Patents & Inventions Law & Lawyers

A patent is a right granted for any device, substance, method or process which is new, inventive and useful.

A patent is legally enforceable and gives the owner the exclusive right to commercially exploit the invention for the life of the patent. This is not automatic-you must apply for a patent to obtain exclusive rights to exploit your invention.

There are two types of patents in Australia;

  • a standard patent gives long-term protection and control over an invention for up to 20 years.
  • an innovation patent is a relatively fast, inexpensive protection option, lasting a maximum of 8 years. The innovation patent replaced the petty patent on 24 May 2001.

Patents give effective protection if you have invented new technology that will lead to a product, composition or process with significant long-term commercial gain.

In return, patent applicants must share their know-how by providing a full description of how their invention works. This information becomes public and can provide the basis for further research by others.

Australian patents are administered by the Patent Office of IP Australia, a Federal Government Organisation.

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See also our Intellectual Property Law & Lawyers Section by clicking here.

An outline of the patent system

Historical origins

Patents are the oldest form of intellectual property, but their historical origins are obscure. In England, in the fifteenth century, the monarch began to grant monopoly rights as a means of attracting new industries from continental Europe, but these were more in the nature of a royal licence to avoid the effects of guild regulations than a true grant of exclusive rights to carry on an activity.[4] It was only in the following century that patents began to be granted in respect of inventions, and the patent system was put on a statutory basis for the first time in the seventeenth century with the passage of the Statute of Monopolies 1623 (Statute of Monopolies). Despite its age, this English statute continues to have relevance to Australian patent law today.

As it first developed, the English patent was a slow, costly and cumbersome procedure for encouraging and protecting inventions. The procedure was described in derisory terms by Charles Dickens in a short story published in 1850, ‘A Poor Man’s Tale of a Patent’. Over the years there were many piecemeal reforms to the system, but it was the Patents Act 1883 (UK) that provided the basis of modern patent law.

Patent legislation in Australia has always been closely modelled on that of the United Kingdom. Prior to Federation, each of the Australian colonies had its own legislation based on the Patents Act 1883 (UK). In 1901, the Australian Constitution gave the newly established Commonwealth Parliament power to make laws with respect to ‘copyrights, patents of invention and designs, and trade marks’.In 1903, this power was exercised with the enactment of the Patents Act 1903 (Cth).

As in the United Kingdom, there have been many amendments to Australian patent legislation in response to formal commissions of inquiry. The 1903 Act was re-enacted with substantial changes in 1952 and again in 1990. The Patents Act 1990 (Cth) (Patents Act) provides the current legislative framework governing the grant and administration of patents in Australia.

See also our Intellectual Property Law & Lawyers Section by clicking here.

Functions of patents

Patent law has been described as a ‘stressful if fertile union’ between certain contradictory principles: self-interest and the common good; monopoly rights and liberty; the ownership of ideas and public disclosure of knowledge. This union results from the dual goals of patent law—to benefit society by encouraging the provision of new and useful goods, and to encourage and reward inventiveness.

These goals are achieved by providing incentives for innovation and knowledge sharing by granting monopoly rights, for a limited period, to exploit a new product or process. Monopoly rights encourage investment by providing an opportunity to recoup the financial outlays involved in developing an invention. They also reward the inventor by allowing a return to be made on the time and resources expended on research and development.

The limited duration of the monopoly means, however, that the patented invention eventually will be available for free and unrestricted use when the patent term expires: the compromise is thus ‘a way of securing future benefits for the common good’.In addition, patents promote knowledge sharing during the term of the patent by requiring the patent holder to place the details of the invention in the public domain. As one United States judge has stated:

The purpose of the patent system is not only to provide a financial incentive to create new knowledge and bring it to public benefit through new products; it also serves to add to the body of published scientific/technological knowledge. The requirement of disclosure of the details of patented inventions facilitates further knowledge and understanding of what was done by the patentee, and may lead to further technologic advance.

Exploitation of patents

A patent gives the inventor the right to stop others from exploiting the invention for a limited period. However, a patent does not grant an absolute right to exploit an invention in any way the inventor may choose. A patent holder may have to satisfy regulatory requirements in order to exploit the patented product or process; for example, a patented pharmaceutical compound may need approval under the Therapeutic Goods Act 1989 (Cth) before it can be marketed lawfully and sold as a treatment for a particular condition. Similarly, the use of a patented invention is subject to the general law; for example, the components required to manufacture a car may be the subject of many patents, but the car must still be used in accordance with motor traffic laws.

