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The AIA: Gift or Lump of Coal? Pupilage Group 3 December 13, 2012 1.

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1 The AIA: Gift or Lump of Coal? Pupilage Group 3 December 13,

2 Rules Tables compete 1 minute to formulate answer Legal questions: 5 points each Trivia questions: 7 points each 10-point bonus question (if time) Winners get goodies 2

3 Copyrights (surprise) 3

4 In what circumstances may a case with a copyright claim be removed to federal court? A.Only if the copyright claim appears in the complaint B.Any case with a copyright claim by either party C.If a counterclaim includes a copyright claim and the case was filed before September 16, 2011 D.If a counterclaim includes a copyright claim and the case was filed on or after September 16,

5 Previously, courts typically applied the “well pleaded complaint” rule to find that a counterclaim for copyright infringement does not support “arising under” jurisdiction. The AIA added 28 U.S.C. § 1454, which states: “A civil action in which any party asserts a claim for relief arising under any Act of Congress relating to patents, plant variety protection, or copyrights may be removed to the district court of the United States for the district and division embracing the place where the action is pending.” It also amended 28 U.S.C. § 1338(a) to state explicitly: “No State court shall have jurisdiction over any claim for relief arising from any Act of Congress relating to patents, plant variety protection, or copyrights.” Finally, Section 19(e) of the AIA provides: “Effective Date- The amendments made by this section shall apply to any civil action commenced on or after the date of the enactment of this Act.” The AIA was enacted September 16,

6 From Elf, which of the following is not one of the four main food groups for elves? A.Candy B.Candy Canes C.Candy Corns D.Gummy Bears E.Syrup egEiKLk 6

7 Inter Partes Review 7

8 An accused infringer who is sued for patent infringement petitions for inter partes review within three months of being served with the complaint. The suit is automatically stayed under the automatic stay rule in section 315. A.True, but only if the petition is granted. B.True, but only if petition was granted within 6 months of service of the complaint. C.True, but only if the petitioner also filed an invalidity counterclaim. D.False. An automatic stay is only entered for a civil action challenging the validity that is filed on or after the date the IPR petition was filed, and under section 315(a)(3), a counterclaim does not count as a civil action challenging the validity. 8

9 Which of the following is true regarding the differences between inter partes reexamination and inter partes review? A.After an alleged infringer sued, they now have 1 year to request inter partes review. Pre-AIA, no time limit for requesting inter partes reexamination. True. Compare 35 U.S.C. § 315(b) and old Chapter 31 of Title 35 of the United States Code. B.IPR requires a higher standard of proof than inter partes reexamination. True. See AIA - Sec. 6(c)(3)(A)(i)-(ii) (replacing the SNQ of patentability standard with “reasonable likelihood that the requestor will prevail”). C.USPTO fees for requesting an inter partes review are higher than for inter partes reexamination. True. See 37 C.F.R (inter partes review requests cost $27, /each claim over 20 vs. $8800 for inter partes reexamination). D.All of the above are true. 9

10 In “A Charlie Brown Christmas,” what traditional Christmas carol does the entire Peanuts gang hum, and then eventually sing at the end of the show? A.Silent Night B.Angels We Have Heard on High C.Away in a Manger D.Hark! The Herald Angels Sing vXliIU&feature=player_detailpage#t=395s 10

11 Post-Grant Review 11

12 A post-grant review may be requested within 9 months after the grant of a patent. Which of the following is NOT grounds to challenge a patent in a post-grant review? A.Written description B.Patent eligibility C.Best mode D.B. and C. Post-grant review can be based on any ground that could be raised under paragraph (2) or (3) of 35 U.S.C. 282(b) relating to invalidity (i.e., novelty, obviousness, written description, enablement, indefiniteness, but not best mode). Some patent holders have asserted that Section 101 is not a Section 282 defense, but Director Kappos rejected that position and stated that PGRs may be requested based on lack of compliance with Section nges. nges 12

