court relied in part upon Ortho’s expert evidence to arrive at its claim construction. Ortho’s expert, Dr. Stanski, noted that the data in the patent shows a synergistic analgesic effect for many ratios tested. In addition, he noted that the patent discloses statistical variability in the measured responses for each ratio. Dr. Stanski stated that "[b]ased on that statistical variability and [his] expertise, [he] can use statistical analyses to determine confidence bounds for the data in the patent, and [is] thus able to determine an upper bound and lower bound for the 1:5 weight ratio." Dr. Stanski concluded that "the ratio of ‘about 1:5’ would not be statistically different from a ratio up to and including 1:7.1 and a ratio down to and including 1:3.6." In other words, Dr. Stanski opined that "about 1:5" means "about 1:5, which includes a ratio up to and including 1:7.1."

Considering the intrinsic and extrinsic evidence in this case, we see no error in the district court’s construction of the term "about 1:5" to mean "approximately 1:5, encompassing a range of ratios no greater than 1:3.6 to 1:7.1."
Ortho had also applied for reissue of the ’691 patent. Other than being rewritten in independent form, the claim asserted here, claim 6, survived reissue unchanged. Likewise, the relevant portions of the specification remain unchanged. Designated Circuit Judge McKinney went on to explain that the criticality of the ration, and cancelling of other claims in the reissue application prevented any broader claim construction under the Doctrine of Equivalents:

As discussed above in connection with claim construction, the 1:5 parameter was critical to the invention. Moreover, the ’691 patent points out the 95% confidence levels and makes them relevant to determining the scope of the invention. An infringement analysis that stretches the bounds of the "about 1:5" limitation beyond those confidence intervals directly conflicts with the patent’s express claim to both the 1:1 and the 1:5 ratios. The patent specification distinctly identifies the 1:5 ratio versus all the other ratios or ratio ranges. Under this circumstance, whether or not the 1:5 ratio’s analgesic response is statistically different from that of other ratios is of no moment. The intrinsic evidence points to the desirability, and thus the criticality, of the 1:5 ratio versus other ratios.

Also relevant is the prosecution history of the ’691 patent and the ’221 reissue patent, described above. Ortho admitted that it claimed more than it was entitled to claim in the ’691 patent when, in its reissue application, it cancelled the broader "comprising" claims, except for claim 6. In sum, having so
distinctly claimed the "about 1:5" ratio, Ortho cannot now argue that the parameter is broad enough to encompass, through the doctrine of equivalents, ratios outside of the confidence intervals expressly identified in the patent.

We agree with the district court that to do so would eviscerate the limitation. The intrinsic evidence in this case points to the criticality of the "about 1:5" parameter, which necessitates a narrow claim construction and range of equivalents that does not encompass Caraco’s product. Similarly, we do not find Ortho’s other arguments persuasive.

. . . For these reasons, we conclude that the district court properly granted summary judgment of non-infringement in favor of defendant, Caraco Pharmaceutical Laboratories, Ltd., and against plaintiff, Ortho-McNeil Pharmaceutical, Inc.

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Archived updates for Sunday, January 21, 2007

IP Cost Management at the AIPLA Mid-Winter Institute

Domenic Leo, DataCert's vice president of intellectual property business development, will lead a panel discussion centered on corporate intellectual property (IP) cost management at the American Intellectual Property Law Association's (AIPLA) annual Mid-Winter Institute. AIPLA's Mid-Winter Institute will be held in New Orleans on January 24-27, 2007.

The session, entitled "Corporate IP Cost Management," will present an educational discussion on both high-level and hands-on approaches to controlling corporate IP spend. Panelists will discuss how to capture and analyze legal spend, how to project portfolio costs, the latest IP billing standards and global filing strategies. Speaking at the session will be Robert Silverman of Concert Pharmaceuticals, William Heinze of Thomas, Kayden, Horstemeyer & Risley, LLP, Tim Guffey of Procter & Gamble and T. David Reed of TDR Patents.

The session, scheduled for Thursday, January 25 at 4 p.m. CT, will commence with opening remarks from Aaron A. Weiss, AIPLA's chair of licensing and management of IP assets committee.
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I'm Baaack! To Basics, That Is . . .