A patent holder is not obliged to exploit a patented invention, but the failure to do so may have implications for the patent holder’s rights. For example, the patent could be subjected to compulsory licensing, or it could be used or acquired by the Crown under relevant provisions of the Patents Act. A patent holder may authorise others to exploit the patent by granting a licence on agreed terms. This may be on an exclusive, sole or non-exclusive basis, and almost certainly will require the licensee to pay royalties or other fees to the patent holder.

It is important to note that while patents are a form of intellectual property, they do not confer ownership in the physical material described in the claims for a patented product or process. Thus, a patent over a genetic sequence does not amount to ownership of the sequence itself.

Criteria for patentability

Although there is considerable variance in detail from one jurisdiction to another, most countries apply similar tests for patentability: an invention must be novel (that is, new), must involve an inventive step, and must have a useful application. In addition, the description of an invention in a patent application must be sufficient to allow a person skilled in the relevant art to create the invention independently.

Briefly, the Patents Act provides that an invention will be patentable if it is a ‘manner of manufacture’ within the meaning of s 6 of the Statute of Monopolies; is novel; involves an inventive or innovative step; is useful; and has not been used secretly within Australia prior to filing the patent application.

Certain inventions are expressly excluded from patentability. Australia has relatively few express exclusions, but they include inventions involving ‘human beings, and the biological processes for their generation’, as well as inventions the use of which would be contrary to law. Other jurisdictions recognise a broader range of exceptions, including inventions involving diagnostic, therapeutic and surgical methods of treatment of humans and animals; and inventions whose commercial exploitation would be contrary to morality or public order.

Australian Patent Law

Australian patent law operates within an international legal framework, which shapes certain procedural and substantive aspects of the patent system.

Australia has enacted legislation that regulates patenting practices within the Australian ‘patent area’ with respect to inventions involving any type of technology. The procedures for obtaining a gene patent in Australia are, broadly speaking, the same as those that apply to patents claiming any other type of technology.

Patents Legislation

Section 51(xviii) of the Australian Constitution grants the Commonwealth Parliament power to make laws with respect to ‘copyrights, patents of inventions and designs, and trade marks’. Pursuant to this power, the Parliament has enacted the Patents Act 1990 (Cth) (Patents Act) and the Patents Regulations 1991 (Cth) (Patents Regulations).

Patent protection in most countries is available for inventions that are new, involve an inventive step, and have a useful application.

In Australia, the Patents Act provides that an invention is patentable if it:

  • is a ‘manner of manufacture’—that is, the invention is appropriate subject matter for patent protection;
  • is novel;
  • involves an inventive or innovative step;
  • is useful; and
  • has not been used secretly within Australia before the priority date of the patent application.


Administration

The Australian patent system is administered by the Patent Office of IP Australia. IP Australia is a division of the Department of Industry, Tourism and Resources, but operates independently and reports directly to the Minister.

Under the Patents Act, the Commissioner of Patents has the power to grant a patent upon an application being filed with and examined by the Patent Office. IP Australia has developed the Patent Manual of Practice and Procedure (the Manual) to assist Australian patent examiners in applying the Patents Act and Patents Regulations.

State and federal courts and the Administrative Appeals Tribunal (AAT) also have a role in administering the patent system. Decisions of the Commissioner of Patents may be subject to review by the AAT or the Federal Court of Australia. The AAT may undertake merits review of the Commissioner’s decisions with respect to certain procedural matters prescribed by the Patents Act. A direct application may be made to the Federal Court for judicial review in relation to other decisions of the Commissioner; essentially those related to the grant of patents or matters closely allied to the grant (for example, amendments to patent specifications and revocations).

The Federal Court and state and territory Supreme Courts share original (first instance) jurisdiction over matters relating to the exploitation and enforcement of patent rights, including challenges to patent rights, infringement proceedings and compulsory licences. The AAT has no jurisdiction in relation to such issues.

Types of patents

Australian patent law recognises two principal types of patents:

(1) standard patents and

(2) innovation patents.

