Courtenay C. Brinckerhoff

Courtenay C. Brinckerhoff

Foley & Lardner LLP

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Why the Grace Period Restoration Act Is a Bad Idea

Representatives Sensenbrenner (R-WI) and Conyers (D-MI) have introduced the “Grace Period Restoration Act of 2015? (H.R. 1791) to “correct the drafting problem in the Leahy-Smith American Invents Act relating to the grace...more

5/1/2015 - America Invents Act Grace Period Inventors Patents Proposed Legislation USPTO

An In-Depth Look at USPTO Patent Quality Problems

The comment period for the USPTO’s proposed patent quality initiatives is open until May 6, 2015, and the Office of Inspector General for the Commerce Department has given stakeholders plenty to think about in its final...more

4/22/2015 - Comment Period OIG Patents Quality Assurance Programs USPTO

Waiting on Sequenom

As I write this there’s a voice in my head saying, “Be careful what you wish for!” but it has been five months since Sequenom was argued at the Federal Circuit, and the court has yet to issue its decision. In the meantime,...more

4/8/2015 - Diagnostic Method Healthcare Interim Guidance Patent-Eligible Subject Matter Patents Personalized Medicine Sequenom USPTO

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

Patent Term Adjustment in the Post-RCE Period

We know from Novartis v. Lee that a patent application does not earn “B delay” type Patent Term Adjustment (PTA) from the time an RCE is filed until a Notice of Allowance is issued, but an application still can earn PTA for...more

3/27/2015 - Notice of Allowance Patent Term Adjustment Patents Request for Continued Examination USPTO

Federal Circuit Upholds Patent Term Adjustment Deduction for IDS Filed After Restriction Requirement

In Gilead Sciences, Inc. v. Lee, the Federal Circuit upheld the USPTO’s interpretation of the Patent Term Adjustment (PTA) statute as permitting the USPTO to charge “Applicant Delay” when an Information Disclosure Statement...more

3/3/2015 - Gilead Sciences Patent Prosecution Patent Term Adjustment Patents USPTO

USPTO Seeks Input on Patent Quality

As announced in a February 5, 2015 Federal Register Notice, the USPTO is launching an enhanced quality initiative that includes a request for public comment on certain proposals and a two-day “Quality Summit” to be held March...more

2/18/2015 - Patents Public Comment Quality Assurance Programs USPTO

USPTO Seeks Input on Patent Privilege Issues

The USPTO is seeking public comment on patent privilege issues, regarding the legal protections afforded to communications between patent practitioners and clients in the U.S. and foreign countries. The USPTO is hosting a...more

2/4/2015 - Attorney-Client Privilege Patents Roundtable USPTO

Can Any DNA Claims Still Be Patented?

In a decision issued December 17, 2014, in In Re BRCA1- And BRCA2-Based Hereditary Cancer Test Patent Litigation (Myriad II), the Federal Circuit invalidated Myriad’s primer claims and detection method claims under 35 USC §...more

1/22/2015 - DNA Genetic Materials Interim Guidance Myriad Patent Litigation Patent-Eligible Subject Matter Patents Pathology v Myriad SCOTUS USPTO

Five Things You Need to Know About the USPTO Interim Guidelines on 101

The USPTO issued interim guidelines on 101 (“Interim Guidance”) on December 15, 2014. We summarized the Interim Guidance in this post, and now highlight five things practitioners and stakeholders need to know as they consider...more

1/15/2015 - Interim Guidance Myriad Patent-Eligible Subject Matter Patents Section 101 USPTO

USPTO Issues Final Patent Term Adjustment Rules Under Novartis

The USPTO has published final Patent Term Adjustment (PTA) rules addressing the treatment of Requests for Continued Examination (RCEs) under the Federal Circuit decision in Novartis v. Lee. The final rules create a new type...more

1/12/2015 - Final Rules Novartis Patents Request for Continued Examination USPTO

Three Patent Issues to Watch in 2015

Well, 2014 was a busy year in patent law, and it wasn’t all good news for patent holders. The Supreme Court made 35 USC § 101 a significant hurdle to patenting inventions across a broad swath of technologies, gave more teeth...more

1/8/2015 - Broadest Reasonable Interpretation Standard CLS Bank v Alice Corp Inter Partes Review Proceedings Interim Guidance Limelight v Akamai Nautilus Inc. v. Biosig Instruments Patent Infringement Patents Post-Grant Review SCOTUS USPTO

USPTO Finally Issues New Guidance On Patent Subject Matter Eligibility

The USPTO has issued new “Interim Guidance” for determining whether claims are eligible for patenting under 35 USC § 101. Although the new guidance technically applies to all technologies and all types of claims, Applicants...more

