Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Help The USPTO Leverage Prior Art From Related Patent Applications

The USPTO is seeking input on how it can leverage prior art information available on-line in related patent applications in order to “improve patent examination quality and efficiency” and reduce “applicant’s burden to...more

9/2/2016 - Duty to Disclose Patent Application Information Retrieval (PAIR) Patent Applications Patent Examinations Prior Art Public Comment USPTO

USPTO Launches Patents 4 Patients

To support the National Cancer Moonshot initiative, the USPTO has launched the Patents 4 Patients program, also known as the Cancer Immunotherapy Pilot Program. Under this program, applicants can obtain expedited examination...more

8/3/2016 - National Cancer Moonshot Patent Applications Patent Prosecution Patents Request for Continued Examination USPTO USPTO Pilot Program

New USPTO P3 Program Offers Applicant Participation In After Final Conference

The USPTO has launched a new after final program available starting July 11, 2016. The Post-Prosecution Pilot Program (P3) combines features of the After Final Consideration Pilot 2.0 (AFCP 2.0) and Pre-Appeal Brief...more

7/12/2016 - Comment Period Final Action Notice of Appeal Patent Applications Patents Request for Continued Examination USPTO USPTO Pilot Program

CAFC Upholds Same Day Continuation Applications

The Federal Circuit decided not to disturb the “longstanding administrative construction” of 35 USC § 120 that permits the filing of a continuation application on the same day its parent application grants as a patent. The...more

6/23/2016 - CAFC Continuous Applications HTC Patent Applications Patent Litigation Patents Same-Day Continuations USPTO

USPTO Issues New Patent Eligibility Examples

The USPTO has issued new patent eligibility examples, including several examples relating to diagnostic methods and “nature-based” products. Surprisingly, most of the claims are said to satisfy 35 USC § 101. The USPTO also...more

5/10/2016 - Diagnostic Method Examiners New Guidance Patent Applications Patent-Eligible Subject Matter Patents USPTO

Having A Bad Hair Day? The Federal Circuit Agrees That Method Of Cutting Hair Is Invalid Under 101

While I do not usually write about non-precedential decisions, In re: Brown caught my eye as an interesting patent eligibility case. It does not relate to diagnostics or computer programs, but rather to the art of cutting...more

5/2/2016 - Abstract Ideas CLS Bank v Alice Corp Mayo v. Prometheus Patent Applications Patent Invalidity Patent Litigation Patent-Eligible Subject Matter

Will the Federal Circuit Invalidate 13,500 Continuation Patents?

The Federal Circuit is set to hear oral arguments in Immersion Corp. v. HTC Corp. on May 6, 2016. According to the amicus brief filed on behalf of the United States, if the court affirms the district court decision “over...more

4/8/2016 - Amicus Briefs Chevron Deference HTC America Patent Applications Patent Invalidity Patent Litigation USPTO

Patent Term Adjustment In South Korea

According to this bulletin from Lee International IP & Law Group in South Korea, Korean patents filed on or after March 2012 may be entitled to Patent Term Adjustment if they issued more than 4 years after the filing date and...more

3/18/2016 - Delays Fees KIPO Patent Applications Patent Term Adjustment Patents Request for Examination South Korea

Federal Circuit Recognizes Limited Patent Agent Privilege

In In re Queen’s University At Kingston, a divided panel of the Federal Circuit recognized a limited “attorney”-client privilege for patent agents. The majority’s decision to recognize a patent agent privilege is based...more

3/15/2016 - Attorney-Client Privilege Duty of Candor Duty to Disclose Patent Agent Privilege Patent Applications Patent Litigation USPTO

Incomplete Restriction Requirement Stops Clock For Patent Term Adjustment

In Pfizer v. Lee, the Federal Circuit affirmed the decision of the U.S. District Court for the Eastern District of Virginia that upheld the USPTO’s Patent Term Adjustment (PTA) calculation that stopped the clock running...more

1/27/2016 - Notice Requirements Patent Applications Patent Litigation Patent Term Adjustment Pfizer Popular USPTO

Losing Competing Property Not A Teaching Away

In In re Urbanski, the Federal Circuit upheld the decision of the USPTO Patent Trial and Appeal Board (PTAB) finding the claims of Urbanski’s patent application obvious. Urbanski had argued that the cited references taught...more

1/13/2016 - Obviousness Patent Applications Patent Litigation Patent Trial and Appeal Board Prior Art

Did The PTAB Dose The AIA Poison Pill Incorrectly Against Premium Genetics?