An applicant for a patent may elect to obtain protection for an invention under either system. Table A below outlines the key features of, and the difference in the scope of protection conferred by, standard and innovation patents.

Standard patents

A standard patent is the basic form of patent protection for inventions under Australian law and is consistent with the minimum requirements for patent protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement). Unless otherwise indicated, references to an Australian patent and discussions of patent rights in this Report relate only to the standard patent system.

Innovation patents

The innovation patent is a ‘second tier’ of protection, which was introduced in 2001 to replace the petty patent system.  Innovation patents are intended to provide protection for ‘lower level’ inventions for which standard patent protection is not available and which are not covered by the designs legislation.

Patents of addition

The Patents Act also provides for the grant of a ‘patent of addition’ for an improvement in, or modification to, an invention claimed in a standard patent that has already been granted.[21] A patent of addition may be obtained only by the owner of the earlier patent, or a person authorised by the owner. The term of a patent of addition expires at the same time as that of the patent on the main invention.

Table A - Features of standard patents and innovation patents

Features

Standard patent

Innovation patent

 

Term

20 years (s 67)

Extension of up to 5 years   available for certain pharmaceutical patents (ss 70–79A)

8 years (s 68)

Number of claims

No   limit

Maximum of 5 claims   (s 40(2)(c))

 

Inventions excluded from   patentability, or excludable at the discretion of the Commissioner of Patents

Human beings and the biological   processes for their generation (s 18(2))

Inventions whose use would be   contrary to law (s 50(1)(a))

Inventions capable of application   as a food or medicine that are a mere admixture of known ingredients   (s 50(1)(b))

Same as for a standard patent, and

Plants and animals and the   biological processes for the generation of plants and animals (s 18(3),   (4))

Level of invention required

‘Inventive step’ over the prior   art (s 7(2)–(3), sch 1)

‘Innovative step’ over the prior   art (s 7(4)–(6), sch 1)

Review by Patent Office prior to   grant

Substantive review for compliance   with the requirements for patentability (ss 44–49)

Formalities check only; no   substantive review unless requested (ss 52, 120(1A))

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

Procedure for grant of a patent

Patent rights do not arise automatically. A patent can be obtained only by following the procedure set out in the Patents Act and Patents Regulations. An understanding of the procedure for obtaining a patent is important to understanding Australian patent law generally. The steps in obtaining an Australian patent are described below.

Filing an application

For a patent to be granted, an eligible person must file an application in the form prescribed by the Patent Office. Eligible persons are the inventor of the invention claimed in the application, or a person to whom the inventor has assigned his or her rights in the invention. A patent application must include a specification of the invention, which contains instructions adequate to enable a skilled person in the relevant area of technology to produce or perform the invention. The specification must also indicate the ‘claims’ that define the invention; that is, the scope of protection that the applicant is seeking.

Australian patent law recognises two types of patent applications—provisional and complete. Provisional and complete applications may be filed to obtain either a standard patent or an innovation patent.

A provisional application need only contain a description of the invention. Often, an inventor files a provisional application before all the details of an invention are known. The applicant then has 12 months to file a complete application.

A complete application must contain a full description of the invention, together with claims, and an abstract summarising the invention being disclosed. A complete application may be based on one or more provisional applications, and only those claims that are ‘fairly based’ on the relevant provisional application will be entitled to the priority date of the provisional application.

The ‘priority date’ of a patent claim is important in determining whether the requirements for patentability of an invention have been met. The requirements of novelty and inventive step are assessed against the prior art as it existed before the priority date. The priority date is typically the date on which a provisional application is filed in Australia, or the date on which an application is filed in another participating jurisdiction.

An applicant may also elect to file a complete application with the Patent Office under the Patent Cooperation Treaty (PCT). A PCT application designates all the jurisdictions that are parties to the PCT (including Australia), and secures an international priority date.

PCT applications that have entered the national phase (and will be processed as a complete application) are the main type of applications received by IP Australia. In 2002–03, 16,278 PCT applications selected Australia as one of the jurisdictions in which an applicant wished to obtain patent protection and entered the national phase in Australia. During the same period, 5,694 non-PCT applications for standard patents were filed with IP Australia.

