Patent Licensing: What are FRAND Terms?

Some inventors are fortunate enough to create a technology or device that becomes what is called a “standard essential” technology/device for an entire industry. Generally speaking, “standard essential” technology is that which is necessary to ensure compatibility between similar products made by different manufacturers. Consider a typical smartphone. A smartphone made by one company will… READ MORE

Impossible Burger Patent Litigation: Patenting Organisms and Flavor

An interesting patent case was recently filed by the company that makes “Impossible Burgers” which are plant-based food products made by Impossible Foods. See BloombergLaw media report here. As reported, the key ingredient is something called a “heme” which, for Impossible Foods, is a soy leghemoglobin molecule found naturally in plants and animals and is… READ MORE

How Do I Get a Plant Patent? Let’s Get Started

Plants can be patented under the United States Patent Act. See 35 U.S.C. §§ 161-164. Like a utility patent, a plant patent will protect the patented plant for 20 years from the date of filing the application. The patent gives the owner the right to exclude others from asexually reproducing the plant, and from using,… READ MORE

Patent Claims Drafting: Difference Between Using “A,” “The” and “Such”

An interesting opinion was recently issued by the Federal Circuit concerning how to draft patent claims and the importance of the words used. See Evolusion Concepts, Inc. v. Hoc Events, Inc., No. 2021-1963 (US Fed. Circuit, January 14, 2022). The case involved a patent related to firearm magazine conversion kits. In particular, the patent at… READ MORE

Patent Law: What is the Temporary Presence Defense to Claimed Infringement?

In patent law, there is a rarely-used and little-known defense to a claim of patent infringement called the “temporary presence defense.” The defense has its origins in English law and was recognized here in the United States in a Supreme Court case from 1856. It is now codified in the Patent Act at 35 USC… READ MORE

What is Right to Repair? Lessons from Patent Law

The right-to-repair movement has been in the news lately. Right-to-repair advocates argue that, if you buy a product, you should be allowed to repair it if it becomes nonfunctional. Further, companies should be required to provide manuals, instructions and tools — particularly software tools — that make repair possible. Companies are resistant to complying with… READ MORE

Keeping Trade Secrets Secret and Patent Applications

In general, a trade secret is only legally protectable as long as the information is kept secret. Under both federal and state law, a trade secret is generally defined as any information from which commercial value is derived from the fact that the information is secret. Information as simple as customer or vendor lists can… READ MORE

Can Artificial Intelligence Machines Obtain a Patent?

A US District Court judge recently answered this question in the negative. Indeed, the court stated that the “clear answer is no.” See Thaler v. Hirshfeld, Case No. 1:20-cv-903 (US Dist. E.D. Virginia September 3, 2021). The court held that the “plain language” of the US Patent Act provides that only inventors are entitled to… READ MORE

Patent Law: What is the Written Description Requirement?

A “written description” is one of the many requirements for obtaining a patent. The written description requirement is contained in the Patent Act which states that the “specification shall contain a written description of the invention in such full, clear, concise, and exact terms as to enable any person skilled in the art . …. READ MORE

Responding to a Rejection Based on Double Patenting

Under US patent law, an inventor is entitled to only one patent for an invention. Thus, the US Patent Office can reject a patent application based on double-patenting. Note also that double-patenting can be used as a defense to a claim of patent infringement. Essentially, the defendant can argue that the patent allegedly infringed is… READ MORE