13 The AIA adopted a special post-grant review for “Covered Business Methods” (CBM) that are “used in the practice, administration, or management of a financial product or service.” What qualifies as a CBM? A.Only products or services of the financial services industry. B.Only those patents asserted against the financial services industry. C.PTO decisions will create a definition, but it clearly isn’t limited to (a) or (b). D.Any patent asserted against Goldman Sachs. A CBM is “a patent that claims a method or corresponding apparatus for performing data processing or other operations used in the practice, administrations, or management of a financial product or service, [but] does not include patents for technological inventions.” AIA sec. 18(d)(1). The determination of whether a patent is for a “technological invention” will be “considered on a case-by-case basis: whether the claimed subject matter as a whole recites a technological feature that is novel and unobvious over the prior art; and solves a technical problem using a technical solution.” 37 C.F.R. §

14 First To File 14

15 There is an animal in a scene in the movie Elf that is also the subject of a viral hit song on YouTube, what is it? A.Reindeer B.Narwhals C.Pigeons D.Porcupine LhkIoQ 15

16 Facts: David publicly discloses X on Day 1; Goliath publicly discloses Y (not in a patent application/patent) on Day 100; and David timely files a patent application claiming X one year from Day 1. According to the USPTO’s July 26, 2012 proposed examination guidelines, will David’s public disclosure of X defeat the prior art effect of Goliath’s public disclosure of Y under section 102(b)(1)(B), which exempts “disclosures” from being prior art if “the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor....”? A.Yes, but only if X and Y are the same. B.Yes, but only if Y is an obvious variation of X. C.Yes, but only if Y is an obvious variation of X, and Goliath came up with Y because Goliath reviewed David’s disclosure of X. D.None of the above. “[T]he exception in 35 U.S.C. 102(b)(1)(B) requires that the subject matter in the prior disclosure … be the same ‘subject matter’ as the subject matter publicly disclosed by the inventor ….” 77 F.R , (July 26, 2012). “Even if the only differences … are mere insubstantial changes, or only trivial or obvious variations, the exception under 35 U.S.C. 102(b)(1)(B) does not apply.” Id. 16

17 According to the AIA’s legislative history, new section 102(a) overturned which of the following? A.The doctrine of “ready for patenting” relevant to evaluating the on sale and public use statutory bars. B.The doctrine that a secret US commercial use more than 1 year prior to filing bars patentability as to the secret commercial user. C.A secret US sale/offer to sell more than 1 year prior to filing bars patentability. D.Both B. and C. E.None of the above. According to Senator Leahy (and others), “[S]ubsection 102(a) was drafted in part to do away with precedent under current law that private offers for sale or private uses or secret processes practiced in the United States that result in a product or service that is then made public may be deemed patent-defeating prior art. That will no longer be the case.” 157 Congressional Record at S1496. Noteworthy: The USPTO took two rounds of public comments for its proposed regulations and guidelines, the second of which closed on November 5,

18 Expediting Examination 18

19 What percentage of Santa’s reindeer are male? A.0% B.50% C.75% D.100% While Santa’s reindeer all have male-sounding names, male reindeer shed their antlers in December. So, the reindeer are probably all female. See (referencing Highfield, Roger The Physics of Christmas: From the Aerodynamics of Reindeer to the Thermodynamics of Turkey. New York, NY: Little, Brown and Company). 19

20 What is the difference between the Accelerated Examination program at the USPTO, implemented in 2006, and the Prioritized Examination program, implemented in in 2011 pursuant to the AIA? A.The pendency goal of Accelerated Examination is 12 months from filing, while the pendency goal of the Prioritized Examination program is 12 months from granting prioritized status. B.The Accelerated Examination program requires a pre- examination search document, while the Prioritized Examination program does not. C.The Accelerated Examination program allows only 3 independent and 20 total claims, while the Prioritized Examination program permits 4 independent and 30 total claims. D.B. and C. E.All of the above. 20

21 21 Accelerated ExaminationPrioritized Examination Claims3 independent claims, 20 total claims 4 independent claims, 30 total claims Additional documentation Pre-examination search and examination support document None Response timeShortened response time (1 month), but extensions available Normal response time, but no extensions available Additional fees$130 additional fee$4,800 additional fee ($2,800 for small entities) PendencyGoal: 12 months from filingGoal: 12 months from time application is granted priority

22 Miscellaneous 22

23 What concept (3-words or 4-words) was removed from Sections 116, 184, 185, 251, 253, 288 of Title 35 as a result of the AIA? Hint: Most of these sections dealt with correction of inventorship or errors in the application. A.without deceptive intent B.someone of ordinary skill C.first and original D.collaboration of joint inventors Answer: “without deceptive intent” (35 U.S.C. §§ 184, 185, 288); “without any deceptive intention” (35 U.S.C. §§ 116, 251, 253). See AIA sec pub-l pdf 23

