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AIPLA Newsstand 2018 as Appearing in Lexology

​Rembrandt Must Pay Attorney Fees for Litigation Tactics​ ​Non-practicing entity Rembrandt Technologies, LLC (Rembrandt) is required to pay attorney fees to a multitude of defendant-appellees, including Comcast, Cisco, and Time-Warner, for litigating their patent infringement case in an “unreasonable manner,” the Federal Circuit ruled in a newly unsealed opinion on August 15, 2018. In Re: Rembrandt Technologies LP Patent Litigation, Fed. Cir., No. 2017-1784, 7/27/18. The district court found the case “exceptional” and awarded attorney fees after finding that Rembrandt “improperly compensated its fact witnesses,” engaged in the destruction of evidence, and should have known that the patents were unenforceable. The Federal Circuit found no fault with the district court’s factual findings nor any error in the legal standard it employed, but noted that the court failed to directly link Rembrandt’s misconduct to the entirety of the multi-district litigation, thereby vacating the court’s $51 million award and remanding for further proceedings.
USPTO Announces BCP Partnership Meeting ​ ​On August 15, 2018, the USPTO announced that it will hold a Biotechnology, Chemical, and Pharmaceutical Customer Partnership (BCP) Meeting on Sept. 24, from 10 a.m. to 4 p.m. ET, at the USPTO headquarters in Alexandria, Virginia. The meeting provides an informal setting to share insights and experiences that can improve patent prosecution in biotechnology areas. Participants will have the opportunity to meet directly with technology center representatives in a collaborative forum to share ideas, experiences, and insights. To register and attend, please visit the USPTO’s webpage by clicking the link in the header.
​Dish Network Gets ‘DishNet’ Trademark​ ​The U.S. Court of Appeals for the Tenth Circuit on August 10, 2018, affirmed a district court decision which allows Dish Network LLC to keep its trademark rights in the mark DISHNET, the domain name, and related trademarks, despite Digital Satellite Connections using the name first. Digital Satellite Connections, LLC v. Dish Network Corp., 10th Cir., No. 17-1110, 8/10/18. An obligation from a 2010 trademark license agreement signed by Digital Satellite Connections (DSC) gave Dish Network Corp (Dish) the rights to the DISHNET mark at the end of the retailer agreement between the two companies. However, on the expiration date of the retailer agreement the owner of DSC transferred ownership of the DISHNET mark to a third-party in order to protect its ownership of the mark. The tactic didn’t work because the third-party entity wasn’t a “bona fide purchaser for value,” the court said.
PTAB Publishes Update to AIA Trial Practice Guide​ ​On August 10, 2018, the Patent Trial and Appeal Board (PTAB) published an update to the AIA Trial Practice Guide (TPG) containing additional guidance about trial practice before the Board. Among other things, the updated sections of the TPG include guidance on: the use of expert testimony; consideration of various non-exclusive factors in the determination of whether to institute a trial; providing for sur-replies to principal briefs as a matter of right; the distinction between motions to exclude and motions to strike, and the proper use of each; procedures for oral hearing before the Board, including the use of live testimony, sur-rebuttal, and default time for the hearing; and providing for a pre-hearing conference and potential early resolution of issues. The USPTO published the original TPG in August 2012 to inform the public of standard practices during AIA trials before the Board and encourage consistency of procedures among panels of the Board.
USPTO Announces 2018 Patents for Humanity Winners ​On August 9, 2018, the United States Patent and Trademark Office (USPTO) announced the latest winners of the Patents for Humanity program. The Patents for Humanity program was launched by the USPTO in February 2012 as part of an initiative promoting game-changing innovations to address long-standing development challenges. “Each of these recipients showcases the power of innovation to help the less fortunate around the globe,” said Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office Andrei Iancu. “By recognizing and honoring these innovators whose creativity and curiosity dared them to solve some of the toughest humanitarian challenges, we hope this program will continue to inspire countless more to follow in their footsteps.” Read more about the winners on the USPTO’s website.
Ex Parte Jung Is No Longer Designated as Informative ​On August 7, 2018, the Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) de-designated as informative Ex parte Jung, 2016-008290 (March 22, 2017). On July 10, 2018, the PTAB designated Ex parte Jun as an informative decision, however, the PTAB explains that the decision had not been read as intended. The Office explained that the designation was not intended to reflect new or changed policies with respect to claim construction. As a result, in order to avoid any confusion, the decision has been de-designated and removed from the list of informative decisions. The case remains a routine decision of the Board, pursuant to PTAB SOP2.
USPTO Submits Preliminary Patent Fee Proposal ​The Director of the United States Patent and Trademark Office (USPTO) on August 8, 2018, notified the Patent Public Advisory Committee (PPAC) of the Office’s intent to set or adjust patent related fees and submitted a preliminary patent fee proposal with supporting materials. Prominent among the proposal is the addition of two new fees. The first is a surcharge of $400 (large entity) for failing to file patent application documents in DOCX format, intended to encourage applicants to use DOCX in order to improve examination quality and lower processing costs. The second is an annual registration fee for registered patent attorneys, agents and individuals granted limited recognition, of $410 or $340 depending on whether the fee is submitted on paper or electronically. There are no proposed fee reductions and most of the fees are increased by 5% to 10%.
“Casas Bahia” Trademark Established in US by Selling US Ads ​A Brazilian retailer that didn’t sell products directly to US consumers, but contracts with US companies to provide advertising of their goods on the retailer’s website, demonstrated sufficient public use in commerce to establish US trademark use, the U.S. Court of Appeals for the Eleventh Circuit held. Direct Niche, LLC v. Via Varejo, 11th Cir., No. 17-13937, 8/3/18. Via Varejo operates more than 750 Casas Bahia retail locations in Brazil but none in the US and used the domain name for its website. Direct Niche LLC, an American domain name reseller, registered the domain and “parked” it, displaying ads but containing little original content. Via Varejo sought control over the domain name, arguing that Direct Niche registered the domain with bad-faith intent to profit from Via Varejo’s service mark. Affirming the district court, the Court was not persuaded by Direct Niche’s argument that Via Varejo had no standing to challenge its U.S.-based domain name registration.
Losing PTAB Challenger Cannot Appeal ​A losing challenger at the United States Patent and Trademark Office’s Patent Trial and Appeal Board with no competing product on the market may lack standing to appeal, according to the Federal Circuit. JTEKT Corp. v. GKN Auto. Ltd., Fed. Cir., No. 2017-1828, 8/3/18. Japan-based JTEKT Corp., an automotive engineering company, didn’t have a “concrete and particularized” stake in the case because no one is suing it for infringement, and the company lacked a potentially infringing product, explained the court explained. To prove it had standing, JTEKT filed declarations from its engineers, but they admitted the company’s planned product wasn’t final and will “continue to evolve,” according to the court ruling.
Maker of Pet Gazebo Can Sue Former Manufacturer ​​​​​​The Federal Circuit on August 1, 2018, held that prosecution history estoppel does not bar Advantek Marketing, Inc., makers of the Pet Gazebo, from suing its former manufacturer Shanghai Walk-Long Tools Co. Ltd., for design patent infringement. Advantek Marketing Inc. v. Shanghai Walk-Long Tools Co., et al., Fed. Cir., No. 17-1314, 8/1/18. Advantek owns a design patent for its “Pet Gazebo”, and initially included a cover in one of its five photographs submitted to the USPTO, however, a patent examiner forced the company to abandon the cover to protect the patent for the skeletal structure depicted in four other images. The district court relied on the Federal Circuit’s 2014 standard in Pacific Coast Marine Windshields Ltd. v. Malibu Boats LLC to grant Walk-Long judgment on the pleadings, in part because their “Pet Companion” product included a cover. The Federal circuit disagreed, reversing and remanding, saying that adding a cover to the patented design does not prevent infringement.
Fee Schedule Update ​On August 1, 2018, the U.S. Patent and Trademark Office announced that it updated it’s fee schedule for Patent Cooperation Treaty (PCT) Fees to Foreign Offices. International search (Rospatent) fees have decreased from $691 to $638. The fee schedule provides information and fee rates for products and services provided by the USPTO. For additional information, please call the USPTO Contact Center at (571) 272-1000 or (800) 786-9199 or go to their website.
Oregon Brewing Company May Use ‘Rogue’ Mark on Clothing ​The Second Circuit held that Oregon Brewing Company (OBC), which sells beer under the brand name ‘Rogue’ nationwide, may continue to use its long-running ‘Rogue’ trademark on t-shirts, sweatshirts, hats, and other clothing, reversing an infringement ruling against the beer maker. Sheepskin v. Oregon Brewing Co., 2d Cir., No. 16-3602, 7/27/18. A lower court had ruled that Excelled Sheepskin & Leather Coat Corp. was first to sell ‘Rogue’ apparel in clothing-only and department stores, and that the brewer had infringed its mark, despite OBC selling Rogue merchandise since 1989 at its brewery, pubs, and website. The Second Circuit explained that “the law does not limit the owner’s trademark rights to the types of stores in which it has sold, leaving the mark up for grabs in any other type of store. OBC was the senior user of Rogue on several categories of apparel nationwide and established a protectible priority in the mark’s use for such goods.”