Divisional applications

Each patent application may claim protection only for a single invention. If, following assessment of a patent application, a patent examiner finds that an applicant has claimed more than one invention in the application, the applicant may elect to file a ‘divisional application’—that is, a new application divided from the original or parent application. A divisional application allows an applicant to continue to benefit from the priority date of the original application.

Divisional applications may claim subject matter not contained in the original application so long as all the features of at least one of the claims were disclosed in the original application. There are no statutory limits on the number of divisional applications that may arise from a single complete application.

The Patents Act restricts the subject matter that may be claimed in a divisional application, depending on the time at which it is filed. However, a divisional application, once filed, is subject to the same procedural requirements, including examination, as any other complete patent application.

In its submissions to the Inquiry, IP Australia indicated that divisional applications are currently ‘open to abuse’. In practice, such abuse may occur only in a small number of cases. However, IP Australia suggested that patent applicants are able to make strategic use of divisional applications in order to delay determinations by the Patent Office as to the proper scope of patent claims, or as to whether a patent should be granted. IP Australia commented that the Patents Act allows an applicant to use a divisional application to obtain a de facto monopoly by extending the period within which to respond to an examiner’s adverse report. While this use of divisional applications may be legitimate in some circumstances, IP Australia suggested that it might be used tactically by an applicant in ‘newly developing areas of technology, such as genetics, where there is a question of [the] patentability of the subject matter’. Further, an applicant might avoid a decision in an opposition proceeding by withdrawing the opposed application and refiling it as a divisional application. To address these issues, IP Australia suggested that limitations could be imposed on the circumstances in which divisional applications are available.

However, the majority of submissions and consultations on this issue did not support imposing additional limitations either on the period within which a divisional application may be filed or on the subject matter that may be claimed in a divisional application. Submissions and consultations questioned whether divisional applications are being misused, and commented on the lack of evidence that divisional applications claiming genetic inventions present a special case.

Examination

Once an application has been filed with the Patent Office, a number of additional steps must be followed before a patent may be issued. An applicant must file a request that the Patent Office examine the application. Examination is not automatic and a request for examination must generally be filed within five years of the date of filing a complete specification. However, IP Australia’s standard practice is to direct applicants to file a request for examination, if no request has been received, at approximately 32 months from the priority date, although this period may vary according to IP Australia’s workload. An abbreviated examination may be requested if an Australian patent application is related to a patent that has already been granted by the patent office in a prescribed foreign jurisdiction.

The purpose of examination is to determine whether the invention meets the statutory requirements for patentability set out in the Patents Act. The Patent Office carries out searches of previously published documents—including scientific and patent literature (‘prior art information’)—to determine the prior art material relevant to the claimed invention. In addition, an applicant must disclose to the Patent Office the results of searches carried out by or on behalf of foreign patent offices in respect of the invention claimed in an Australian application, or in a corresponding patent application filed overseas. An examiner with expertise in the relevant area of technology then examines the application, taking into account the information contained in the results of these searches and any other prior art information.

Examination of a patent application typically involves an exchange between the examiner and the applicant about the appropriate scope of the specification and the claims in light of the relevant prior art. This process is known as ‘prosecution’ of a patent application.

Following receipt of a request for examination, an examiner will make an initial assessment of an application for a standard patent and either accept the application as filed or issue a ‘first report’ detailing the procedural and substantive grounds for objecting to the application. An applicant then has a period of 21 months to address the objections raised by the examiner. The examiner may issue further reports for each response by the applicant that does not satisfy the objections raised. An application for a standard patent will generally lapse if it is not in order for acceptance within 21 months after the date of the first report.

Acceptance, publication and sealing

The Commissioner of Patents must notify an applicant of the decision to accept or refuse a patent application, and must publish notice of the decision in the Official Journal of Patents (Official Journal). Formal refusal of an application is rare. More commonly, applications for standard patents lapse for failure to obtain acceptance within the prescribed 21 month period following a first report. The Official Journal also publishes notices of lapsed applications.
Publication of a notice of acceptance in the Official Journal should be distinguished from the publication of a complete specification for a standard patent. This typically occurs 18 months after the earliest priority date for the application, and is also advertised in the Official Journal. An application is confidential prior to publication of the complete specification, and only bibliographic details—such as the applicant’s name and title of the invention—are made available by the Patent Office.