Like white on rice, like a duck on a june-bug, like a one-eyed cat in a fish market, "I/P Updates" has returned from hiatus with even more news and information for the sophisticated intellectual property practitioner. In this issue, along with the usual reports, I'm going back to basics with some of the best of the I/P Updates news service archives.

And we're also making some improvements to this cocky little news service.

First, if you haven't already become a client or made a successful referral, then now's the time. With a current circulation of over 18,000 intellectual property enthusiasts at law firms, corporations, service providers, product vendors, universities, media outlets, governments, and policy institutions around the world, I've had to start trimming the subscriber base in order to control costs. New subscribers and sponsors are still welcome, but this isn't public radio you know; so don't make me start a pledge drive. Act now to keep from losing your subscription!

Second, I'm trying to cover some new areas in an attempt to sharpen the focus of the articles, and my practice. Along these lines, I'll be looking at decisions of the U.S. District Courts in Georgia and the International Trade Commission in Washington DC. If there are any other areas of intellectual property that you would like to see covered, or at least better-served, then drop me a line. And remember, if you like this news service, then you'll love the way that we practice law.

Finally, I would to again thank all of you readers who have provided such generous feedback with your kind words of encouragement. They are much appreciated, so let's

Keep in Touch,


William F. Heinze*
Thomas, Kayden, Horstemeyer & Risley, L.L.P.
100 Galleria Parkway, N.W., Suite 1750
Atlanta, GA 30339-5948 (USA)

Tel.: (770) 738-2382
Fax: (770) 951-0933
Mobile: (404) 729-0729
E-Mail: (business)
E-Mail: (personal)
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*Admitted to practice in the Commonwealth of Virginia. Not admitted in Georgia.
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Proactive and Preventative I/P Lawyering

In "The New Marketing Frontier" (Law Technology News, April 2005), Danielle Rodier explains why the best attorneys don't just sit around, and wait for an existing client to pick up the phone to ask for help. Instead, they take advantage of innovative technology to proactively protect clients from crises:

Bill Heinze, an intellectual property attorney with Atlanta-based Thomas Kayden Horstemeyer & Risley, uses technology to present himself almost as an oracle who can predict and fend off clients' problems before they even begin to fester. Heinze, of counsel to the 28-lawyer firm, provides clients with free patent and trademark watch services. He even e-mails alerts about new filings their competitors have entered with the U.S. Patent and Trademark Office.

"I use the free U.S. patent database at and U.S. trademark database at," says Heinze. "I develop a search strategy 'watch list' using the names of the client's key competitors and the types of products that they sell." When a client has an intellectual property problem, the opposing party is added to the list, he explains.

Heinze's secretary runs the searches, and prints out paper summaries. After Heinze reviews the documents, his secretary sends electronic copies to key business and technical managers, whose names he stores in Microsoft Outlook distribution lists. "I have already given these business leaders a free seminar on how to spot intellectual property problems, so they can quickly spot the ones that might affect current and/or future projects."

"Although various paid services offer additional information (such as unregistered 'common law' trademarks), and we use those sources when we need them, I like to stick with the free stuff when screening these monthly watch services," says Heinze. "The watch service helps me spot IP problems for clients early in the product-development process, while they're still relatively inexpensive to solve. I streamline searches for particular clients and try to find information that will affect their business," says Heinze. "I started doing this as a way to do preventative lawyering, to help clients avoid some of the last-minute crises I've seen them go through. It seems to work."

Once Heinze alerts a client to the potential for trouble on the horizon, he says the client is generally happy to pay for extra services that will dispel future litigation. Clients expect their lawyers to stay current on the latest legal trends, Heinze says, so attorneys must know how to get that information and disseminate it to clients through the most cost-effective means. The wealth of free information on the Internet makes it cheap to meet this need. But, Heinze cautions, the process can be time-consuming and tough to learn. Most lawyers are turned off because they can't bill for it, he says. But that's false pride, he suggests.

Unlike some firms, Heinze does not charge his clients for the monitoring services. "I'm willing to do this free educational work if it brings the client up to speed and lets me provide a better service," he says.

In marketing the watch service, Heinze has been hit with mixed responses. While Heinez's more sophisticated clients have appreciated that, as an outside lawyer, he has taken an active interest in their businesses, other clients shy away from the extra information.