USPTO May Not Collect Attorneys’ Fees in Section 145 Actions ​The U.S. Patent and Trademark Office is not entitled to an award of attorneys' fees under the statutory language in 35 U.S.C. 145 stating that "[a]ll the expenses of the proceedings shall be paid by the applicant," the en banc Federal Circuit held July 27, 2018 in a 7-4 decision. Nantkwest, Inc. v. Iancu, Fed. Cir., No. 16-1794, 7/27/2018. According to an opinion written by Judge Stoll, the American Rule prohibits courts from shifting attorneys’ fees from one party to another absent a “specific and explicit” directive from Congress. The statutory phrase “[a]ll the expenses of the proceedings” falls short of this stringent standard, she explained. Judge Prost wrote a dissenting opinion, joined by Judges Dyk, Reyna and Hughes, arguing that the text of Section 145 displaces the American Rule, citing case law where attorneys’ fees were recognized as encompassed by expenses and costs.
​Franconia Repository Closing ​While the official record for trademark applications and registrations is maintained electronically at Trademark Status & Document Retrieval (TSDR), some trademark file records indicate a physical location of “File Repository (Franconia)”. However, the Franconia facility is closing, and trademark paper records previously stored there are no longer available for retrieval. Most paper files have been destroyed, but a small number have been moved to the National Archives and Records Administration (NARA) or the Federal Records Center. A location of “NARA” or “Federal Records Center” may be shown for these records. If you believe a document in the electronic prosecution history of a trademark registration or application is missing from the TSDR record, please send an email request for correction to the USPTO at
​PTAB Will Hold Judicial Conference in Dallas  ​The PTAB is holding a judicial conference in Dallas, Texas on Tuesday, July 31. The theme for the conference is Sharing Insights: From Bench to Bar and Bar to Bench.” Attendees will interact directly with PTAB judges throughout the day as the two groups share points of view with each other. In the morning, attorneys will sharpen their written and oral advocacy skills by working in small groups with at least one PTAB judge facilitating each group’s discussion. Later in the day, attendees will converse with judges on hot topics such as patent eligible subject matter and motions to amend, sharing their opinions on these developing issues. The day will end with an informal reception, where attendees can mingle with judges and continue the conversation.
New PCT Collaboration Search and Examination Pilot ​On July 1, the five largest intellectual property offices in the world (IP5) launched a Patent Cooperation Treaty (PCT) Collaboration Search and Examination Pilot. The pilot allows examiners from all five offices, with different working languages, to collaborate on the search and examination of a single international application. The result is an international search report and written opinion from the chosen international searching authority based on contributions from all participating offices. Benefits to applicants include a search done by multiple examiners in different languages, increased predictability of outcome, and no extra cost. For more information, including how to request to have an application included, visit the pilot's page on the USPTO website.
Copyright Office Releases Upgrades to Virtual Card Catalog Proof of Concept​ ​On July 18, 2018, the U.S. Copyright Office implemented a series of technical upgrades to enhance searching and results tracking capabilities when using the proof of concept of the Virtual Card Catalog (VCC). The upgraded version now includes options for users to: perform simple and advanced queries based off the raw datasets captured from the images; execute queries to narrow the number of results from browsing (in addition to browsing drawers); have more images from which to search (for a more complete search); select multiple drawers from multiple indexes to browse and can click on a card to enlarge an image along with the set of images for easy scrolling; and also select specific drawers for additional queries, in addition to saving up to twenty-five cards to a folder during a browsing session.
Agent/Attorney Three-Day Course ​The USPTO announced that sign-up is open for their Attorney/Agent 3-Day Course on Examination Practice and Procedure at their headquarters in Alexandria, Virginia, Sept. 11-13. The training makes use of statutes, rules, and guidelines relevant to practicing before the agency and it is limited to those who have passed the patent bar, with priority given to those who recently passed. The course is led by USPTO trainers and is based on material developed for training patent examiners and other employees. For more information, including a proposed upcoming course schedule, please go to the USPTO website.
Removal of Rules Governing Trademark Interferences ​On July, 17, 2018, the United States Patent and Trademark Office (USPTO) amended the Rules of Practice in Trademark Cases to remove the rules governing trademark interferences. This rule arises out of the USPTO’s work during FY 2017 to identify and propose regulations for removal, modification, and streamlining because they are outdated, unnecessary, ineffective, costly, or unduly burdensome on the agency or the private sector. The revisions put into effect the work the USPTO has done, in part through its participation in the Regulatory Reform Task Force (Task Force) established by the Department of Commerce (Department or Commerce) pursuant to Executive Order 13777, to review and identify regulations that are candidates for removal.
Blackbird Lighting Patent Suit Revived​ ​On July 16, 2018, the Federal Circuit revived Blackbird Tech LLC’s patent infringement lawsuit over energy-efficient lighting. Blackbird Tech LLC v. ELB Elecs., Inc., 2018 BL 250676, Fed. Cir., No. 17-1703, 7/16/18. In a 2-1 decision, the Federal Circuit threw out the lower court’s interpretation of the patent claim language. The patent covers both methods and devices for retrofitting existing light fixtures to use light-emitting diodes, or LED lighting.
USTR Outlines Procedures for Exclusion from China Tariffs ​In a notice published on June 20, 2018, the U.S. Trade Representative determined that appropriate action to obtain the elimination of China's acts, policies, and practices related to technology transfer, intellectual property, and innovation includes the imposition of an additional ad valorem duty of 25 percent on products from China classified in certain enumerated subheadings of the Harmonized Tariff Schedule of the United States (HTSUS). A July 11, 2018, notice set out the specific procedures and criteria related to requests for product exclusions, and opened a docket for the receipt of exclusion requests.
U.K. Intends to Stay in UPC​ ​In a July 12, 2018, white paper outlining the United Kingdom’s goals for its future relationship with the European Union after Brexit, the U.K. expressed its desire to be a part of the Unified Patent Court (UPC). At the time, the Brexit vote raised questions about whether the U.K. could be part of the UPC after its final withdrawal from the EU. However, the 98-page white paper indicates the U.K.’s intention to stay in the Unified Patent Court and unitary patent system after it leaves the EU. The system would create a single patent right covering most of Europe, along with a new court to rule on disputes relating to the new patents.
Patent Office Gives Guidance on Range of Questions ​On July 10, 2018, the PTAB designated the following decisions as informative. Ex parte Ditzik, 2018-000087 (Mar. 2, 2018) – holding that the Examiner’s invocation of issue preclusion was not in error based on Appellant’s arguments. Ex parte Jung, 2016-008290 (Mar. 22, 2017) – applying the Federal Circuit’s decision in SuperGuide Corp v. DirecTV Enters.,Inc., 358 F.3d 870, 885¬–86 (Fed. Cir. 2004), which explains that there is a difference between a list separated by “and” and “or,” where the plain and ordinary meaning of “at least one of A and B” is the conjunctive phrase requiring the presence of both A and B. Ariosa Diagnostics v. Isis Innovation Ltd., Case IPR2012-00022, Paper 55 (Aug. 7, 2013), Colas Sols. Inc. v. Blacklidge Emulsions, Inc., Case IPR2018-00242, Paper 9 (Feb. 27, 2018), and Argentum Pharm. LLC v. Alcon Research, Ltd., Case IPR2017-01053, Paper 27 (Jan. 19, 2018) were also designated as informative.
Pre-Filing Tests Don’t Invalidate Traffic Light Patent​ ​The Federal Circuit, on July 10, 2018, ruled that installing a traffic signal system in public for the visually impaired before trying to patent the device does not make the patent invalid. Polara Eng’g Inc v. Campbell Co., Fed. Cir., No. 17-1974, 7/10/18. Publicly using an invention more than a year before the inventor applies for a patent will typically result in the patent being declared invalid for lack of novelty, however, federal patent law allows public experiments to improve an invention. Here, the Federal Circuit chose not to diverge from the lower court’s ruling, which saw a jury declare the patent valid, concluding that Polara’s pre-filing installations of the system, at two public intersections, were permissible experiments.
Agent/Attorney Three-Day Course ​The USPTO announced that sign-up is open for their Attorney/Agent 3-Day Course on Examination Practice and Procedure at their headquarters in Alexandria, Virginia, Sept. 11-13. The training makes use of statutes, rules, and guidelines relevant to practicing before the agency and it is limited to those who have passed the patent bar, with priority given to those who recently passed. The course is led by USPTO trainers and is based on material developed for training patent examiners and other employees. For more information, including a proposed upcoming course schedule, please go to the USPTO website.
New TBMP Available​ ​The June 2018 update of the Trademark Trial and Appeal Board Manual of Procedure (TBMP) is now available on the Trademark Trial and Appeal Board webpage. The revision describes current practice and procedure under the applicable authority and relevant case law reported between March 3, 2017, and March 2, 2018.
New PCT Collaboration Search and Examination Pilot  ​On July 1, the five largest intellectual property offices in the world (IP5) launched a Patent Cooperation Treaty (PCT) Collaboration Search and Examination Pilot. The pilot allows examiners from all five offices, with different working languages, to collaborate on the search and examination of a single international application. The result is an international search report and written opinion from the chosen international searching authority based on contributions from all participating offices. Benefits to applicants include a search done by multiple examiners in different languages, increased predictability of outcome, and no extra cost. For more information, including how to request to have an application included, visit the pilot's page on the USPTO website.