A patent is granted when the Commissioner of Patents causes the patent to be sealed with the seal of the Patent Office. For a standard patent, this will occur within six months of the date of publication in the Official Journal of the notice of acceptance of the application, unless the application is opposed.

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

International legal instruments

Australia is a party to a number of international legal instruments relating to intellectual property. The major international instruments that affect patent laws and practices in Australia are:

  • Paris Convention for the Protection of Industrial Property 1883 (Paris Convention);
  • Patent Cooperation Treaty 1970 (PCT);
  • Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure 1977 (Budapest Treaty); and
  • Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (TRIPS Agreement).

Australian domestic law has given effect to significant provisions of each of these instruments.

See also our Intellectual Property Law & Lawyers Section by clicking here.

 

Links to further resources - Patents & Inventions Law & Lawyers

 

Patents & Inventions Law & Lawyers News

Rights of a patent holder

The Patents Act provides that the grant of a patent confers upon a patent holder the exclusive right to exploit, or to authorise another person to exploit, an invention during the patent term. ‘Exploit’ is defined in the Act to include:

(a) where the invention is a product—make, hire, sell or otherwise dispose of the product, offer to make, sell, hire, or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or

(b) where the invention is a method or process—use the method or process or do any act mentioned in (a) in respect of a product resulting from such use.

A patent does not, however, grant an absolute right to exploit an invention. A patent holder may have to satisfy other legal requirements in order to exploit the patented product or process. For example, a patented pharmaceutical compound may need to be approved under the Therapeutic Goods Act 1989 (Cth) before it can lawfully be marketed and sold as a treatment for a particular condition. In addition, a patent holder’s ability to exploit the invention may be subject to earlier patents not owned by the patent holder.

A patent holder may assign or license its patent rights to a third party. An assignment of a patent results in the transfer of all of the rights owned by the patent holder to a third party (the assignee).

A licence of a patent does not transfer ownership of any patent rights; rather, it establishes terms upon which a third party (the licensee) may exercise certain patent rights without such use constituting infringement.

A patent holder is not obliged to exploit an invention claimed in a patent at any time during the patent term, nor to license or assign its patent rights.

However, the failure to exploit the invention may encourage others to invoke the Crown use or compulsory licensing provisions in the Patents Act.

Patent rights remain subject to challenge even after the Commissioner of Patents accepts a patent application and after the patent is sealed. Section 20 of the Patents Act expressly states that nothing in the Act or in the PCT guarantees that a patent is valid.

Duration of patent protection

A standard patent generally has a term of 20 years, commencing on the date of the patent; an innovation patent has a term of 8 years. The term of a standard patent relating to ‘pharmaceutical substances’ may be extended in certain circumstances.

Art 33 of the TRIPS Agreement requires member States to provide patent protection for a term of not less than 20 years from the filing date. Article 27(1) requires member States to make patent protection available for all inventions, without discrimination as to the field of technology to which an invention relates. The Patents Act was amended in 1994 to extend the term of protection for a standard patent from 16 years to 20 years in order to bring Australian patent law into conformity with the TRIPS Agreement.

While the TRIPS Agreement provides some flexibility to member States in developing their own patent laws, the minimum term of patent protection is not subject to exceptions or qualifications. The TRIPS Agreement does, however, permit member States to require compliance with reasonable procedures and formalities as a condition of the acquisition or maintenance of intellectual property rights. Such procedures and formalities include the payment of fees for the filing and processing of a patent application, and for maintaining existing patent rights.

In addition, the Australia–United States Free Trade Agreement contains a provision that might affect the term of patent. Article 17.9.8 provides that, if there are unreasonable delays in a Party’s issuance of patents, that Party shall provide a means to adjust the term of the patent to compensate for the delay. If, in the future, there is evidence of unreasonable delay in the grant of Australian patents it may be necessary to amend the Patents Act to provide an extension of the patent term.

If you have a matter involving a Patent or invention, then please complete your free Legal Enquiry Form to request immediate legal assistance on your legal matter.

See also our Intellectual Property Law & Lawyers Section by clicking here.

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While summer vacation is seen as a time to relax and unwind, the work never stops for others. It is never too early to adequately prepare for a big exam like the patent bar exam, and summer vacation presents an opportunity for you to take advantage of the time you have and commit to studying. […]

The post 4 Tips for Studying for the Patent Bar (Or Any Other Big Exam) Over Summer Vacation appeared first on Patent Education Series.