24 The AIA made two subject areas not patentable as insufficient for novelty or by not allowing the USPTO to issue patents in the area. What are they? A.Human DNA and business methods B.Death and taxes C.Tax strategy and human organisms D.Trick question – everything is patentable under Bilski. For human organisms: AIA sec. 33(a). For tax strategy: AIA sec

25 The new Section 298 regarding opinions of counsel nullifies the Federal Circuit’s holding in what case? A.In re Seagate B.Lucent v. Microsoft C.Broadcom v. Qualcomm D.In re Echostar “The failure of an infringer to obtain advice of counsel with respect to an allegedly infringed patent, or the failure of the infringer to present such advice to the court or jury, may not be used to prove... that the infringer intended to induce infringement of the patent.” 35 U.S.C This overturns the Federal Circuit’s holding in Broadcom Corp. v. Qualcomm Inc., 543 F.3d 683, 699 (Fed. Cir. 2008), that “the failure to procure... an opinion may be probative of intent [to induce infringement].” 25

26 An applicant need not have complied with the “best mode” requirement in a provisional application in order to get the benefit of a priority claim to the provisional application. A.True B.False AIA sec. 15(b). 26

27 Both inter partes reviews and post-grant reviews will be terminated by the Board if the petitioner and patent owner jointly request it. A.False for both. B.False for IPRs but true for PGRs. C.True for both. D.True for both, but only if the joint request is filed before the Board has decided the merits of the proceeding. Sections 317(a) and 327(a) specify that IPRs and PGRs, respectively, “shall be terminated” in these circumstances. 27

28 Given the changes to joinder law in the AIA (and in In re EMC Corp (Fed. Cir. 2012)), MDL may become a more viable option for patent holders. Which of the following is NOT true about an MDL? A.For an MDL request to be granted, there must be one or more common questions of fact among civil actions in different districts. True. 28 U.S.C. § 1407(a). B.For an MDL request to be granted, it must be for the convenience of the parties and witnesses, and must promote the just and efficient conduct of the actions. True. 28 U.S.C. § 1407(a). C.The Chief Justice of the Supreme Court appoints the members of the Judicial Panel on Multidistrict Litigation. True. D.The transferee court can try the consolidated actions. False. Lexecon Inc. et al. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998). 28

29 When was the Texas Trademark Act (Chapter 16 of the Texas Business and Commerce Code) last revised? A.1946 B.1989 C.2012 D.It has never been revised. E.There is no Texas Trademark Act. The effective date of the latest revisions is September 12,

30 In the movie The Santa Clause, what is the Santa Clause? A.All gifts are delivered “As Is.” B.“If you stay up past your bedtime and catch a glimpse of Santa, you will be shipped immediately to the North Pole.” C.“In putting on the suit and entering the sleigh, the wearer waives any and all rights to any previous identity, real or implied, and fully accepts the duties and responsibilities of Santa Claus, in perpetuity until such time that wearer becomes unable to do so, by either accident or design.” D.“Under no circumstances shall Santa Claus be liable to you or any third party for consequential damages regardless of the theory under which such action is brought, whether or not Santa Claus has been advised of the possibility of such damages.” https://www.youtube.com/movie?v=1XIEfwz98RI&feature=mv_sr 30

31 Bonus Question 10 points 31

32 Your company has just been sued for infringement of a patent issued in You file an answer with an invalidity counterclaim. That same week, your boss, who just got back from a CLE on the AIA, asks whether you considered filing for inter partes review. You grab your copy of the AIA and begin reading section 315(a)(1) for the first time, which specifies that an IPR “may not be instituted if the petitioner... filed a civil action challenging the validity of a claim of the patent.” Can you petition for an IPR? A.Yes. B.No. First, the patent has been issued for more than 9 months. Second, section 315(a)(3) specifies that “[a] counterclaim challenging the validity of a claim of a patent does not constitute a civil action challenging the validity of a claim of a patent for purposes of this subsection.” However, you have only one year from service of the complaint to file the petition under section 315(b). 32