António Campinos takes over as President of the European Patent Office  ​On July 2, 2018, António Campinos took up office as President of the European Patent Office (EPO). The Portuguese national was elected President in October 2017 by the Administrative Council of the European Patent Organization, the EPO’s legislative body, for a five-year term. Prior to the appointment as President of the EPO, António Campinos was the Executive Director of the European Union Intellectual Property Office (EUIPO) in Alicante/Spain from 2010 until June 2018. He joined the Portuguese IP Office, INPI, in 2000 as Trademark Director and in 2005 was elected its President. From 2005 to 2007 he headed the Portuguese Delegation on the Administrative Board of the EUIPO, and was Chairman of this board from 2008 to 2010.
Experian Name-Address Data Gets Limited Copyright Protection ​Experian Information Solutions Inc. can’t sue SPL Nationwide Marketing Services for copyright infringement even though its database of 250 million names and addresses are copyrightable as compilations, the United States Court of Appeals for the Ninth Circuit ruled on June 27, 2018. The Court ruled that Experian didn’t have a copyright infringement claim against their competitor despite the fact that SPL Nationwide Marketing Services copied as much as 80 percent of Experian’s database, because they hadn’t copied “substantially the entire item.”
Patent Cooperation Treaty Collaborative Search and Examination Pilot Project ​The United States Patent and Trademark Office (USPTO), the European Patent Office (EPO), the Japan Patent Office (JPO), the Korean Intellectual Property Office (KIPO) and the State Intellectual Property Office of the People's Republic of China (SIPO), referred to collectively as the IP5 Offices, will launch a pilot project on Collaborative Search and Examination (CS&E) under the Patent Cooperation Treaty (PCT), according to a June 27, 2018, Federal Register notice. 83 Fed. Reg. 30145. This will be the third such pilot. The USPTO, the EPO, and the KIPO conducted two previous pilots in 2010 and in 2011-2012. The third pilot is needed to further develop and test the concept amongst all the IP5 Offices. In particular, this IP5 pilot project aims at assessing user interest for a CS&E product and the expected efficiency gains for the IP5 Offices. The pilot effective date is July 1, 2018.
Patent Damages Award May Include Foreign Lost Profits ​A damages award under 35 U.S.C. § 284 for infringement under § 271(f)(2) may include foreign lost profits, regardless of the presumption against extraterritoriality for federal statutes, the Supreme Court held in a 7-2 decision on June 22, 2018. WesternGeco LLC v. Ion Geophysical Corp., U.S., No. 16-1011, 6/22/18. The opinion by Justice Thomas reversed and remanded the judgment of the Federal Circuit and explained that WesternGeco's damages award for foreign lost profits was a permissible domestic application of § 284. Commenting on § 271(f)(2) and its focus on domestic conduct, Justice Thomas wrote that the conduct that is relevant "clearly occurred in the United States, as it was ION's domestic act of supplying the components that infringed WesternGeco's patents."​
2018 Patent Trial and Appeal Board Annual Judicial Conferences​ ​The USPTO will host several Judicial Conferences at their headquarters in Alexandria, Virginia and near all the Regional Offices in the coming weeks. The program will be the same at all locations and is intended to educate the public about aspects of Board practice and provide a for dialogue between the public and the Board. During the morning sessions, the PTAB will focus on best practices for written and oral advocacy with a judge panel discussion and practicum exercises for attendees. During the afternoon sessions, the PTAB will host small group discussions to address hot topics, such as patent subject matter eligibility and motion to amend practices. The conference will conclude with an interview with Chief Judge David Ruschke led by members of the local IP community to explore other recent PTAB developments and potential future changes. For a full listing of the dates, times, and locations, please visit the USPTO 2018 PTAB Annual Judicial Conferences page.
USPTO Adds Additional Schools to Law School Clinic Certification Program​
​Twenty new law schools have joined the United States Patent and Trademark Office (USPTO) Law School Clinic Certification Program, the USPTO stated in a press release June 20, 2018. The new law schools join the 43 law schools that were participating in the program, bringing the total number of participating law schools to 63. Students at the University of California - Irvine School of Law, University of Miami School of Law, Washington University in St. Louis School of Law, and those at other chosen schools, will have the opportunity to process patent and trademark applications before the USPTO under the guidance of an approved faculty clinic supervisor. Further, the participating law school clinical programs provide patent and trademark legal services to independent inventors and small businesses on a pro bono basis. The selection committees chose these schools based on their solid intellectual property curricula, pro bono services to the public, as well as community networking and outreach.
​USTR Seeks Comments on §310 Tariffs​ ​The U.S. Trade Representative on June 20, 2018, has requested additional public comment concerning its newly announced list of products imported from China that may be subject to additional tariffs. This action results from the Trade Representative’s investigation into Chinese trade and industrial policies that harm U.S. intellectual property, which was initiated in August 2017 under Section 301 of the Trade Act of 1974. The proposed tariffs would include a 25% duty on several manufacturing and industrial materials and machinery.
10 Millionth Patent Awarded to Raytheon Co. ​Raytheon Co., the major US defense contractor, received the 10 millionth patent issued by the Patent and Trademark Office on June 19, 2018. The patent is titled “Coherent LADAR Using Intra-Pixel Quadrature Detection” and covers a system that uses lasers to detect objects and improves how laser detections systems capture and handle data. The technology, which is similar to radar, is instrumental in self-driving car technology. “This patent represents one of ten million steps on a continuum of human accomplishment launched when our Founding Fathers provided for intellectual property protection in our Constitution,” said USPTO Director Andrei Iancu.
​Semiconductor Customer Partnership Meeting​ ​The Patent and Trademark Office on July 26, 2018, will hold its Semiconductor Customer Partnership Meeting at USPTO headquarters in Alexandria, Virginia. The semiconductor workgroup examines solid-state devices and manufacturing processes, memory storage and retrieval, and laser technologies. During this meeting, participants will be able to interact with USPTO personnel in person or via webcast. Topics will include: appeal and pre-appeal processes, certainty in search and CPC, interview tools and process, and patent prosecution. More information, including how to register, is available on the USPTO website.
Copying Photo for Film Fest Site is Fair-Use​  ​The United States District Court for the Eastern District of Virginia on June 11, 2018, ruled that the organizer of the “Northern Virginia Film Festival” did not infringe a photographer’s copyright by posting a cropped version of the photograph on the festival’s website. Brammer v. Violent Hues Prods., LLC, E.D. Va., No. 17-1009, 6/11/18. Brammer initiated the suit when Violent Hues cropped and displayed Brammer’s time-lapse photo of the Adams Morgan neighborhood on its website in 2016 with other images of the Washington area. The court found Violent Hues’ use of the photo was protected by fair use. The court reasoned that the use was transformative because it was displayed on the website for informational, non-commercial purposes only.
No Attorney Fees in Medical Device Patent Suit ​Cook Medical LLC has been denied attorney fees in a medical device patent infringement suit brought by Stone Basket Innovations LLC because Cook Medical did not prove Stone Basket filed a frivolous suit. Stone Basket Innovations, LLC v. Cook Medical LLC, Fed. Cir., No. 17-02330, 6/11/18. Before the District Court, Cook Medical contended that Stone Basket’s untenable litigation position warranted an award of attorney fees. But the District Court disagreed, noting that Cook Medical’s conduct, including their failure to inform Stone Basket that it believed the suit to be frivolous, failure to demand that they drop the lawsuit, and failure to indicate to them that the asserted claims were “clearly invalid,” indicates the strength of Stone Basket’s litigation positions. The Federal Circuit affirmed, despite Cook Medical’s contention that the District Court had no authority to factor in their tactical decisions, because the “conduct of the parties is a relevant factor under Octane’s totality-of-the-circumstances inquiry.”
USPTO Issues Examiner Guidance Memorandum on Vanda Pharmaceuticals ​The US Patent and Trademark Office on June 7, 2018, issued a memorandum to the Patent Examining Corps on the subject matter eligibility issues addressed by the Federal Circuit in Vanda Pharmaceuticals Inc. v. West-Ward Pharmaceuticals, 887 F.3d 1117 (Fed. Cir. 2018). According to the memorandum, examiners are directed to follow the approach outlined by the Federal Circuit in the April ruling, where Vanda’s patent claims, which cover methods for treating schizophrenia, were validated. The approach distinguished between inventions “directed” to a law of nature, which under the Mayo framework aren’t eligible for patent protection, and inventions that “apply” a law of nature, which can be protected. Further, the memorandum urges examiners to look at a patent claim as a whole because looking at claim steps individually could lead to the wrong conclusion.
TM Applicants Must Properly Cite to Web ​On June 7, 2018, the Trademark Trial and Appeal Board ruled that a registration applicant must submit a URL and access date when using website data to support its appeal because applicants are held to the same standard as a trademark examiner when using evidence from websites in disputes. In re I-Coat Co., LLC, TTAB, No. 86802467, 6/7/18. The Board stated their intention to hold applicants and examining attorneys to this standard in a ruling in May. In re Mueller Sports Medicine, Inc., 126 USPQ2d 1584, 1587 (TTAB 2018). The Board reasoned that if a webpage is submitted without a URL or date the page was accessed or printed, the evidence lacks authenticity and cannot be readily verified by the nonoffering party.
​PTAB Should Consider Arguments in Reply Brief​ ​On June, 1, 2018, the Federal Circuit struck down a decision by the Patent Trial and Appeal Board (PTAB) that affirmed a patent examiner’s obviousness rejection of a microwave vacuum-drying device because the PTAB erred in refusing to consider the applicants’ reply brief arguments that were properly made in response to the examiner’s answer. In re Durance, Fed. Cir., No. 2017-1486, 6/1/2018. The Court vacated the PTAB’s determination of obviousness and remanded for the Board to consider the applicants’ reply-brief arguments.