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MPEP Q & A 198: Items Necessary to Accord the International Filing Date the Date of Receipt of the International Application

Tue, 26 May 2020 14:02:56 +0000

Question: What does the Office need at the time of receipt in order to accord the international filing date the date of receipt of the international application? Answer: The receiving Office shall accord as the international filing date the date of receipt of the international application, provided that the Office has found that, at the […]

The post MPEP Q & A 198: Items Necessary to Accord the International Filing Date the Date of Receipt of the International Application appeared first on Patent Education Series.

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10 Things You May Not Have Realized were Invented Between 2015 – 2020

Tue, 19 May 2020 14:02:05 +0000

The last half-decade has been a remarkable time for innovation and inventions. Consider the following breakthroughs that hit the scene from 2015 to 2020. These notable inventions are helping people improve their lives. The Levitating Lightbulb If you want a lightbulb that levitates, you can now get one thanks to Gleagle. The company has released […]

The post 10 Things You May Not Have Realized were Invented Between 2015 – 2020 appeared first on Patent Education Series.

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MPEP Q & A 197: What Must a Petition for an Unintentionally Delayed Claim be Filed With?

Tue, 12 May 2020 14:02:38 +0000

Question: What must a petition for an unintentionally delayed claim be filed with? Answer: A petition for an unintentionally delayed claim must be accompanied by: (A) the reference required by 35 U.S.C. 120 and 37 CFR 1.78 to the prior application (unless previously submitted); (B) a petition fee under 37 CFR 1.17(m); and (C) a […]

The post MPEP Q & A 197: What Must a Petition for an Unintentionally Delayed Claim be Filed With? appeared first on Patent Education Series.

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Customizing Your Cover Letter Takes Time But Increases Your Chances of Standing Out

Tue, 05 May 2020 14:02:39 +0000

Tailoring your cover letter for each job you apply to adds a bit of time to the application process, but yields excellent results. Customization means personalizing the message to the recipient, which makes you stand out from your competitors. Appeal to the Person Responsible for Hiring You should customize your cover letter with the hiring […]

The post Customizing Your Cover Letter Takes Time But Increases Your Chances of Standing Out appeared first on Patent Education Series.

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MPEP Q & A 196: Submission of Petition to Withdraw Application from Issue Under 37 CFR 1.313(c)

Tue, 28 Apr 2020 14:02:18 +0000

Question: How can petitions to withdraw an application from issue under 37 CFR 1.313(c) be sent to the USPTO? Answer: Petitions to withdraw an application from issue under 37 CFR 1.313(c) may be: (A) mailed to “Mail Stop Petition, Commissioner for Patents”; (B) transmitted by facsimile; (C) hand-carried to the Office of Petitions; or (D) […]

The post MPEP Q & A 196: Submission of Petition to Withdraw Application from Issue Under 37 CFR 1.313(c) appeared first on Patent Education Series.

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10 Things You May Not Have Realized Were Invented Between 2010 – 2015

Tue, 21 Apr 2020 14:02:09 +0000

The years 2010 through 2015 were productive in terms of new inventions. Many of the breakthroughs are still around today, creating dramatic changes in the world. Consider the ten following inventions. Amazon Kindle Fire Amazon entered the tablet market with its Kindle Fire in 2013. The device serves up optimized content from Amazon’s vast library, […]

The post 10 Things You May Not Have Realized Were Invented Between 2010 – 2015 appeared first on Patent Education Series.

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MPEP Q & A 195: Necessary Items for a Petition for Retroactive License

Tue, 14 Apr 2020 14:02:57 +0000

Question: What should a petition for retroactive license include? Answer: A petition for retroactive license shall include: (1) A listing of each of the foreign countries in which the unlicensed patent application material was filed, (2) The dates on which the material was filed in each country, (3) A verified statement (oath or declaration) containing: […]

The post MPEP Q & A 195: Necessary Items for a Petition for Retroactive License appeared first on Patent Education Series.