33 Happy Holidays! 33

34 In the classic movie “A Christmas Story,” Ralphie’s dad is: A.A Ford man B.A Chevy man C.A Chrysler man D.An Oldsmobile man The Parker family car was a 1937 Oldsmobile Model F-37 four-door trunkback sedan. man 34

35 In subsequent Board proceedings, civil actions, and ITC proceedings, IPR petitioners are estopped from raising both the grounds actually raised in the IPR petition and grounds that reasonably could have been raised. An IPR petition may only be based on patents or printed publications and 102 or 103. Because PGR petitions may be based on “any ground that could be raised under paragraph (2) or (3) of section 282(b),” the estoppel associated with PGRs is limited to those issues actually raised in the PGR petition. A.True. B.False. Section 325(e) includes the same substantive estoppel provisions for PGRs that section 315(e) includes for IPRs. 35

36 36 Happy Holidays!

37 37

38 Good Bone Pile 38

39 In the Elmo and Patsy Shropshire classic holiday tune, who got run over by a reindeer? A.Grandpa B.Grandma C.A patent lawyer D.A federal judge E.Kermit the Frog Grandma Got Run Over by a Reindeer (with accompanying audio clip) 39

40 Inventors 40

41 Which of the following is considered an “Inventor’s oath or declaration” under 35 U.S.C. § 115, as revised by the AIA: A.An oath or declaration B.A substitute statement C.An assignment statement D.All of the above. E.None of the above. As revised by the AIA, 35 U.S.C. 115 (entitled ‘‘Inventor’s oath or declaration’’) provides for an oath or declaration (35 U.S.C. 115(a)), substitute statement (35 U.S.C. 115(d)), and an assignment statement (35 U.S.C. 115(e)), and any substitute statement or assignment-statement must contain a willful false statements clause pursuant to 35 U.S.C. 115(i). 14/pdf/ pdf 41

42 Derivation Proceedings 42

43 Before James Stewart got the part, who was originally signed on to play George Bailey in It’s a Wonderful Life? A.Gregory Peck B.Cary Grant C.Kirk Douglas D.George C. Scott Parade Holiday Movie Quiz, quiz/01/a.html. Grant urged RKO Pictures to buy the rights to the short story “The Greatest Gift,” because he wanted to play the role of George Bailey. But after three unsatisfactory rewrites, RKO sold the rights to director Frank Capra, who brought in Jimmy Stewart for the lead. Capra then called in nine writers—including Dorothy Parker—to transform the short story into a screenplay called It’s a Wonderful Life. Another notable actor swap: Vincent Price was originally picked for the role of Mr. Potter, but it ultimately went to Lionel Barrymore. quiz/01/a.html 43

44 Preissuance Submissions 44

45 Which of the following are the subject of an issued U.S. Patent? A.Santa shaped pasta B.An illuminated lobster shaped Christmas tree light C.Fire-safe tree ornaments D.An active Hanukkah candelabrum that includes flashing lights and music E.All of the above U.S. Design Patent D333,546 relates to Santa shaped pasta, U.S. Design Patent D316,300 relates to the lobster light, U.S. Patent 4,113,020 relates to fire-safe tree ornaments, and U.S. Patent 6,491,516 relates to the Hanukkah device. 45

46 Which of the following is NOT true about preissuance submissions by third parties under 35 U.S.C. § 122 as amended by the AIA? A.A third party may file a preissuance submission in an abandoned application. B.A third party cannot file a preissuance submission in an unpublished application. C.A preissuance submission must include a concise description of the relevance of each submitted document. D.Preissuance submissions are limited to patents, published patent applications, and other printed publications. [Support to be provided] 46

47 Which of the following is NOT true about derivation proceedings under 35 U.S.C. § 135 as amended by the AIA? A.The determination by the Director whether to institute a derivation procedure is appealable. B.The parties to a derivation proceeding can terminate the proceeding by reaching a settlement. C.In a derivation proceeding, the Patent Trial and Appeal Board may correct the naming of the inventor in an application or patent. D.The Patent Trial and Appeal Board’s final decision in a derivation proceeding is appealable. [Support to be added] 47