PTAB Releases FAQs About SAS on AIA Trials ​On June 5, 2018, the Patent Trial and Appeal Board (PTAB) released a series of “Frequently Asked Questions (FAQs)” about the implications of SAS on AIA trial proceedings. These FAQs were based upon questions received from the public and are grouped into five categories: (1) Effect of SAS on AIA proceedings generally; (2) Effect of SAS on on-going partially-instituted proceedings; (3) Effect of SAS on instituted challenges previously denied for statutory reasons; (4) Effect of SAS on future challenges that could be denied for statutory reasons; and (5) Content of institution decisions post-SAS. The FAQs are intended to provide additional information about how the agency is applying SAS to AIA trial proceedings, and the PTAB will update them periodically.
​PTAB De-Designates Idle Free and Master Image​ ​On June 1, 2018, the Patent Trial and Appeal Board (PTAB) announced the de-designation as precedential of MasterImage 3D, Inc. v. RealD Inc., Case IPR2015-00040 (PTAB July 15, 2015) (Paper 42), and the de-designation as informative of Idle Free Sys., Inc. v. Bergstrom, Inc., Case IPR2012-00027 (June 11, 2013) (Paper 26), following the Federal Circuit’s decision in Aqua Products, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017). Concurrently, the PTAB designated as informative an order from Western Digital Corp. v. SPEX Techs., Inc., Case IPR2018-00082, -00084 (PTAB Apr. 25, 2018) (Paper 13). This order provides guidance and information regarding statutory and regulatory requirements for a motion to amend in light of Federal Circuit case law, as well as the de-designation of MasterImage as precedential and Idle Free as informative at the Board.
USPTO Proposes Changes to the Trademark Rules to Mandate Electronic Filing ​The USPTO proposes to revise the rules in parts 2 and 7 of title 37 of the Code of Federal Regulations to require electronic filing through the USPTO’s Trademark Electronic Application System (TEAS) of all trademark applications based on section 1 and/or section 44 of the Trademark Act (Act), 15 U.S.C. 1051, 1126, and submissions filed with the USPTO concerning applications or registrations. These submissions include responses to Office actions, maintenance declarations, renewal applications, international applications, subsequent designations, and direct filings with the USPTO relating to extensions of protection through the international registration system. In addition, the proposed revisions to the rules would require the designation of an email address for receiving USPTO correspondence concerning these submissions.
Boilerplate Language Doesn’t Save D Three’s Infringement Suit​  ​Writing that expresses a generally accepted opinion or belief, or that is standardized for use as clauses in patent applications, is not sufficient to show adequate disclosure pursuant to the written description requirement in 35 USC § 112(a). D Three Enters., LLC v. SunModo Corp., Fed. Cir., No. 17-1909, (5/21/18). The Federal Circuit ruled that language in D Three's old application to patent a waterproof device that goes on a roof was boilerplate and didn’t apply to their later patents for related inventions. Therefore, the old application’s priority date could not apply, resulting in D Three losing its patent infringement suit against SunModo.
​“The Krusty Krab” Fictional Restaurant from Spongebob Squarepants is a Trademark ​Specific elements from within a television show – as opposed to the title of the show itself - may receive trademark protection, the Fifth Circuit held May 22, 2018. Viacom Int’l, Inc. v. IJR Capital Invs., LLC, 2018 BL 181373, 5th Cir., No. 17-20334, 5/22/18. IJR took steps to open seafood restaurants using the name “The Krusty Krab”; the fictional fast food restaurant “The Krusty Krab” plays a prominent role in Viacom’s immensely popular animated series “Spongebob Squarepants”. The USPTO granted IJR’s trademark application before Viacom filed suit asserting common-law trademark infringement. The district court held that Viacom established ownership of the mark through sales and licensing and IJR appealed. The Fifth Circuit affirmed the district court, likening the unregistered mark to the General Lee car from “The Dukes of Hazzard” or the Daily Planet newspaper and Kryptonite from the Superman stories, all of which received trademark protection because of the central role those elements played in those franchises.
SAP America Successfully Attacks Financial Analysis Patent ​Financial data analysis techniques that are “[g]roundbreaking, innovative, or even brilliant,” and that may be an advancement in the financial field, remain patent-ineligible subject matter because they are directed to abstract ideas, the Federal Circuit held May 15, 2018. SAP Am., Inc. v. InvestPic, LLC, 2018 BL 171387, Fed. Cir., No. 17-2081, 5/15/18. The Court distinguished InvestPic’s math-based patent from the math-based patents in McRO v. Bandai and Thales Visionix v. U.S. because the claims in those patents resulted in a physical or tangible improvement; InvestPic’s claims focus on “an improvement in wholly abstract ideas.”
Iancu Asks Congress to Extend Patent Office Fee-Setting Authority  ​On May 22, 2018, United States Patent & Trademark Office Director Iancu testified before the House Judiciary Committee during an oversight hearing on the USPTO. He asked Congress to continue to give USPTO access to its collected fees so that the agency can maintain a budget that “maintains the work force we need and that improves operations.” The current fee-setting authority, which will expire in September of this year, allows the agency to efficiently and cautiously adjust user fees, as needed, to recoup operational costs and drive effective operations.
Proposed Amendments to Regulations Governing the Group Registration of Serials ​The Copyright Office has published notices of proposed rulemaking to update its regulations governing group registration of serials and newsletters. Among other things, the proposed rules will require applicants to file an online application rather than a paper application, and upload a complete digital copy of each issue through the electronic registration system instead of submitting it in physical form. The rule would also specify that registration deposits will not satisfy the copyright owner’s separate obligation to deposit copies of works for the benefit of the Library of Congress. The proposed rule would instead require copyright owners to provide complimentary subscriptions to serials and newsletters that the Library determines are important for its collections.
USPTO Seeks Nominations for Patent and Trademark Advisory Committees ​The United States Patent and Trademark Office (USPTO) is seeking nominations to fill upcoming vacancies for the Patent Public Advisory Committee (PPAC) and the Trademark Public Advisory Committee (TPAC). Nominations must be postmarked or electronically transmitted on or before July 6, 2018. The committees were created in 1999 through Patent and Trademark Office Efficiency Act to advise the Secretary of Commerce, as well as the Under Secretary of Commerce for Intellectual Property and Director of the USPTO on the management of patent and trademark operations including goals, performance, budget, and user fees. Each committee has nine voting members who are appointed by, and serve at the pleasure of, the Secretary of Commerce. Each member serves a three-year term.
USPTO Announces TC 2800 Circuits Customer Partnership Meeting ​The USPTO’s TC 2800 Circuits Customer Partnership meeting will be held June 13, 12:30 – 4:30 p.m. ET, at the USPTO headquarters in Alexandria, Virginia, their regional offices, and remotely by WebEx. The meeting will cover trends and initiatives in the circuits area, cover WebEx interview capabilities, and brainstorm topics for future discussions. The circuits workgroup examines technology areas related to electrical power generation and transmission, protection systems, switches, connectors, motors, conductors and insulators, electrical device housings and mounting assemblies, electrical power regulation and conversion, miscellaneous nonlinear and digital logic circuits, radio wave antennas, and musical instruments. The event is free and open to the public. The deadline to register is May 21.
Federal Circuit Affirms Alien-Venue Rule ​Foreign entities such as Taiwan-based HTC Corp. are subject to suit in any US federal court, the Federal Circuit held May 9, 2018. In re HTC Corp., Fed. Cir., No. 18-130, 5/9/18. HTC Corp., a struggling mobile phone maker, was sued for patent infringement in the United States District Court for the District of Delaware, and sought to dismiss for improper venue under 12(b)(3), or in the alternative transfer the case to the United States District Court for the Western District of Washington under 28 USC § 1404(a) or 1406(a). The district court found venue proper, and HTC filed a mandamus petition seeking dismissal for improper venue. The Federal Circuit affirmed the district court’s decision, rejecting HTC’s argument that the Federal Courts Jurisdiction and Venue Clarification Act of 2011 had altered the alien-venue rule.
Senate Judiciary Committee Approves Marrakesh Treaty Implementation Act  ​On May 10, 2018, the Senate Judiciary Committee approved the Marrakesh Treaty Implementation Act (S. 2559), a bill to implement the Marrakesh Treaty, unanimously by a vote of 20-0. The United States signed the treaty in October 2013 to facilitate access to published works for blind, visually impaired, or otherwise print disabled persons. If passed, the legislation would make available an additional 350,000 accessible books for people with print disabilities living in the United States. Also, the treaty creates an international copyright exception that would allow authorized entities (including libraries) to make accessible copies of works and distribute them across international borders.
USPTO Opens Sign-Ups for July STEPP  ​The USPTO has opened sign-up for their July 17-19 Stakeholder Training on Examination Practice and Procedure (STEPP) Attorney/Agent three-day course "Examination Practice and Procedure." The USPTO offers this in-person training to members of the public based on courses available to their employees. The course will be held in the USPTO Silicon Valley Regional Office in San Jose, California, and has been approved for MCLE credit in California. This training, which will make use of statutes, rules, and guidelines relevant to practicing before the USPTO, is limited those who have passed the patent bar. The USPTO will give priority to those who have recently passed the patent bar.