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How to Create a Good Outline from Your Notes

Tue, 07 Apr 2020 14:02:22 +0000

There’s so much information covered on the patent bar. So how do you start organizing all of it? One of the best ways to use any notes you’ve taken is to create an outline. An outline helps you condense your notes into tiny pieces of information to help you learn the material faster. But without […]

The post How to Create a Good Outline from Your Notes appeared first on Patent Education Series.

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MPEP Q & A 194: Stop the Publication of an Application

Tue, 31 Mar 2020 14:02:26 +0000

Question: Can a petition under 37 CFR 1.138(c) stop publication of an application? Answer: A petition under 37 CFR 1.138(c) will not stop publication of the application unless it is recognized and acted on by the Pre-Grant Publication Division in sufficient time to avoid publication. The petition will be granted when it is recognized in […]

The post MPEP Q & A 194: Stop the Publication of an Application appeared first on Patent Education Series.

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10 Things You May Not Have Realized Were Invented in the 2000s

Tue, 24 Mar 2020 14:02:39 +0000

The 2000s were a time of rapid advancement in the world of technology. The decade was particularly fruitful for gadgets, which spread far and wide during the era. Consider these ten leading innovations. The USB Flash Drive These portable drives made adding enormous amounts of storage as simple as snapping one into a USB port. […]

The post 10 Things You May Not Have Realized Were Invented in the 2000s appeared first on Patent Education Series.

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MPEP Q & A 193: Petition to Make Special and Energy Resources

Tue, 17 Mar 2020 14:02:27 +0000

Question: Does the petition to make special apply to patent applications for inventions dealing with energy resources? Answer: The U.S. Patent and Trademark Office will, on petition, accord “special” status to all patent applications for inventions which materially contribute to: (A) the discovery or development of energy resources, or (B) the more efficient utilization and […]

The post MPEP Q & A 193: Petition to Make Special and Energy Resources appeared first on Patent Education Series.

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Learn Anything Faster

Tue, 10 Mar 2020 14:02:48 +0000

Preparing for exams can be tiring, stressful and frustrating, especially when it is a career-defining exam such as the patent bar exam. In such cases, it helps to have some study tips on how to learn things quicker and more effectively. Read this article to get tips for learning things faster. Sleep Well It is […]

The post Learn Anything Faster appeared first on Patent Education Series.

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MPEP Q & A 192: Overcome Provisional Obviousness Rejection

Tue, 03 Mar 2020 15:02:07 +0000

Question: How can a provisional obviousness rejection be overcome? Answer: A provisional obviousness rejection can be overcome by: Arguing patentability over the earlier filed application; Combining the subject matter of the copending applications into a single application claiming benefit under 35 U.S.C. 120 of the prior applications and abandoning the copending applications Filing an affidavit […]

The post MPEP Q & A 192: Overcome Provisional Obviousness Rejection appeared first on Patent Education Series.

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Giving Up on the Patent Bar: Don’t Do It

Tue, 25 Feb 2020 15:02:18 +0000

If you’ve failed the patent bar exam or have been unsuccessful in completing your preparation for it more times than you can count, you might consider giving up altogether. All of us have faced failure in our lives multiple times. Some of these setbacks make us stronger while others demoralize and dishearten us. However, giving […]

The post Giving Up on the Patent Bar: Don’t Do It appeared first on Patent Education Series.

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MPEP Q & A 191: Final Rule in the Changes to the Claim Construction Standard

Tue, 18 Feb 2020 15:02:23 +0000

Question: What does the final rule in the “Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board” state? Answer: In this final rule, the Office revises the rules to provide that a patent claim, or a claim proposed in a motion to amend, shall be […]

The post MPEP Q & A 191: Final Rule in the Changes to the Claim Construction Standard appeared first on Patent Education Series.

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Improving Sleep to Help You Prepare For the Patent Bar Exam

Tue, 11 Feb 2020 15:02:08 +0000

Patent law is a branch of intellectual property rights law where new inventions, ideas, designs, devices and contraptions are registered. Getting something patented gives the inventors and creators exclusive rights to their property in terms of selling, purchasing, copyrights, distribution etc… As interesting and entertaining as the profession may sound, sitting for the patent bar […]

The post Improving Sleep to Help You Prepare For the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Q & A 190: AIA Proceeding Expenses Under Phillips

Tue, 04 Feb 2020 15:02:51 +0000

Question: Have parties to AIA proceedings under Phillips required expanded page limits or otherwise incurred more expenses in their AIA trials than parties in AIA proceedings under BRI? Answer: PTAB has not found that parties to these AIA proceedings under Phillips require expanded page limits or otherwise incur more expense in their AIA trials than […]

The post MPEP Q & A 190: AIA Proceeding Expenses Under Phillips appeared first on Patent Education Series.