"Some clients would rather not know about looming IP problems, because they say 'If we know about this we might be looking at increased damages for willful infringement.' But they might have a false sense of security. They can be put on notice simply by a competitor appropriately marking a product," explains Heinze, who also authors the blog, "I/P Updates," a member of ALM's Blog Network.

"It can be a tough balance for a client to decide how much they want to be involved in this. Some might say the risk is low, that a suit might never be filed. But once a suit is filed, they're looking at a huge headache."

Of course, this approach won't neccesarily be successful in every technological area. For example, some technologies might arguably change so quickly that the 18-month patent publication blackout period makes most patent research hopelessly obsolete. Some practitioners feel that the availability of enhanced damages for willful patent infringement in the U.S. makes monitoring a competitor's patent claims just too risky. However, for clients who want to actively monitor and proactively manage their legal risks, this approach can provide a valuable insurance policy againt the hidden costs of resolving intellectual property disputes.
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What to Do About Competitors' I/P

According to a November 22, 2004 article by Keith Zullow and Erica Kuo, here are the "Top Ten Things to Do About Your Competitors' Intellectual Property":

    1. Monitor Your Competitors' Patent Applications Before They Issue
    2. Monitor the Progress of Your Competitors' Patent Applications
    3. Block Your Competitors' Patents
    4. Challenge Your Competitors' Patents Before Your Competitor Can Take You to Court
    5. Think About Approaching Your Competition for a License
    6. Monitor Your Competitors' Trademark Filings
    7. Learn About Your Competitors' Global Marketing Strategy
    8. Challenge Marks That Hit Too Close Before Your Competitors Gain the Advantage
    9. Monitor Your Competitors' IP Licensing Activity in Foreign Countries
    10. Know That Your Competition is Checking Up on You

And, if your intellectual property counsel isn't already doing most of this at no charge, then please feel to call me to discuss a client-development plan.

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Basic Information About Trademarks

A trademark is a word, phrase, symbol or design, or or other device which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are used to refer to both trademarks and service marks, whether they are word marks or other types of marks. A trademark is different from a copyright or a patent in that copyright protects an original artistic or literary work while patents protect an invention.

Trademark rights arise from either (1) actual use of the mark in connection with the offering or sale of goods or services in commerce, or (2) the filing of a proper application to register a mark in the U.S. Patent and Trademark Office (U.S. PTO, or PTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress. Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide.

There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application in the PTO has the ultimate right to register that mark. The PTO's authority is limited to determining the right to register. The right to use a mark can be more complicated to determine. This is particularly true when two parties have begun use of the same or similar marks without knowledge of one another and neither has a federal registration. Only a court can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement. It should be noted that a federal registration can provide significant advantages to a party involved in a court proceeding. The PTO cannot provide advice concerning rights in a mark. Only a private attorney can provide such advice.

Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled.

Anyone who claims rights in a mark may use the "TM" (trademark) or "SM" (service mark) designation with the mark to alert the public to the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, ®, may only be used when the mark is registered in the U.S. PTO. It is improper to use this symbol at any point before the registration issues.

Unlike the United States, many foreign countries base trademark rights on the first to obtain a registration of a trademark as opposed to the first adopt and use a trademark. Thus, where there is an interest in obtaining and protecting trademark rights oversees, we recommend seeking registration of your trademark in those foreign countries that are particularly of interest as soon as possible.

The U.S. has entered into treaties with most foreign countries that provide that an application filed outside of the U.S. within six (6) months of a corresponding U.S. Patent and Trademark Office, can be considered as if it had been filed on the same date as the U.S. application. This ability to claim priority on a U.S. application allows for the possibility that a U.S. application may be filed first and subsequently consideration may be given to the filing of any foreign applications. Where there is an interest in filing foreign applications, we recommend that the foreign applications be filed within six months of the date of the U.S. application filing date in order to make a claim of priority on the U.S. application filing date.
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Basic Information About Trademark Registration

It is not necessary to register a trademark in order to establish the exclusive right to use a protectable mark. Trademark rights can arise without registration simply by using a mark in the United States. However, these "common law" rights are usually limited to the geographic areas where the mark is used and advertised. As long as you are the first to use the mark in connection with your products, and no other person has filed an application to register the same or similar mark, you are generally entitled to exclusive use of that mark in the geographic area in which the mark has been used.

