NEWS
Congress appropriates will be held in a special account for USPTO use, if and when Congress sets a new limit.
Te America Invents Act also makes changes to specific USPTO fees. A 15 percent surcharge now applies to general statutory and maintenance fees, and applicants can now request a prioritised examination for an additional $4,800, which will be reduced by 50 percent for small entities.
Speaking on September 8, David Kappos, director of the USPTO, said: “Significantly, as stated by leadership in both houses of Congress, this legislation enables us to access all of our fees. We intend to aggressively implement that mandate by immediately hiring new examiners, instituting new patent acceleration tools, and aggressively modernizing our IT infrastructure.”
Post-grant review
A new post-grant review system will become operational on September 16, 2012. It will only
A Galaxy of problems for Samsung and Apple
Smartphone makers Samsung and Apple are locked in an escalating patent war that has already resulted in sales injunctions and looks set to become even more bitter.
Samsung has sought a ban on the sale of Apple’s new iPhone4S in Australia and Japan, and filed suit in Italy and France claiming that the device infringes its patents.
Tese developments come just weeks aſter Apple secured court injunctions in Australia and Germany prohibiting the sale of Samsung’s
Galaxy 10.1 smartphone, as well as a judgement from a US judge finding that Samsung infringed some of Apple’s patents. But in the US case, Califronia District Judge Lucy Koh said that Apple would need to prove the validity of its patents before she would grant an injunction.
Samsung says it will continue to fight against the injunctions, but it may also be considering modifying its handsets in the affected countries to sidestep the patent concerns, as it did in a similar situation in the Netherlands. n
CJEU tells Europe to leave human embryos out of it
Stem cell research methods that involve human embryos cannot be patented under EU law, the Court of Justice of the EU (CJEU) has said.
It added that uses of human embryos are patentable when the use is diagnostic or therapeutic in nature and is usefully applied to the human embryo, but inventions based on human embryos for scientific research purposes cannot be patented.
Te CJEU issued a preliminary ruling in the Oliver Brüstle v Greenpeace on October 18.
Oliver Brüstle’s patent covers isolated and purified neural precursor cells produced from human embryonic stem cells that are used to treat neurological diseases, including Parkinson’s disease.
www.worldipreview.com
Greenpeace opposed the patent in Germany because it involves the use of human embryos. A German court invalidated the patent, but Brüstle appealed against the decision.
Before making a decision in the appeal, the German Federal Court of Justice referred several questions to the CJEU for a preliminary ruling.
Te Federal Court was unclear about how ‘human embryo’ should be interpreted as it is not defined in the Biotechnology Directive.
It also wanted the CJEU to clarify whether the patentability of scientific research involving human embryos was included in the directive’s commercial exploitation exclusion, and whether an invention is patentable if its purpose is
not to use human embryos but involves their destruction.
Te CJEU’s ruling largely confirms Advocate General Yves Bot’s March 10 opinion. Bot said that, under Brüstle’s patent, the cells being used had the capacity to evolve into complete human beings so they had to be classed as human embryos, and so should be excluded from patent protection.
Dr Christoph Ten, patent counsel for Greenpeace, said that the CJEU’s ruling protects all phases of human development from commercial exploitation and strengthens the protection of human life over economic interests.
World Intellectual Property Review November/December 2011 7
be available for patents that are involved in interferences, certain business method patents and patents that are filed under the first-to-file system.
Te USPTO’s Board of Patent Appeals and Interferences will become the Patent Trial and Appeal Board (PTAB) and the PTAB will handle cases under the new post-grant review system.
Tose looking to use the current inter partes request system will have to meet a new standard when filing a request. A requesting party now needs to show that there is a reasonable likelihood that it would successfully challenge at least one of the patent’s claims, rather than raise a substantial new question of patentability as it did before.
Te America Invents Act has also limited the issuance of claims directed to human organisms, removed failure to disclose best mode as a defence against litigation actions and limited the joinder of unrelated accused infringers during litigation actions. n
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