48 What is the threshold showing for initiating inter partes review? A.That there is a reasonable likelihood of success on the merits with respect to at least one of the claims challenged. B.That there is a substantial question of patentability with respect to at least one of the claims challenged. C.That there is a reasonable likelihood of prevailing with respect to at least one of the claims challenged. D.That the check for the high fee clears the bank – the PTO needs the revenue. 35 U.S.C. 314(a). 48

49 Between September 2011 and June 2012, what percentage of the USPTO fast-track examination program quota had been utilized? A.28% B.35% C.67% D.100% Only 3,500 requests for fast-track examination had been received by the USPTO in this timeframe. The quota is 10,000 slots per fiscal year. Texas Executive Counsel, “A Fast Track For Your Patent Portfolio”, page 30, Vol. 9, Nov. 5, Oct/Nov

50 Current patent maintenance fees are $1,130 (3.5 yrs), $2,850 (7.5 years), and $4,730 (11.5 years). In the Notice of Proposed Rulemaking for fee increases of the AIA, fees will increase to: A.$1,250, $2,875, $5,200 (increase of 10%) B.$1,600, $3,600, $7,400 (increase of 26%) C.$1,600, $3,600, $7,600 (increase of 30%) D.Phased implementation of 10% per year over next 3 years (30% increase) E.None of the above; no proposed fee increase Patent Fees Proposed Rule (77 Fed. Reg , September 6, 2012). 50

51 Under the Texas Trademark Act (Chapter 16 of the Texas Business and Commerce Code), what level of fame is required for a dilution claim? A.The mark must be widely recognized by the public in some geographic area in Texas. B.The mark must be widely recognized by the public throughout Texas. C.The mark must be famous among some discernible segment of consumers in Texas. D.None – the mark only need be distinctive. Under Section (b), “For purposes of this section, a mark is considered to be famous if the mark is widely recognized by the public throughout this state or in a geographic area in this state as a designation of source of the goods or services of the mark's owner.” Prior to the 2012 revisions, fame was not required for a Texas dilution claim; a mark needed only to be distinctive to be entitled to dilution protection. 51

52 Which of the following is NOT true about inventor’s oaths or declarations under 35 U.S.C. § 115 as amended by the AIA? A.An inventor must state in her oath or declaration that she is an original inventor of the claimed invention. B.An inventor must state in his oath or declaration that he authorized the filing of the patent application for the claimed invention. C.An inventor must state in her oath or declaration that she is the first inventor of the claimed invention. D.An inventor is no longer required to state in his oath or declaration that the application filing is made without deceptive intent. [Explanation/citation] 52

53 Post AIA, who would NOT qualify as an Applicant: A.A person to whom the inventor has assigned the invention. B.A person to whom the inventor is under an obligation to assign the invention. C.All of the above. D.None of the above. 37 C.R.F. 1.4___ 53

54 A patent owner may challenge the standing of a petitioner of an inter partes review. A.True B.False A patent holder may challenge the standing of a petitioner in the preliminary response. 35 U.S.C. § 313. For example, a patent holder may provide evidence that the petitioner has filed a civil action challenging patentability prior to filing the petition or that the petitioner otherwise is estopped from challenging the patent owner’s claims. See FAQ IPR12. 54

55 Your company has just been sued for patent infringement of a patent issued in You reviewed the patent before your product was launched and received an opinion that the patent was invalid over a killer piece of prior art. You forego an extension of time, and file an answer with an invalidity counterclaim that explains in unnecessary detail just how invalid the patent is. That same week, you proudly relay your swift and decisive action to the CEO, who just got back from a CLE on the AIA and asks whether you considered filing for inter partes review. You grab your copy of the AIA and begin reading section 315(a)(1) for the first time, which specifies that an IPR “may not be instituted if, before the date on which the petition for such a review is filed, the petitioner or real party in interest filed a civil action challenging the validity of a claim of the patent.” Are you too late to petition for an IPR using the killer prior art? A.Yes. B.No. First, IPR is available because the patent has been issued for more than 9 months. Second, section 315(a)(3) specifies that “[a] counterclaim challenging the validity of a claim of a patent does not constitute a civil action challenging the validity of a claim of a patent for purposes of this subsection.” However, you have only one year from service of the complaint to file the petition with the USPTO under section 315(b). 55