Nonetheless, registering the mark at the U.S. Patent and Trademark Office ("PTO") provides many substantive and procedural advantages. For example, a federal registration provides a presumption of validity and ownership of the mark, allows the possibility for acquiring incontestability five years after the registration has issued and, of great significance, provides constructive notice to others of your claim to ownership of the mark, thereby giving you nationwide rights even if use of the mark is confined to part of the United States. This latter point is particularly important since the mark will appear in the results of searches conducted by those who are trying to determine whether a particular mark is available for use.

Before going to the expense of filing a trademark application, we generally recommend conducting a comprehensive search to determine the mark's availability for use and registration in the U.S. The comprehensive search encompasses marks registered and pending in the PTO, state trademark registrations, and common law marks and names (marks and names that are in use but not registered). This often avoids needless expense and the inconvenience of changing a mark after the mark has been used because of the subsequent discovery of another's prior rights in the mark. The cost for such a comprehensive search and written legal opinion is approximately $800-$1,500.

Before we conduct a comprehensive search, we will generally conduct a "knockout" search of the PTO and state trademark records during an Internet screening search. This preliminary searching is designed to locate identical or virtually identical marks that would clearly preclude use and/or registration of the mark searched. If a problem mark is revealed by the knockout search, the cost of a comprehensive search and opinion will be saved. Knockout searches typically cost between about $230-300 per mark, and this cost is included in the estimate given above for a comprehensive search and opinion.

If, on the other hand, your mark has been used for a significant period of time throughout the United States without objection from others, the need for a comprehensive search may not be as great. In such cases, we could conduct only a thorough search of the PTO records to determine if the mark is available for registration. The cost for such a PTO search and legal opinion is approximately $500-$750. If you will not use the mark in the United States for a significant period of time, or if there is some question whether the mark will be used in the United States at all, you may decide to conduct only a search of the PTO records now, and later conduct a comprehensive search if and when the mark will be used in the United States.

If you should decide to register your mark, Our the fee for these services is generally around $300-700 plus a government fee of $275-$325 for each class of goods or services in the application. If the mark contains a design or stylized lettering, then we may also need to obtain a formal draftsman's drawing unless you can supply us with high quality prints or camera-ready art. A formal drawing usually costs $50-$100. Our incidental costs, such as postage, copying, and facsimile transmission will then also be added to these fees.

In order to minimize the initial cost of an application, it is possible to submit the application with the government fee for only one class. In that case, the Examining Attorney will then examine just one class of goods or services and require that balance be paid in six months or that the goods and services in any unpaid classes be canceled from the application.The cost for prosecuting the application is more difficult to estimate since it depends upon the basis for registration and what, if any, impediments to registration are raised by the Patent and Trademark Office. Nonetheless, here is a rough estimate of the costs that would likely be incurred under some of the scenarios that might arise during prosecution.

If the application is approved for publication immediately, the prosecution costs would likely be under about $500, provided that the application was not opposed following publication of the mark. If only formal or technical matters were raised by the Trademark Office, then the cost of prosecution would likely be in the range of $500-1,500. However, if a substantive refusal of registration were encountered, such as the citation of a previously registered mark or a refusal based on the descriptiveness of the mark, the fees could be considerably higher.

As a general rule, applications based on intent to use or a foreign application are more expensive to prosecute, since such an application will not mature into a registration until use of the mark has begun and a statement executed by the applicant submitting evidence of that use has been filed. Therefore, in addition to the costs involved in responding to any official actions, there are also charges associated with the filing of the evidence of use and/or any requests for extension of time which may be required. Our fees for compiling the information and materials needed to allege use and preparing the necessary document for execution by the client are usually in the range of $300-500, plus a government fee of $100 for each class of goods or services.

Although use may be alleged at any time during prosecution, if use of the mark in commerce has not begun by the time the application is in condition for acceptance, then the applicant will then have a specified time period within which to make use of the mark. The maximum amount of time available is three years from the issuance of the Notice of Allowance, measured in six-month increments. Each request for a six-month extension of time must be signed by the applicant and accompanied by the payment of a $150 government fee per class for each extension requested. Our fees for preparing and filing an extension request are usually about $260-360, plus the $150 government fee for each class of goods or services. We may also recommend filing one extra request for extension together with the evidence of use in order to preserve the applicant's right to file substitute evidence if the evidence initially filed is not accepted. Unlike the issue fees for U.S. patents, there is no separate government fee for trademark registration.

