Berkheimer itself held that the question of whether certain claim limitations represent well-understood, routine, or conventional activity under Alice Step 2B is a factual issue, with Berkheimer precluding summary judgment that all of the claims at issue were not patent eligible.
To review, Aqua Products held that 35 U. In light of the Aqua Products decision, the Board will not place the burden of persuasion on a patent owner with respect to the patentability of substitute claims presented in a motion to amend.
Rather, if a patent owner files a motion to amend or has one pending and that motion meets the requirements of 35 U. Thus, for example, if the entirety of the evidence of record before the Board is in equipoise as to the unpatentability of one or more substitute claims, the Board will grant the motion to amend with respect to such claims, and the Office will issue a certificate incorporating those claims into the patent at issue.
The memo then continues by indicating that beyond that change, practice and procedure before the PTAB will not be altered. The patent owner must still meet the requirements for a motion to amend, such as indicating written support for the amendments being proposed. The memo also states that a patent owner is still to confer with the PTAB before filing a motion to amend.
The memo then sets forth that any party involved in a pending motion to amend is invited to schedule a conference call with the PTAB for their particular case in light of Aqua Products, if the party believes there is a need to do so.
The memo also indicates that the PTAB has already, or will, contact parties with motions to amend that were pending at the time Aqua Products was issued to let them know that a request for a conference call is appropriate. The memo then concludes by stating that if a patent owner wants to file a new or substitute motion to amend in a proceeding that is already past Due Date 1, the owner must contact the PTAB to arrange a conference call on that matter.
The Author John M. His patent background includes preparation and prosecution of a large number of patent applications for Fortune high-tech institutions in a wide range of technologies. John has also been active on behalf of his clients in the acquisition of patent portfolios.
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John writes frequently for various publications on developments in patent law. He also regularly appears as a guest lecturer on intellectual property at DeVry University. Prior to that, John worked as a web developer for Loyola Marymount University.
John received his J. The pages, articles and comments on IPWatchdog. Discuss this There are currently 5 Comments comments. Invention Rights December 3, First, any amendment that alters the scope of the claim will trigger intervening rights.
Thus years — even decades — of investment based on reliance of the patent right will be wiped out. This concern was expressed by Justice Breyer during the Oil States argument last week. Second, the rules require the amendment to be made prior to any finding of unpatenrability! The PTAB requires a patent owner to play Russian Roulette with their investment, and guess whether or not the panel will ultimately determine the claims to be unpatentable.
This is no where close to a fair examination, and downright abusive when the PTO has previously guaranteed in writing a promise of exclusivity.
In examination, an applicant has no expectation of a patent right and any investment is understood to be at risk of never obtaining the exclusive right. But here the right to amend is liberal — he can file responses, confer with the examiner, amend after non-final, amend after final, RCE, appeal, etc.
Then, once the secret is published to the world and the inventor holds in his hands a signed and sealed patent, and commences investment based on that right — then the PTO switches sides, threatens to break their promise, and suggests that he surrender his right via amendment, making him guess whether or not they will endorse the original.
It is coerced plea bargaining against a citizen that has followed the law and divulged his secret — a betrayal by the agency whose charter is to secure his rights.Discussion or Analysis Section a.
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