12/17/2014 - Functional Equivalent Patent-Eligible Subject Matter Patents USPTO

USPTO Issues Long-Awaited Revised Guidance on Patent Eligibility

The USPTO has issued new “interim” guidance for determining whether claims are eligible for patenting under 35 USC 35 U.S.C. § 101. Assuming the guidance document is published in the December 16, 2014 Federal Register, it...more

12/16/2014 - Guidance Update Patent-Eligible Subject Matter Patents USPTO

The USPTO Is Off-Key With International Patent Law Harmonization

As a leader in science, technology and innovation, the United States long has played a central role in global intellectual property matters. As the world’s largest economy, the United States has played a central role in trade...more

11/20/2014 - America Invents Act International Harmonization International Searching Authority Patent Cooperation Treaty Patent-Eligible Subject Matter Patents Prior Art TRIPS Agreement USPTO

USPTO Explores Crowdsourcing Prior Art

In a Federal Register Notice dated November 12, 2014, the USPTO solicited public comments on the “use of crowdsourcing to identify relevant prior art,” and announced a related roundtable to be held on December 2, 2014 at the...more

11/14/2014 - Crowdsourcing Patents Prior Art Public Comment USPTO

A Peek at the 60 Minutes GenePeeks Patents

On October 26, 2014, 60 Minutes aired a story called “Breeding Out Disease” that included a segment about GenePeeks, a company that uses genetic information from prospective parents to make thousands of “digital babies” and...more

10/30/2014 - CLS Bank v Alice Corp GenePeeks Genetic Materials Genetic Services Patent-Eligible Subject Matter Patents USPTO

Federal Circuit Upholds Inequitable Conduct Post Therasense For Withheld Information

In American Calcar, Inc. v. American Honda Motor Co., the Federal Circuit upheld the district court’s finding that three Calcar patents are unenforceable due to inequitable conduct. Both courts reached this decision of...more

10/3/2014 - Auto Manufacturers Automotive Industry Honda Inequitable Conduct Patent Litigation Patents USPTO

Federal Circuit Applies "Searching Review" of Stay Pending CBM Proceeding

In Benefit Funding Systems, LLC v. Advance America Cash Advance Centers, Inc., the Federal Circuit upheld the district court’s decision to stay patent infringement litigation while the USPTO Patent Trial and Appeal Board...more

9/30/2014 - America Invents Act Covered Business Method Proceedings Order to Stay Patent Infringement Patent Litigation Patent Trial and Appeal Board Patents USPTO

USPTO Promotes Patent Litigation Toolkit

If you subscribe to USPTO email updates like I do, then you probably received an email recently announcing that the “USPTO Launches Updated Patent Litigation Toolkit and Hosts Free Webinar about Toolkit Resources.” When one...more

9/24/2014 - Patent Litigation Patents USPTO

Update on Mayo Myriad Patent Eligibility From USPTO BCP Partnership Meeting

On September 17, 2015, the USPTO held the first “bicoastal” Biotechnology/Chemical/Pharmaceutical Customer Partnership meeting, with live participation from the USPTO’s main campus in Alexandria, VA and from San Jose...more

9/18/2014 - Biotechnology Chemicals Myriad-Mayo Patent-Eligible Subject Matter Patents Pharmaceutical Professional Conferences USPTO

Airing the USPTO's Naturally Occurring Dirty Laundry — the Subject Matter Eligibility Stain

It has been five months since the USPTO issued its Guidance For Determining Subject Matter Eligibility Of Claims Reciting Or Involving Laws of Nature, Natural Phenomena, & Natural Products to aid examiners in applying the...more

8/22/2014 - Final Guidance Myriad Patent-Eligible Subject Matter Prometheus USPTO

Visiting the USPTO Without a REAL ID

As announced on the “USPTO Locations” page of its website, the USPTO has implemented a new policy for members of the public visiting the USPTO relating to the REAL ID Act. Under the REAL ID Act, the USPTO may no longer accept...more

8/7/2014 - REAL IDs USPTO Websites

Comments on Patent Subject Matter Eligibility Guidance Due by July 31

This week brings the July 31, 2014 deadline for submitting written comments on two USPTO patent subject matter eligibility guidance documents: The “Myriad-Mayo” Guidance issued March 4, 2014 (for claims involving laws of...more

7/29/2014 - CLS Bank v Alice Corp Myriad-Mayo Patent-Eligible Subject Matter Patents Public Comment Rulemaking Process 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 Pendency Targets Public Comment USPTO

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