In a unanimous decision issued June 9, 2011, the Supreme Court rejected Microsoft’s arguments that a granted U.S. patent can be invalidated based on a mere preponderance of evidence, rather than clear and convincing evidence, as long has been required. The Federal Circuit had interpreted 35 USC § 282 as embodying a clear and convincing standard, and the Supreme Court agreed.
On April 4, 2011, Judges Lourie, Bryson and Moore at the U.S. Court of Appeals for the Federal Circuit heard oral arguments in Association for Molecular Pathology v. USPTO, also known as the ACLU/Myriad “gene patenting” case. This case has garnered extraordinary attention from the biotech, pharmaceutical, and health care industries, from academic and government researchers, from breast cancer patients and their families, and from the U.S. Department of Justice (DOJ) itself.
These groups disagree on the fundamental legal question of whether isolated DNA should be eligible for a patent, and also disagree on the fundamentally political question of whether the patenting of genes promotes or stifles innovation and development of new diagnostics and therapies. While the Federal Circuit’s decision in this case will be important, further resolution of the issues is likely to come from the Supreme Court. The ultimate decision could have a profound effect on existing intellectual property rights, and could impact current and future patent strategies, particularly in biotechnology-related fields.
European patent applications filed on or after January 1, 2011 will be subject to a new disclosure requirement designed to support international worksharing efforts. The new rule will require applicants to submit copies of search results received from the national patent office of the priority country (the Office of First Filing, or OFF). Failure to comply with the new requirement can result in abandonment of the European patent application, but the EPO plans to implement steps to facilitate compliance.
This week our national conversation is taking a break from contentious political concerns to focus on more enduring questions: whole cranberry sauce or jellied? pumpkin or sweet potato pie? breast or leg? I thought it would be fun to take a look at some of the inventions that may find their way to the Thanksgiving dinner table.
The Pop-Up Thermometer
I knew the pop-up thermometer must have a patent (or several) behind it, but I was surprised to learn that its history includes several competing designs (is it really a surprise that the sink-in thermometer never caught on?) and patent litigation. You can read more in this November 2005 blog article from bookofjoe.
Stove Top Stuffing
There won’t be any on my table this Thanksgiving, but I made (and ate) my share of Stove Top stuffing during my college days. The “instant stuffing mix” was patented in 1975 under U.S. 3,870,803.
Pie Crust Shield
You can fill your pie crust with whatever filling you like (we will be having apple, pecan and pumpkin at my house), but if you burn the crust, your guests will be disappointed. After years of trying to fashion an aluminum foil ring to protect the edges of my crusts, I was thrilled to see a pie crust shield in The Pampered Chef® catalog. This technology must still be evolving because a patent to a “Pie Crust Protection Device Ring” was granted as recently as 1998.
If these tidbits have whet your appetite to learn more about food patents, you might want to visit the National Inventors Hall of Fame and Museum at the USPTO campus in Alexandria, Virginia. Since this summer, the museum has featured a food-related exhibit: Inventive Eats: Incredible Food Innovations.
According to the press release, this exhibit “highlights how our breakfast cereals, sandwiches, dinner entrees, and more have been transformed by significant events, discoveries and inventions. . . . that have made the food we eat safer, healthier and more economical.” I visited the exhibit a few weeks ago, and it was interesting to see how many pantry staples have patented pedigrees.
The museum should be open on Friday, so if you haven’t had your fill of food by then, or if you want a break from the “Black Friday” shopping crowds, you might want to take your family for a tour.
Last week the USPTO announced a new peer-to-patent pilot program that will include patent applications in the fields of biotechnology, bioinformatics, telecommunications, and speech recognition, in addition to the software and business methods applications that were included in the original pilot program. The USPTO touts the promise of a stronger patent and offers the incentive of prioritized examination, but applicants should understand the program details before volunteering their own applications for “peer review.”