56 Bone Pile 56

57 (6) Prioritized examination is a procedure for expedited review of a patent application for an additional fee. The Office’s goal for prioritized examination is to provide a final disposition within twelve months of prioritized status being granted. What is the limit on the number of prioritized examinations for a given fiscal year? A.8,000 B.10,000 C.15,000 D.20,000  Correct answer is B. The Office posts statistics, including the number of granted prioritized examination requests, on its Web site at In addition, the Office will post a message in EFS-Web if/when the number of granted requests is close to the limit. If the limit is reached, the Office will turn off the ability to file a request for prioritized examination in EFS-Web.B 57

58 (32) As of September 16, 2012, § 1.99 is eliminated. However, a third party can still file a submission of patents or publications relevant to a published application under 37 C.F.R (preissuance submissions). If any document included in the preissuance submission is not compliant, will the entire submission be discarded? A.No, only the non-compliant document is disregarded. B.No, a notice is sent to the submitter and the submitter has 30 days to correct the non-compliance. C.Yes, the entire submission is discarded. D.None of the Above [Statutory/regs citation] The entire submission is discarded and it is not entered into the patent application or considered by the Examiner. If the submitter provided an , then the USPTO will notify the third party. The submitter can only file a corrected submission if the time window for the preissuance submission is open. An amendment to correct the defect is not sufficient. In addition, the USPTO will not refund the fee for the non-compliant submission. In short, make sure the entire submission is compliant. (From: USPTO Roadshow (Houston, September 26, 2012, 58

59 (37) Which is a more cost effective route for expedited examination of a patent application with the USPTO? A.The Accelerated Examination program B.The Prioritized Examination program If your lawyer is “thorough,” probably B. The filing fees for an AE application for a large entity are $1,380 and $660 for a small entity. In contrast, the filing fees of a PE application for a large entity are $6,480 and $3,630 for a small entity. Despite the significantly higher fees for a PE application, this may actually work out to be the more cost effective option. For example, an AE application requires a pre-examination search document, which can add significant cost related to searching and analysis of search results. 59

60 (29) Proposed rule 1.55(a)(2) of the AIA requires a certified copy of any foreign priority application for a US application filed under 35 U.S.C. 111(a) be submitted to the USPTO prior to publication of a US application, since U.S. patents and U.S. patent application publications have a prior art effect under the AIA’s 35 U.S.C. 102(a)(2) as of their earliest effective filing date including foreign priority. The proposed rule requires any foreign priority application must be filed within: A.Four months from the actual filing date of the US application B.6 months from the actual filing date of the US application C.16 months from the filing date of the prior foreign application D.The later of A and C Changes to Implement the First Inventor to File Provisions of the Leahy-Smith America Invents Act, 77 Fed. Reg (July 26, 2012); 60

61 (36) Which of the following may serve as a basis for requesting accelerated examination of a patent application by the USPTO? A.Protection of the claimed invention is vital to national security. B.The applicant's age or health is such that he or she might not be available to assist in the prosecution of the application if it were to run its normal course. C.The claimed invention relates to green technology, such as environmental quality, energy conservation, development of renewable energy resources, and greenhouse gas emission reductions. D.The inventor is impatient. C was formerly an option, but that program has been discontinued. 61

62 (25) The AIA require which of the following to be made in an oath or declaration: A.A statement that the application was made or was authorized to be made by the affiant or declarant; B.A statement that the individual believes himself or herself to be the first inventor or first joint inventor of a claimed invention in the application; C.A statement that the applicant reviewed and understands the contents of the application; D.All of the above. 35 USC 115; 37 CFR ___. 62

63 (23) Post AIA, the term Applicant must always be an Inventor or the Inventors. A.True B.False The Applicant does not have to be the Inventor. [CITE] 63

64 (3) The changes to the best mode requirement apply to all patents, regardless of when they were filed.  (a) True  (b) False Effective date is September 16,

65 (33) As of September 16, 2012 under 35 USC 301, “any person at any time may cite to the Office in writing….statements of the patent owner filed in a proceeding before a Federal court of the Office in which the patent owner took a position on the scope of any claim of a particular patent.” Can a deposition transcript of the patent owner be filed by an accused infringer in a Federal court proceeding? A.Yes B.No The deposition is not a written statement by the patent owner; it was filed by the accused infringer. 35 USC 301 and USPTO FAQs: 65


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