​USPTO Announces Notice of Proposed Rulemaking for Claim Construction Standard used in PTAB Proceedings  ​Today, the United States Patent and Trademark Office, issued a Notice of Proposed Rule Making relating to the Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board (PTAB). The proposed changes would impact the standard for claim interpretation in inter partes review (IPR), post-grant review (PGR) and the transitional program covered for business method patents (CBM) proceedings before PTAB. In particular, the Office proposes to replace the broadest reasonable interpretation (BRI) standard for construing unexpired patent claims and proposed claims in these trial proceedings with a standard that is the same as the standard applied in federal district courts and International Trade Commission (ITC) proceedings.​
Patent Application for Dog Harness Rejected for Not Listing Co-Inventor ​An inventor’s patent application for a “dog mobility device” was properly rejected under 35 USC § 102(f) by the Patent Trial and Appeal Board because the inventor failed to list his co-inventor, the Federal Circuit held May 3, 2018. In re: VerHoef, Fed. Cir., No. 17-1976, 5/3/18. The USPTO rejected the application and the Federal Circuit agreed, explaining that Dr. Lamb provided the idea for an essential feature of the invention, thereby making her a joint inventor, despite VerHoef’s claim that he maintained “intellectual domination and control” over the invention. VerHoef began work on the invention after his dog developed difficulty walking after surgery, and commercially-available harnesses were insufficient. However, through the course of several meetings with his veterinarian, Dr. Alycia Lamb, VerHoef developed a successful homemade harness that increased his dog’s mobility. Initially filing as co-inventors, a falling out between VerHoef and Lamb led the former to file an application as the sole inventor of the harness.
​“Stolen Data” from Casino Not a Trade Secret​ ​The Supreme Court of Nevada, on May 3, 2018, held that under Nevada’s Uniform Trade Secrets Act (NTSA) a defendant’s acquisition of information by improper means does not preclude the defendant from demonstrating that the information in question is also readily ascertainable by other persons using proper means. MEI-GSR Holdings, LLC v. Peppermill Casinos, Inc., Nev., No. 70319, 5/3/18. An employee of Peppermill Casino, Inc. (Peppermill) went to Grand Sierra Resort and Casino, owned by MEI-GSR Holdings, LLC (GSR) and was caught accessing GSR’s slot machines to obtain their “par values.” GSR sued Peppermill under the NTSA, but a jury returned a verdict in favor of Peppermill because GSR failed to demonstrate that the “stolen” data was “not readily ascertainable by proper means,” meaning the data was not a trade secret. GSR appealed for another trial, stating that Peppermill should not be permitted to argue that there’s no liability because they could have obtained the data by other means.
Music Modernization Act Unanimously Passes House of Representatives ​On April 25, 2018, the House of Representatives approved by a vote of 415-0 the Music Modernization Act (H.R. 5447), bipartisan legislation that updates several key provisions of U.S. copyright law regarding music licensing. The bill aims to reflect how modern digital music services operate by creating a blanket licensing system to quickly license and implements uniform rate setting standards to be used by the Copyright Royalty Board for all music services. It also ensures that record producers, sound engineers, and other creative professionals receive compensation for their work. The bill is overwhelmingly supported by the music industry.
Software Firm Loses Bid to Revive Patent Case Against Citrix ​01 Communique Laboratory, Inc., a small Canadian software company, lost its chance to revive a US patent infringement suit seeking millions in damages from multinational software company Citrix Systems, Inc. On April 26, 2018, the Federal Circuit denied patent owner 01 Communique Laboratory Inc.’s appeal, saying that the trial court was right to deny its request for a new trial. During the trial, the jury found that Citrix did not infringe one of its patents, rejecting 01 Communique’s claim that the trial court improperly allowed Citrix to compare its GoToMyPC product to a prior invention, rather than to Communique’s patent. Citrix in its noninfringement argument compared GoToMyPC to Communique’s patent, and also made a separate invalidity argument comparing the patent to a prior invention. The trial court judge instructed the jury to keep the arguments distinct, and that was the proper approach, according to the appeals court.
USPTO Hosts Webinar Explaining Revised Guidance After Berkheimer v. HP, Inc. ​On May 8, 2018, the USPTO Deputy Commissioner for Patent Examination Policy, Bob Bahr, will discuss the USPTO’s recently-issued memorandum implementing changes to examination procedure in view of the U.S. Court of Appeals for the Federal Circuit’s decision in Berkheimer v. HP, Inc. This judicial decision provided clarification on subject matter eligibility analysis. The webinar should be useful for anyone prosecuting patent applications or with an interest in statutory compliance with 35 U.S.C. § 101. No registration is necessary to attend. More information, including how to attend the webinar, is available on the USPTO event page which can be found by clicking the link in the header.
USTR Adds Canada to Priority Watch List for IP Enforcement Failures ​On April 27, 2018, Office of the United States Trade Representative (USTR) released its 2018 Special 301 Report, which identifies US trading partners that do not adequately or effectively protect and enforce IP rights or otherwise deny market access to U.S. innovators and creators that rely on protection of their IP rights. The Report calls on U.S. trading partners to address IP-related challenges with a special focus on the countries identified on the Watch List and Priority Watch List. Of note is Canada, which has been downgraded from the Watch List to the Priority Watch List this year for failing to make progress on overcoming important IP enforcement challenges. Other countries on the Priority Watch List include: China, Indonesia, India, Algeria, Kuwait, Russia, Ukraine, Argentina, Chile, Colombia, and Venezuela.
PTAB Releases Guidance on the Impact of SAS v. Iancu on AIA Trial Proceedings​ ​The PTAB has released guidance on the impact of SAS on AIA trial proceedings following the Supreme Court’s decision in SAS Institute Inc. v. Iancu, 2018 WL 1914661, (U.S. Apr. 24, 2018). As required by the decision, the PTAB will institute as to all claims or none. If the PTAB institutes a trial, the PTAB will institute on all challenges raised in the petition. For pending trials in which a panel has instituted trial on all of the challenges raised in the petition, the panel will continue with the proceeding in the normal course. By contrast, for pending trials in which a panel has instituted trial only on some of the challenges raised in the petition the panel may issue an order supplementing the institution decision to institute on all challenges raised in the petition.
Improved Functionality for Global Dossier ​The Global Dossier includes new improvements that affect the citation and patent family lists. These include a new quick view panel to display abstract and classification for each reference, the addition of relevancy data (relevancy indication, claims, and relevant sections) for each reference, and other features. The Global Dossier is a set of business services that provides IP stakeholders free, secure, one-stop access to the dossier information of all applications that comprise a family and that have been filed in participating IP offices. Learn more about the program on the Global Dossier page of the USPTO website. 
Supreme Court Upholds Constitutionality of Inter Partes Review
​Inter Partes Review (IPR) does not violate Article III of the Constitution the Supreme Court held. Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, U.S., No. 16-712, 4/24/2018. The Court explained that prior Supreme Court decisions that recognize patent rights as the private property of the patentee do not contradict this conclusion. Justice Breyer wrote a concurring opinion, joined by Justice Ginsburg and Justice Sotomayor. Justice Gorsuch wrote a dissenting opinion, joined by Chief Justice Roberts, arguing that patents should not be construed as public rights, but as personal rights.
E*Trade Succeeds in Attacking Patent Owned by Droplets ​A patent must contain a specific reference to each prior-filed application to be entitled to those applications’ earlier filing dates, the Federal circuit held on April 19, 2018. Droplets, Inc. v. E*Trade Bank, Fed. Cir., No. 16-2504, 4/19/18. E*Trade filed a petition for inter partes review of a patent for interactive link delivery owned by Droplets, Inc (Droplets). The Patent Trial and Appeal Board (PTAB) found that priority was not claimed properly, and invalidated the patent, and Droplets appealed to the Federal Circuit. Noting that incorporation by reference cannot satisfy this statutorily mandated specific reference requirement, the Court agreed with the Patent Trial and Appeal Board’s decision that Droplets’ patent was invalid for obviousness because the patent failed to expressly enumerate the full chain of priority to avoid fully-invalidating prior art.
USPTO Issues Request for Comment on Subject Matter Eligibility Guidance ​The U.S. Patent and Trademark Office on April 20, 2018, issued a request for comment concerning its subject matter eligibility guidance, and particularly its guidance in the Berkheimer memorandum to the Patent Examining Corps. 83 Fed. Reg. 17536. The Federal Circuit found that whether a claim element, or combination of elements, represents well-understood, routine, conventional activities to a skilled artisan in the relevant field is a question of fact. The USPTO implemented this decision in a memorandum recently issued to the Patent Examining Corps (the Berkheimer memorandum). The memorandum is available to the public on the USPTO's internet website.
​Director Iancu Appears Before Senate Judiciary Committee​ ​USPTO Director Andrei Iancu on April 18, 2018, testified at an oversight hearing of the Senate Judiciary Committee. Iancu testified that he is prepared to work with Congress, stakeholders, and the public to reduce the uncertainty around patent eligibility in the wake of the Supreme Court’s decisions in Bilski, Mayo, Myriad, and Alice. However, he also took pointed questions on post-grant review, the Department of Commerce’s “Shared Services” initiative, and the Marrakesh Treaty to facilitate access to published works for the visually impaired. Director Iancu’s testimony touched on other pressing issues such as patent pendency, patent quality, and examiner training; a video replay of the hearing and Iancu’s written statement can be seen by following the link in the header.
