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Alice v CLS Bank – a view from a US perspective
Last year we noted that the US Supreme Court is to take a crack at the Alice v CLS Bank Intl case (see here). Shortly after that post we reported on a CIPA seminar “Patentable subject matter in the US” in which Seth D. Levy of Nixon Peabody gave a good overview of what’s going on with patent subject matter (35 USC §101) in the US.
Seth has subsequently provided some further thoughts on the Alice v CLS case. If you’re interested in hearing what US practitioners think of the referral, what we can expect next and how the Court might rule then please see Seth’s comments below: (more…)
Top 10 Points from Patent Developments and Case Law in the US in 2013
Following on from last year’s guest posts from Suleman Ali of Holly IP and K2 about top 10 points from UK Court Decisions and top 10 points from EPO case law in 2013 we now have Suleman’s post regarding developments in the US in 2013. This post was originally posted on the Holly IP blog and is reproduced with the permission of the author.
These points are from a talk held at CIPA on 27 November 2013 given to UK Patent Attorneys. (more…)
The unitary patent, the Spanish challenge and a costly admin error
As IPcopy covered back in June last year, Spain has launched further attacks against the unitary patent system at the CJEU. There are several bases for the complaint including breach of the principles of autonomy and the issue of delegation of powers to the European Patent Office whose acts are not subject to judicial review.
At the always entertaining Wragge & Co. annual patent seminar in December last year, the Virgin v. Zodiac case that recently passed through the UK’s Supreme Court was discussed in the context of res judicata and the end of the Unilin principles. However, this case may also illustrate the issues that can arise when the EPO gets something wrong and there’s no means for appeal.
The Supreme Court case centered on Virgin Atlantic Airways Ltd’s attempts to recover damages exceeding £49 million (!) for the infringement of a European patent that no longer existed in the form said to have been infringed.
What is particularly interesting about the Virgin/Zodiac case in the context of the unitary patent system and Spain’s challenge to that system is that it relates to a patent that should never have had effect in the UK were it not for an administrative mistake by the EPO!
IPcopy in 2013 – our top ten posts
Welcome to 2014!
An interesting year for Intellectual Property developments is before us with further progress on the unitary patent expected and the possibility that the US Supreme Court will weigh in again on the issue of patent eligibility with the recent referral of the Alice/CLS decision.
However, before all that we thought we’d take a quick look at the most popular posts on IPcopy in 2013. (more…)
European Divisional Applications – Additional Fees published by EPO
As noted earlier on IPcopy, Rule 36 EPC, which was amended in 2010 to introduce 24 month time limits for filing divisional European patent applications from a parent European patent application, is to be amended from 1 April 2014 such that the 24 month deadline rule is removed and the procedure reverts back to the pre-April 2010 arrangements. As well as the change to Rule 36 EPC, an amendment to Rule 38 was proposed to provide “for an additional fee as part of the filing fee in the case of a divisional application filed in respect of any earlier application which is itself a divisional application”.
Administrative Council decision of 13 December 2013 (here) has been published on the EPO website and, as well as detailing other fee changes due to come into effect on 1 April 2014, confirms the level of the additional fee that will be payable on 2nd and higher generation divisional applications from 1 April 2014. The full list of additional fees for divisional applications, which ranges from 210 Euros to 840 Euros, is noted below
OHIM website returns an “Error 404” message
Despite their best efforts OHIM were unable to organise a successful website launch party in the local brewery
A new OHIM website was recently released to some fanfare. According to the Alicante Newsletter: “The site has been developed in collaboration with users, who have tested its functionalities and provided valuable feedback through the development process”.
Unfortunately however it seems as though the online filing functionality was one area where the site testing may have been a little lacking. There have been some reports appearing online about technical issues (here and the 11 December entry here) and the OHIM website itself has carried a number of announcements regarding this matter. However, based on some recent experiences that we have been made aware of IPcopy wonders if the new OHIM site is currently fit for purpose? (more…)
Patentable subject matter in the US
On 20th September 2013, as part of a CIPA series of webinars, Seth D. Levy (Nixon Peabody) gave a very clear presentation on the state of play with respect to patentable subject matter cases in the US.
Before we get into the review of the presentation it is worth pointing out that although the focus of the talk was on medical diagnostic claims (“a challenging area these days in the US”), there is uncertainty whether there may be wider implications for the software and business method fields in the US.
As such, and speaking as a “software” patent attorney, the subject matter of this presentation should be of interest to all patent attorneys and other interested individuals regardless of their technical field.
The talk covered the following general areas: background to the current state of case law in the US (essentially the Supreme Court prior to Myriad Genetics); Myriad and its aftermath; USPTO Guidance; and prosecution tips. (more…)
Clause 13: copying, informed users and design trolls
Parliamentary copyright images are reproduced with the permission of Parliament
Last week in the context of Clause 13 of the Intellectual Property Bill we posted some comments on the suitability of a criminal court to hear registered design issues. I mentioned in that earlier post that there were other reasons why we thought the clause should be deleted and some more of these are discussed below.
Remember, if you feel that Clause 13 of the IP Bill should be deleted or amended to restrict its scope then you should lobby your MP. Find your MP here.
Today’s mini rant topic of discussion looks at whether the intent of the legislation has been captured in the Clause as drafted and also looks at the acts of copying and infringement. Finally there are some musings on the how the criminal provisions could be used in practice.
US Supreme Court to take a run at Alice v. CLS Bank
The US Supreme Court announced on Friday that it is to review the Alice Corp. v. CLS Bank Intl. case. The US Court of Appeal, of course, recently handed down its take on the case (see decision dated 10 May 2013 here) in which the 10 judge panel exhibited something of a split opinion.
At the recent AIPLA event in Washington Chief Judge Rader (one of the 10 judge CAFC panel on the Alice/CLS case) commented that he regarded that case as a personal failure and a failure of his institution (Court of Appeals for the Federal Circuit). Listening to other attorneys at AIPLA a number of feelings were expressed about the case including bafflement, frustration and the merest hint of “the End of Days”.
Criminal courts as a forum for design infringement
Parliamentary copyright images are reproduced with the permission of Parliament
We’ve written quite a bit about Clause 13 of the Intellectual Property Bill on IPcopy but with the IP Bill now on the verge of its second reading in the Commons the time left to change the Bill is running out. The specific clauses and their wording will be discussed in the Committee stage of the Bill which may occur before Christmas.
It would be my preference for Clause 13 to be deleted in its entirety from the Bill for a number of reasons, one of which is discussed in more detail below. The intention behind the clause is to provide stronger rights for designers which is, of course, a laudable aim. However, I question whether this clause is the correct vehicle for those improved rights. Alternatives such as extending the small claims track of the Intellectual Property Enterprise Court to hear registered design cases would also enable registered design rights holders to bring cases more cost effectively. ACID themselves appear to have had great success with mediation which is a process that could be formalised and expanded in my view to provide another option to rights holders.
However, instead we have Clause 13 which will make it a criminal offence to copy a design. In this article we’ll look a little more at the forum that such cases will be heard in.
IPcopy 