Filing requirements vary depending on the basis of the application. An application to federally register a trademark or service mark may be based on:
  • Actual use of the mark in connection with goods shippedor services rendered in the United States;
  • A bona fide intention to use the mark in connectionwith goods/services in the United States in theordinary course of business;
  • A foreign registration for the mark;
  • A foreign application for the mark, if filed within the six months preceding the U.S. filing; and/or
  • A combination of these.

An application based on actual use requires specimens showing how the mark is currently used in connection with the goods or services for which use is claimed, as well as the date of first use of the mark. An application based on intent-to-use does not require these items at the time of filing, but a registration will not issue until use of the mark has commenced and specimens and dates of use have been submitted. Under usual circumstances, if the applicant continues to have a bona fide intention to use the mark and is engaged in ongoing efforts to use the mark in commerce, an applicant may extend the period for proving use up to three years after the mark has been allowed, i.e., after the PTO has approved the application and the application has cleared the publication period. Thus, if these conditions are met, an applicant will have at least 3½ years and more likely 4-4½ years after the filing date of an intent-to-use application within which to commence use of the mark necessary to obtain registration.

An application based on a foreign registration will require a certified copy of the registration (and an English translation, if applicable, signed by the translator). An application claiming priority from a foreign application does not require a certified copy of the priority application, but the U.S. registration will not issue until either 1) the foreign registration issues and a certified copy of the registration (and English translation, if necessary) is filed with the PTO, or 2) the mark is used in the U.S. and evidence of that use is filed with the PTO. An application based on either a foreign registration or application must also contain a statement of the applicant's bona fide intention to use the mark in the United States.

Any application may be filed unsigned as long as a signed Verified Statement is filed later. A faxed copy of the signed application or Verified Statement may also be submitted, and does not need to be supplemented by the original executed application. To qualify as an appropriate signatory, the person signing must 1) have legal authority to bind the applicant or firsthand knowledge of the applicant's use or intent to use the mark; and 2) have actual or implied authority to act on behalf of the client. Failure to correct a paper that is signed by the wrong person may leave any resulting registration vulnerable to cancellation.

Preferably, the "R" in a circle ("®") notice symbol should accompany a trademark after it has been registered with the U.S. Patent and Trademark Office (USPTO). Failure to put the notice on a registered trademark can greatly reduce the possibility of recovering significant damages if it later becomes necessary to file a lawsuit against an infringer. However, the ® symbol may not be put on a mark unless it has been registered with the USPTO. Nonetheless, many people like to put a "TM" (or "SM" for service mark) next to their unregistered "common law" trademark or service mark in order to let the world know that they are claiming ownership of it. But it is not legally necessary to provide this type of notice; the use of the trademark or service mark itself is the act that confers ownership.

While we can not guarantee the legal advice by others, the following Internet websites contain additional information that may help you in discussing your intellectual property rights with a qualified attorney.

"General Information Concerning Patents" and other publications are available from the U.S. Patent Office at and

"Basic Facts About Trademarks" and other information is available from the U.S. Trademark Office at and

"Copyright Basics" and other information is available from the U.S. Copyright Office at and

"Section 337 Investigations at the U.S. International Trade Commission" is available from the U.S.I.T.C. at

"U.S. Customs and Protection of Intellectual Property Rights" is available at

"Invention Promotion Firms" are discussed by the U.S. Federal Trade Commission at

The U.S. Patent Office's U.S. Patent Database is searchable at

The European Patent Office's Worldwide Patent Database is searchable at

The U.S. Trademark Register is searchable at

The Franklin Pierce Law Center's "Intellectual Property Mall" provides a very comprehensive set of links at Various intellectual property statutes are available through Cornell University Law School's "Legal Information Institute" at and links to other intellectual property resources are available through the "FindLaw" Internet Search Engine at

The current "U.S. Patent And Trademark Office Fee Schedule" is available at

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