Dismissal for Lack of Standing Is “Tantamount to a Judgment on the Merits” ​Defendant-appellees Microsoft Corp. and AT&T Corp. were properly determined to be “prevailing parties” for the purposes of 35 U.S.C. § 285, because the district court’s dismissal with prejudice of plaintiff-appellant Keith Raniere’s case for lack of standing is “tantamount to a judgment on the merits,” the Federal Circuit held April 18, 2018. Keith Raniere v. Microsoft Corporation, AT&T Corp., Fed. Cir., No. 2017-1400, 4/18/2018. A district court may award attorney’s fees to the prevailing party in “exceptional cases” under § 285. The Court explained that the Supreme Court’s recent decision in CRST Van Expedited, Inc. v. EEOC, which held that a favorable judgment on the merits is not necessary for a defendant to be deemed a prevailing party for purposes of statutory fee-shifting, supports the conclusion that appellees were “prevailing parties.”
NIST Final Rule Updates Rights to Federally Funded Inventions​ ​The National Institute of Standards and Technology (NIST) on April 13, 2018, issued a final rule on “Rights to Federally Funded Inventions and Licensing of Government Owned Inventions,” according to a Federal Register notice. 83 Fed. Reg. 15954. This final rule reduces regulatory burdens by clarifying electronic reporting while updating certain sections to conform with changes in patent laws and streamlining the licensing application process for some Federal laboratory collaborators. It also makes technical corrections, clarifies the role of provisional patent application filing and explains a unique situation that may be appropriate for a Determination of Exceptional Circumstances. For further details, read the notice by clicking the link in the header.
​Patent Lawsuit Against Google’s Cloud Messaging Services Continues ​A district court order, and important win by Alphabet Inc.’s Google in a patent infringement lawsuit by Simple Air Inc., was vacated by the Federal Circuit on March 12, 2018. SimpleAir, Inc. v. Google LLC, Fed. Cir., No. 16-2738, 3/12/18. The district court had dismissed SimpleAir’s complaint as barred by claim preclusion and the Kessler doctrine because in two earlier cases a court ruled Google’s Cloud Messaging (GCM) product didn’t infringe related Simple Air patents. The Federal Circuit ruled that the district court’s ruling was a mistake because “it is the claims of the patent which define the invention,” and noted that the district court never analyzed any claims when finding claim preclusion.
​Music Modernization Act Approved by House Judiciary Committee​ ​On March 11, 2018, the House Judiciary committee approved by a vote of 32-0 the Music Modernization Act (H.R. 5447), bipartisan legislation that updates several key provisions of U.S. copyright law regarding music licensing. “This legislation, which is the first major update to our music licensing laws in decades, brings early 20th century music laws for the analog era into the 21st Century digital era” noted House Judiciary Committee Chairman Bob Goodlatte (R-VA). The bill includes the creation a blanket licensing system to quickly license and pay for musical work copyrights, the implementation of uniform rate setting standards to be used by the Copyright Royalty Board for all music services, and other requirements intended to ensure artists and copyright owners are paid without having to resort to litigation.
Public Hearing on China Tariffs – May 15  ​The Office of the U.S. Trade Representative, on April 6, 2018, determined that the acts, policies, and practices of the Government of China related to technology transfer, intellectual property, and innovation are unreasonable or discriminatory and burden or restrict U.S. commerce. The Office is seeking public comment and will hold a public hearing regarding a proposed determination on appropriate action in response to these acts, policies, and practices. Specifically, the Section 301 Committee will convene a public hearing in the main hearing room of the U.S. International Trade Commission, beginning at 10:00 a.m on May 15, 2018. Read the full notice by clicking the link in the header.​
Trademark Board Sets Rule for Comparing Some Design Marks​ ​On April 3, 2018, the Trademark Trial and Appeal Board stated a rule for comparing a standard character mark to a mark that incorporates both words and designs. In re Aquitaine Wine USA, LLC, TTAB, No. 86928469, 4/2/18. When comparing two marks for Section 2(d) purposes, the board will consider variations of the depictions of the standard character mark only with regard to “font style, size, or color” of the “words, letters, numbers, or any combination thereof.” The rights in a standard character mark reside in the wording per se, thereby generally offering broader protection. Concurring administrative judge Ritchie disagreed with the rule, explaining that the board should not categorically exclude the depiction of designs from its analysis of standard character marks.
​Apple’s Invalidation of Patent Owned by DSS Overturned​ ​The Federal Circuit, on March 23, 2018, reversed a pair of Patent Trial and Appeal Board (PTAB) decisions where the board found six claims of a patent by DSS unpatentable as obvious. DSS Tech. Mgmt. v. Apple Inc., Fed. Cir., No. 16-2523, 3/23/18. The patent is directed to an inexpensive and energy-efficient wireless communication network between portable electronic devices. Apple had petitioned for IPR after DSS sued Apple for infringement. While the PTAB found that the combination of two pieces of prior art rendered the challenged claims obvious, the Federal Circuit found that the PTAB had not provided sufficient explanation for its conclusions.
​USPTO Updates Fee Schedule ​The fee schedule provides information and fee rates for USPTO's products and services. All payments must be paid in U.S. dollars for the full amount of the fee required. The following PCT fees to foreign offices have been changed: 1704 - International search (EPO) – fee increase from $2,202 to $2,207, effective April 1; 1709 - International search (KIPO) – fee increase from $1,134 to $1,218, effective April 1; and 1715 - International search (ILPO) – fee increase from $995 to $1,009, effective March 1.
PTAB Designates Decision as Informative ​The Patent Trial and Appeal Board designated as informative a decision involving 35 U.S.C. § 325(d). Kayak Software Corp. v. International Business Machines Corp., Case CBM2016-00075 (PTAB Dec. 15, 2016) (Paper 16). In this decision, the Board exercised its discretion under 35 U.S.C. § 325(d) and declined to institute review of the claims under obviousness grounds because the record indicated that the cited prior art was previously presented to and extensively considered by the Office during prosecution. The Board further was not persuaded that the incremental addition of an already considered reference was sufficient to avoid § 325(d), but explained that the presence of certain factors, including a limited prosecution history, clear errors in the prosecution, and/or the cursory consideration of the prior art may weigh against the exercise of discretion to deny institution under § 325(d).
CAFC Finds No Fair Use in Google’s Use of Copyrighted Programming Language
​The Federal Circuit issued an opinion in what may be the last chapter in a long-standing copyright dispute between tech giants Oracle and Google. Oracle America Inc. v. Google Inc., Fed. Cir., No. 17-1118, 3/27/2018. At first trial, Oracle brought suit against Google for their unauthorized use of Java software, a programming language which Google used to power its Android smartphone software. In 2016, a jury determined that Google’s unauthorized use of 37 packages of Oracle’s Java API packages in its Android operating system was legal under copyright law's fair use doctrine. Here, the Federal Circuit reversed, concluding that “Google’s use of the Java API packages was not fair as a matter of law.”
AIPLA Files Amicus Brief in Attorney’s Fees Case ​On March 19, 2018, AIPLA filed an amicus brief arguing that the USPTO has incorrectly interpreted the Lanham Act as requiring an award of attorneys' fees, win or lose, to the agency in district court proceedings reviewing decisions of the Trademark Trial and Appeal Board. B.V., v. The United States Patent and Trademark Office, 4th Cir., No. 17-2459, amicus brief filed 3/19/2018. On its face, the statutory phrase “all expenses of the proceeding” found in Section 21(b)(3), 15 U.S.C. 1071(b)(3), does not include attorneys’ fees, which are addressed in Section 35 of the Lanham Act, 15 U.S.C. § 1117. Section 21(b)(3) neither defines “expenses” nor otherwise indicates that the word includes reimbursement of PTO fixed costs. The Supreme Court has held that interpretations of the law that depart from common law must be supported by clear and explicit language that Congress intended to do so, and there is no such support for the PTO interpretation of this language.
​Patent Trial and Appeal Board Redesigns Webpages ​The Patent Trial and Appeal Board has launched newly redesigned webpages. Users can find a more intuitive and streamlined user experience with clarified content and simplified navigation. The webpages have been optimized for accessibility and mobile viewing, meaning you can view entire webpages on desktop, mobile, and tablet devices. This means that several commonly-used webpages have updated URLs, and therefore old links and bookmarks will redirect to the new page. To view the updated webpages, please click the link in the header.
​Expansion of the State Intellectual Property Office (SIPO) in China's Government Overhaul  ​On March 17, 2018, the 13th National People's Congress of China approved the State Council's proposal of an Institutional Reform Plan. Under the plan, the number of ministerial-level organizations under the State Council will be reduced by eight, and the number of vice ministerial-level organizations will be reduced by seven. Also, the State Intellectual Property Office (SIPO) is expanded by adding the trademark responsibilities of SAIC and the geographic indicators responsibilities of AQSIQ. The new SIPO will be managed under the new National Markets Supervision Administration. However, the responsibility for copyrights will remain with the National Copyright Administration of China.
​Federal Circuit: PTAB Not Required to Consider New Evidence Presented at Oral Argument​ ​​The Federal Circuit (CAFC) on March 19, 2018, affirmed a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) proceeding related to a remand determination in a dispute over CPUs between Dell Inc. (Dell) and Acceleron, LLC (Acceleron). During the underlying IPR proceeding, Dell presented a new argument and evidence for the first time at oral argument. Acceleron appealed because it was denied the opportunity to respond, and the Federal Circuit remanded, setting out the requisite procedures that would apply if the PTAB considers Dell’s new evidence. On remand, the PTAB refused to consider Dell’s new argument, and Dell reasons that the Board’s failure to consider their argument was contrary to the Federal Circuit’s remand order. However, the court disagreed with Dell, explaining that the Board was not required to consider Dell’s new evidence.