In Inguran, LLC v. Premium Genetics (UK) Ltd., the USPTO Patent Trial and Appeal Board (PTAB) instituted Post Grant Review (PGR) proceedings in a patent granted from an AIA transition application based on its finding that at...more

1/5/2016 - America Invents Act Anticipation Effective Filing Date First-to-File Patent Applications Patent Trial and Appeal Board Post-Grant Review

Interference Statute Does Not Require Diligence For Re-Presenting Claims

In In re: Commonwealth Scientific & Industrial Research Organisation, the Federal Circuit held that pre-AIA 35 USC §135(b)(1) does not embody a diligence requirement, such that interfering claims presented more than 5 years...more

12/11/2015 - Interference Proceeding Patent Applications Patent Litigation Patent Trial and Appeal Board Safe Harbors

USPTO Proposes New IDS Framework

Tucked into the USPTO’s proposed patent fee changes is a proposal to change the Information Disclosure Statement (IDS) framework. While applicants may welcome the simplified procedures for obtaining consideration of an IDS,...more

11/13/2015 - Comment Period Foreign Patent Applications Information Disclosure Statement Patent Applications Patent Fees USPTO

Wertheim, Dynamic Drinkware and the AIA

In Dynamic Drinkware, LLC v. National Graphics, Inc., the Federal Circuit held that in order for a patent to qualify as prior art as of its provisional application filing date, the provisional application must support the...more

11/4/2015 - America Invents Act Effective Filing Date Patent Applications Patent Infringement Patent Litigation Patents Prior Art Provisional Applications USPTO

Morsa II: Admissions Enable Prior Art

In its 2013 decision in In re Morsa, the Federal Circuit vacated an anticipation rejection where “both the Board and the examiner failed to engage in a proper enablement analysis” to establish the enabling quality of the...more

10/28/2015 - Enablement Inquiries Examiners Obviousness Patent Applications Patent Litigation Patent Trial and Appeal Board Patents Prior Art USPTO

Improving Patent Quality With International Collaborative Search Pilot Programs

The USPTO has launched two new programs aimed at improving patent quality by joining forces with the Japanese Patent Office (JPO) or the Korean Intellectual Property Office (KIPO) at the initial stages of the patent...more

9/16/2015 - Collaboration Federal Pilot Programs Federal Register Foreign Patent Applications Intellectual Property Protection Japan JPO Patent Applications Patent Examinations Patentability Search Patents Popular South Korea USPTO

District Court Finds Enhanced Patent Indefiniteness

I don’t usually write about district court decisions, but the patent indefiniteness ruling in Andrulis Pharmaceuticals Corp. v. Celgene Corp. (D. Del., July 26, 2015), caught my attention. The court held the asserted claim...more

8/4/2015 - Indefiniteness Patent Applications Patent Litigation Patent-in-Suit Patents Prior Art

Examination Delay Earns Patent Term Adjustment Only In One Application

In Mohsenzadeh v. Lee, the Federal Circuit affirmed the district court’s decision that the USPTO’s delay in issuing a Restriction Requirement in a parent application does not earn Patent Term Adjustment (PTA) for the ensuing...more

7/3/2015 - Delays Divisional Applications Patent Applications Patent Litigation Patent Term Adjustment Patents Summary Judgment USPTO

Federal Circuit Strikes Final Blow to Celebrex Patent

In 2008, the Federal Circuit determined that claims 1-4 and 11-17 of U.S. Patent No. 5,760,068 were invalid for obviousness-type double patenting (OTDP) over a related parent patent, in part because the ‘068 patent was filed...more

6/27/2015 - Divisional Applications Double Patent OTDP Patent Applications Patent Invalidity Patent Litigation Patents Pfizer Pharmaceutical Industry Pharmaceutical Patents Reissue Patents Safe Harbors USPTO

USPTO Pilots Expedited Patent Appeal Program But at What Price?

In a June 15, 2015 Federal Register Notice, the USPTO announced the Expedited Patent Appeal Pilot program, which will run until 2,000 ex parte patent appeals are expedited under the program, or until June 20, 2016, whichever...more

6/19/2015 - Federal Register Inventors Patent Applications Patent Litigation Patent Term Adjustment Patent Trial and Appeal Board Patents Pharmaceutical Patents Request for Continued Examination USPTO

Federal Circuit Holds Sequenom Diagnostic Method Patent Invalid Under 101

On Friday, June 12, 2015, the Federal Circuit issued its decision in Ariosa Diagnostics, Inc. v. Sequenom, Inc., affirming the district court's finding that Sequenom’s claims are invalid under 35 USC § 101. The court's...more

6/15/2015 - Diagnostic Method Inventions Mayo v. Prometheus Myriad Patent Applications Patent Infringement Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Patents Personalized Medicine Preemption Preliminary Injunctions Sequenom Summary Judgment

No Collateral Challenge of Patent Application Revival

In Exela Pharma Sciences, LLC v. Lee, the Federal Circuit held that the USPTO’s decision to revive a patent application “is not subject to third party collateral challenge” under the Administrative Procedures Act (APA). In so...more

4/1/2015 - Administrative Procedure Act Patent Applications Patent Litigation Patents USPTO

How Long Is Too Long (or Too Short) for Patent Application Pendency?

The USPTO is requesting input on the “optimal” targets for its patent application pendency metrics. The USPTO’s current targets are 10 months to a first Office Action and 20 months to grant or abandonment. The USPTO wants to...more

7/21/2014 - Patent Applications Public Comment USPTO

USPTO Proposes Revised Patent Term Adjustment Rules for RCEs Under Novartis

The USPTO has published proposed rules for calculating Patent Term Adjustment (PTA) for applications in which a Request for Continued Examination (RCE) has been filed, after the Federal Circuit held in Novartis v. Lee that...more

6/20/2014 - Novartis Patent Applications Patent Term Adjustment Proposed Regulation Public Comment Request for Continued Examination USPTO

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