​USPTO Unveils New Patent Cover Design at South by Southwest (SXSW) ​ ​The United States Patent and Trademark Office unveiled the new design of the patent grant cover during a special ceremony at the South by Southwest (SXSW) Interactive Festival in Austin, Texas. The redesigned cover will debut on patent number 10 million which is expected to issue sometime in 2018. The patent grant cover represents the physical document issued to inventors upon the granting of a U.S. patent. The 225-plus year history of the patent cover has seen fewer than a dozen basic designs since President George Washington granted the first patent in 1790. The ceremony, which was co-sponsored by the National Inventors Hall of Fame (NIHF), also featured remarks from Ethernet inventor, 2007 NIHF inductee, and laureate of the National Medal of Technology and Innovation, Robert M. Metcalfe and IBM Master Inventor, Susann Keohane, IBM Global Research Leader for the Aging Initiative.
The PTAB “Chat with the Chief” Webinar is Tuesday, March 13  ​The Patent Trial and Appeal Board (PTAB) is hosting its first 2018 ““Chat with the Chief” webinar next week, Tuesday, March 13 from noon to 1 p.m. ET. Chief Judge David Ruschke will discuss “New PTAB Studies in AIA Proceedings: Expanded Panels and Trial Outcomes for Orange Book Listed Patents.” Specifically, the Chief Judge will present information regarding the results of these two new studies and answer questions directly related to expanded panels in AIA trial proceedings. The webinar is free and open to everyone to attend. More information, including the WebEx access information, can be found at the PTAB "Chat with the Chief" Webinar Series webpage on the USPTO website.
New USPTO Examination Guide on Class Headings  ​The USPTO recently issued a new examination guide on the class headings and explanatory notes of the international trademark classes under the Nice Classification, 11th edition, version 2018. The updated class headings became effective Jan. 1. See 37 C.F.R. §6.1. To see the guide please go to the trademark examinations guides webpage by clicking the header. Questions about the guide may be directed to
AIPLA Supreme Court Brief Supports Awarding Foreign Lost Profits​  ​A damages award for infringement under 35 U.S.C. § 271(f) should include foreign lost profits when the harm was proximately caused by domestic infringement, AIPLA argued in a Supreme Court brief filed March 5, 2018. WesternGeco LLC v. ION Geophysical Corp., No. 16-1011, amicus brief filed 3/5/2018. Filed in support of neither party, the brief argues that the Supreme Court should reverse the Federal Circuit and the categorical rule it established in this case against recovering foreign lost profits. The brief also maintains that including harm from foreign conduct for full compensation under § 284 does not impermissibly extend U.S. law extraterritoriality.
​Nalco’s Patent Complaint Improperly Dismissed on 12(b)(6) Motion ​Nalco Company’s patent infringement complaint was improperly dismissed by the district court on a 12(b)(6) motion, the Federal Circuit said on February 27, 2018. Nalco Co. v. Chem-Mod, LLC, Fed. Cir., No. 17-1036, 2/27/18. The patent describes a cheap method for the removal of toxic elemental mercury from coal-plant exhaust. The district court granted Chem-Mod’s motion to dismiss after finding that Nalco’s complaint failed to state any actionable claims. The Federal circuit reversed and reinstated Nalco’s various infringement claims finding it was inappropriate for the district court to resolve the factual disputes related to those claims at the 12(b)(6) stage.
USPTO’s Patent Quality Chat Webinar Covers § 101 
​The USPTO’s Patent Quality Chat webinar continues March 13, from noon – 1 p.m. ET, with “Subject Matter Eligibility: Guidance & Examination Resources”. The USPTO’s Deputy Commissioner for Patent Examination Policy Bob Bahr will discuss the resources the USPTO provides on subject matter eligibility, with an emphasis on the latest revision of the Manual of Patent Examining Procedure from January 2018. This webinar will be especially helpful for those prosecuting patent applications and/or with an interest in statutory compliance with 35 U.S.C. § 101. More information on how to attend is available on the event page of the USPTO website. Click on the header to learn more.
Federal Circuit Reverses and Vacates Rule 12(b)(6) Dismissal 
​A patent for designing, creating, and importing data into a viewable form on a computer was improperly found patent-ineligible on a motion to dismiss, the Federal Circuit held February 14, 2018. Aatrix Software, Inc. v. Green Shades Software, Inc., Fed. Cir., No. 17-1452, 2/14/18. The court vacated the trial court’s grant of the motion to dismiss, and reversed the trial court’s denial of Aatrix’s motion for leave to file a second amended complaint. The court explained that because there were factual disputes as to whether the patent had an inventive concept.
Second Circuit Asserts Limit to Fair Use in News Clippings Case  ​The fair use doctrine does not protect TVEyes, Inc.’s news clipping service from liability for copyright infringement, according to the United States Court of Appeals for the Second Circuit. Fox News Network, LLC v. TVEyes, Inc., 2d Cir., No. 15-3885, 2/27/18. is a global search engine for broadcast television and radio which continuously records audiovisual content into a database, and enables its clients, for a monthly fee, to view, archive, download, and email to others 10-minute clips. The court found that while the services are transformative, because the re-distribution makes available virtually all of Fox’s content, and because this deprives Fox of revenue that belongs to it, TVEyes pushed past the boundaries of fair use.
​Client’s Communications with Patent Agent Are Privileged According to Texas Supreme Court ​ ​A client’s communications with her registered patent agent are privileged under Texas Rule of Evidence 503, according to the Supreme Court of Texas. In re Silver, 2018 BL 60512, Tex., 16-0682, 2/23/18. In a contractual dispute between Andrew Silver and Tabletop media, LLC, the trial court ordered Silver to produce emails between Silver and his patent agent. Silver contended that those communications were protected by attorney-client privilege, but the trial court and lower court disagreed. The Texas Supreme Court reversed, saying that “a client’s communications with his registered patent agent, made to facilitate the agent’s provision of authorized legal services to the client, are privileged under Rule 503.” This decision is consistent with an AIPLA amicus brief filed in this case.
Federal Circuit Upholds Thales Motion Tracking Patent ​The Federal Circuit, on February 6, 2018, affirmed a Patent Trial and Appeal Board (PTAB) final written decision which upheld the validity of Thales Visionix, Inc.’s patent for the technology underlying the F-35 fighter plane’s helmet-mounted display. The court found that there was substantial evidence to support the PTAB’s determination that the claims in question in the patent were not obvious in combination with two other prior art references.
Medicines Co. AngioMax Patents Could Face Invalidation​  ​The Federal Circuit, on February 6, 2018, found that The Medicines Co.’s patents related to its Angiomax blood-thinning drug could face invalidation because the terms of a distribution agreement the company had “constituted a commercial offer for sale” before the patent applications were filed. Medicines Co. v. Hospira, Inc., Fed. Cir., No. 14-1469, 2/6/18. Because the district court erred in concluding that the distribution agreement was not a commercial offer for sale, the court reversed and remanded to the lower court.
PTAB Improperly Declines to Apply “Prosecution Disclaimer” ​The Patent Trial and Appeal Board (PTAB) improperly declined to apply appellant’s “prosecution disclaimer” during an inter partes review proceeding, the Federal Circuit held February 20, 2018. Arendi S.A.R.L. v. Google LLC, Motorola Mobility LLC, Fed. Cir., No. 2016-1249, 2/20/2018. The PTAB found Arendi S.A.R.L.’s (Arendi) patent relating to a computerized method for identifying and substituting information in an electronic document to be unpatentable for obviousness, but in doing so refused to credit the statements made by the patent examiner in the Notice of Allowance as a “prosecution disclaimer”. The Federal Circuit disagreed, explaining that the PTAB should consult the entire prosecution history of the patent. The PTAB alternatively held that even if the prosecution disclaimer were accepted, the claims were still unpatentable for obviousness, to which the Federal Circuit agreed, affirming the unpatentability decision.
​Trademark Dispute over NUTRITEK Will Go to Trial​ ​The United States District Court of the Western District of Wisconsin on February 9, 2018, denied a motion for summary judgement in a dispute over the trademark NUTRITEK. Foremost Farms USA, Coop. v. Diamond V Mills, Inc., 2018 BL 45179, W.D. Wis., No. 16-551, 2/9/18. The defendant in the trademark infringement suit, Diamond V Mills, Inc. (Diamond V), moved for summary judgment, asking the court to decide as a matter of law that there is no likelihood of confusion between the parties’ products because they are sold in distinct markets. The court disagreed, stating that Foremost Farms USA, Cooperative’s (Foremost) evidence brings into questions whether they are in the same business, and if established, could convince a reasonable jury that confusion is likely.
National Medal of Technology and Innovation (NMTI) ​​​The United States Patent and Trademark Office (USPTO) is seeking nominations for the 2018 National Medal of Technology and Innovation (NMTI). The medal is the country's highest award for technological achievement and is presented by the President of the United States. The medal is awarded to individuals, teams (up to four individuals), companies, or divisions of companies for their outstanding contributions to America's economic, environmental and social well-being. The medal highlights those who have made a national impact through technological innovation, commercialization, and/or strengthening the nation’s technological workforce. The medal also seeks to inspire future generations of Americans to prepare for and pursue technical careers that keep the United States at the forefront of global technology and economic leadership. The deadline for nominations is April 6, 2018.
Copyright Office to Amend Eligibility Requirements for the Single Application ​ ​On December 16, 2017, the U.S. Copyright Office released a new version of the Single Application, an online registration option that allows a single author to register a claim in one work that is solely owned by the same author and is not a work made for hire. The new Single Application includes enhanced features that should improve the user experience, increase the efficiency of the examination, and reduce the correspondence rate for these types of claims. To coincide with these technical upgrades, the Office is now proposing to amend its regulations to clarify the eligibility requirements for the Single Application, and codify certain practices set forth in the Compendium of U.S. Copyright Office Practices, Third Edition. Comments on the proposed rule must be made in writing and must be received in the U.S. Copyright Office no later than March 8, 2018.

Rejection of Patent for Drain Valve Reversed by CAFC  ​The Federal Circuit on February 12, 2018, reversed in part and vacated in part the Patent Trial and Appeal Board’s (PTAB) determination that a patent for a drain valve was obvious and anticipated. In re Hodges, Fed. Cir., No. 2017-1434, 2/12/2018. The Court determined that the PTAB’s anticipation findings were unsupported by substantial evidence, and their obviousness finding did not have an “adequate evidentiary basis”. In his dissent, Judge Wallach explained that the majority exceeded its appellate authority by reversing one of the PTAB’s two anticipation findings in lieu of remanding to the agency for additional investigation.
​Notice of Public Hearings on Access Controls on Copyrighted Works  ​The United States Copyright Office will be holding public hearings as part of the seventh triennial rulemaking proceeding under the Digital Millennium Copyright Act (``DMCA'') concerning possible exemptions to the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. The public hearings will be held in April 2018 in Washington, DC and Los Angeles. Parties interested in testifying at the public hearings are invited to submit requests to testify. The public hearings in Washington, DC are scheduled for April 10, 11, 12, and 13, 2018, on each day from 9:00 a.m. to 5:00 p.m. The public hearings in Los Angeles are scheduled for April 23, 24, and 25, 2018, on each day from 9:00 a.m. to 5:00 p.m. Requests to testify must be received no later than 11:59 p.m. Eastern time on February 21, 2018.
​Senate Confirms Andrei Iancu as Next Director of U.S. Patent and Trademark Office​ ​On February 5, 2018, the United States Senate confirmed the appointment of Andrei Iancu as the next Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office (USPTO). Iancu currently serves as the managing partner of Irell & Manella LLP's Los Angeles firm and will begin his new role at USPTO headquarters located in Alexandria, VA.
USPTO Issues Revision of 9th Edition of Manual of Patent Examining Procedure  ​On January 21, 2018, the United States Patent and Trademark Office (USPTO) issued a revision of the ninth edition of the Manual of Patent Examining Procedure (MPEP). 83 Fed. Reg. 4473. The revision provides updated information on patent examination policy and procedure. Specifically, it includes changes that became effective in August 2017 or earlier. The MPEP is published to provide patent examiners and the public with a reference work on the practices and procedures relative to the prosecution of patent applications before the USPTO. The MPEP contains instructions to examiners, as well as other material in the nature of information and interpretation, and outlines the current procedures which the examiners are required or authorized to follow in appropriate cases in the normal examination of a patent application.
Senate Schedules Confirmation Vote for USPTO Director Nominee for Feb. 5, 2018  ​Senate Majority Leader Mitch McConnell announced the schedule for the vote on the confirmation of Mr. Andrei Iancu, the President’s nominee for Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. The confirmation vote is currently scheduled for 5:00 PM on Monday, February 5, 2018, and will include 30 minutes of debate prior to the vote. Mr. Iancu was unanimously approved by the Senate Judiciary Committee in December 2017, and if confirmed by the Senate, would succeed former USPTO Director Michelle K. Lee, who departed in June of last year.
PPAC Quarterly Meeting  ​The next quarterly meeting of the Patent Public Advisory Committee (PPAC) will be held on Thursday, Feb. 1, in Alexandria, Virginia. The PPAC reviews the policies, goals, performance, budget, and user fees of patent operations. Anyone can attend public sessions at the USPTO Alexandria campus or watch online. The agenda and webcast link are available at the link in the heading.
Copyright Office Seeks to Simplify Deposit Requirements for Literary Works and Musical Compositions  ​The United States Copyright Office is issuing a final rule, amending regulations that govern the deposit requirements for certain types of literary works and musical compositions. The final rule is adopted as proposed in the notice of proposed rulemaking, though the Office provides some clarification regarding the rule’s application. Under the previous regulations, two copies of the best edition were generally needed to register these types of works and to comply with the mandatory deposit requirement. Under the new rule, copyright owners will be able to satisfy both registration deposit and mandatory deposit requirements by submitting one copy of the best edition of the work. This new rule is effective February 16, 2018.
​Copyright Office Issues Final Rule on Group Registration of Photographs  ​The Copyright Office on January 18, 2018, issued a final rule concerning group registration of photographs. 83 Fed. Reg. 2542. According to the Federal Register notice, applicants using the group registration option for published or unpublished photographs will be required to use a new online application, and will be allowed to include up to 750 photographs in each claim. If an applicant attempts to use a paper application, the Office will refuse to register the claim. This new rule goes into effect February 20, 2018.
​USPTO Announces Changes in Requirements for Collective Trademarks  ​The United States Patent and Trademark Office published in the Federal Register on June 11, 2015 a final rule, which became effective on July 11, 2015, revising the Trademark Rules of Practice. This announcement reinstates three paragraphs, which were inadvertently deleted as a result of an error in the amendatory instructions. The June 11, 2015 final rule amended the introductory text of § 2.193(e)(1) to correspond with new § 2.2(n). However, the amendatory instruction inadvertently instructed that § 2.193(e)(1)(i)–(iii) be deleted. This correction revises the amendatory instruction and thereby reinstates paragraphs (i)–(iii).
​Supreme Court Will Review Damages for Foreign Lost Profits ​The Supreme Court on January 12, 2018, agreed to review the Federal circuit decision in the patent infringement action brought by WesternGeco LLC against ION Geophysical Corp (ION) under 35 U.S.C. 271(f), to review damages for foreign lost profits. WesternGeco LLC v. ION Geophysical Corp., U.S., No. 16-1011, review granted 1/12/18. The Federal Circuit affirmed that ION was liable for patent infringement for supplying components of a patented invention from the United States, to another party outside of the United States, with the intent that the combined components be reassembled in a way that would infringe the patent in question. However, a majority of a divided panel held that WesternGeco was not entitled to lost profits because US patent law bars recovery of damages for overseas infringement.
​HTC Not Liable for Infringement Due to Lack of Standing of Patentee  ​Advanced Video Technologies LLC’s (Advanced Video) suit for patent infringement against HTC was properly dismissed for lack of standing by the district court, the Federal Circuit explained in a 2-1 decision on January 11, 2018. Advanced Video Technologies LLC, v. HTC Corp., Fed. Cir., No. 2016-2309, 1/11/18. The court determined that Advanced Video did not have full ownership of the patent in question because one of the three co-inventors, Ms. Vivian Hsiun, was neither a party to the suit, nor consented to it, and Advanced Video failed to show that Ms. Hsiun’s employment agreement assigned them her ownership rights. In a dissenting opinion, Judge Newman wrote that Ms. Hsiun assigned her ownership rights to her employer by way of a clear contracts provision in her employment agreement.
Federal Circuit Updates Standard for Patent-Eligible Software  ​On January 10, 2018, the Federal Circuit affirmed a district court decision against Blue Coat Systems, Inc. (“Blue Coat”) where a jury found them liable for infringement of a computer security patent owned by Finjan, Inc. (“Finjan”). Finjan, Inc. v. Blue Coat Systems, Inc., Fed. Cir., No. 2016-2520, 1/10/2018. After trial, Blue Coat motioned for judgment as a matter of law, arguing that Finjan’s ‘844 patent, which recites a system and method for providing computer security by attaching a security profile to a downloadable, was patent-ineligible under 35 U.S.C. § 101. The district court disagreed, and the Federal Circuit in its opinion concurred, explaining that the idea is a non-abstract improvement in computer technology.
​Senator Orrin Hatch Won’t Seek Re-Election  ​Senator Orrin G. Hatch of Utah, the longest-serving Senate Republican, announced Tuesday, January 2nd, 2017, that he would retire at the end of the year. During his career, he served as the senior member and former Chairman of the Senate Judiciary Committee, and Chairman of the Senate Republican High-Tech Task Force. AIPLA bestowed the AIPLA Board of Director's Excellence Award, its highest honor, on Senator Orrin Hatch at the AIPLA 2017 Annual Meeting for his leadership on intellectual property issues over the last 40 years.
​Copyright Royalty Board Moves to All Electronic Filing  ​The Copyright Royalty Judges announced the termination of the transition period from paper filing to electronic filing using the eCRB electronic filing and case management system. Effective January 1, 2018, all parties having the requisite technological capability must file documents electronically. The CRB will not accept paper filings except filings (1) from pro se parties technologically incapable of using eCRB and (2) documents not amenable to electronic filing as described in 37 CFR § 350.5(j). Any entity obtaining an eCRB password consents to electronic delivery of all documents subsequent to a Petition to Participate. See 37 CFR § 350.5(g). The Judges refer counsel and pro se parties having an interest in CRB proceedings to 37 CFR § 350.5.