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5 Easy Tips to Help Maximize Your Learning

Tue, 28 Jan 2020 15:02:05 +0000

Learning new things is both exciting as well as daunting. You may be learning things all the time, from learning how to solve a calculus equation or learning about historical events. However, most people find themselves lost when learning something new. Read this article to get some handy tips on how to learn new things […]

The post 5 Easy Tips to Help Maximize Your Learning appeared first on Patent Education Series.

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MPEP Q & A 189: Issuance of NIRC Action in Inter Partes Reexamination Proceeding

Tue, 21 Jan 2020 15:02:14 +0000

Question: Name one instance when issuance of a NIRC action would be proper in an inter partes reexamination proceeding. Answer: The following are the only instances when issuance of a NIRC action would be proper in an inter partes reexamination proceeding: There is no timely response by the patent owner to an Office action requiring […]

The post MPEP Q & A 189: Issuance of NIRC Action in Inter Partes Reexamination Proceeding appeared first on Patent Education Series.

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Memory Techniques to Help You Conquer the Patent Bar Exam

Tue, 14 Jan 2020 15:02:23 +0000

Preparing for the patent bar exam can be demanding, time consuming, as well as mentally and physically exhausting. It can get especially frustrating if you find you cannot memorize the content and exam material. Fortunately, there are certain memory tips that help patent bar exam candidates memorize the material better and retain it for much […]

The post Memory Techniques to Help You Conquer the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Q & A 188: What Should Applicant Initiated Interview Request Form Identify?

Tue, 07 Jan 2020 15:02:40 +0000

Question: What should the Applicant Initiated Interview Request form identify? Answer: The Applicant Initiated Interview Request form should identify: the participants of the interview the proposed date of the interview whether the interview will be personal, telephonic, or video conference and should include a brief description of the issues to be discussed. Chapter Details: The […]

The post MPEP Q & A 188: What Should Applicant Initiated Interview Request Form Identify? appeared first on Patent Education Series.

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How to Avoid Procrastination on the Patent Bar Exam

Tue, 17 Dec 2019 15:02:27 +0000

Preparing for the patent law bar exam can be demanding, time-consuming, challenging and exhausting. Since this exam can be extremely difficult, people tend to avoid studying for it by procrastinating. Although it might not sound like a very serious problem at first, procrastination often leads prospective patent practitioners to fail the exam. Fortunately, there are […]

The post How to Avoid Procrastination on the Patent Bar Exam appeared first on Patent Education Series.

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MPEP Q & A 187: Two Final Rules Dealing with Claim Construction Standard

Tue, 10 Dec 2019 15:02:08 +0000

Question: What are the two final rules dealing with the claim construction standard as implemented in the supplement entitled “Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board”? Answer: In the first final rule, the Office changed the existing rules to, among other things: Increase […]

The post MPEP Q & A 187: Two Final Rules Dealing with Claim Construction Standard appeared first on Patent Education Series.

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Productivity Hacks to Help You Ace the Patent Bar Exam Quickly

Tue, 03 Dec 2019 15:02:16 +0000

Preparing for the patent bar exam can be laborious, taxing, and exhausting. Most of the candidates aiming to sit for this exam fall prey to procrastination and end up not doing very well on their exam. This article features some effective and helpful productivity tips to help you ace the patent bar exam. Turn Off […]

The post Productivity Hacks to Help You Ace the Patent Bar Exam Quickly appeared first on Patent Education Series.

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MPEP Q & A 186: Name Types of Patents that May Not Use 37 C.F.R. 1.114

Tue, 26 Nov 2019 15:02:36 +0000

Question: Name two types of patents that may not use the provisions of 37 C.F.R. 1.114. Answer: The provisions of 37 C.F.R. 1.114 do not apply to the following types of patents: design patent applications provisional applications applications filed before June 8, 1995 international applications filed before June 8, 1995 an international design application reexamination […]

The post MPEP Q & A 186: Name Types of Patents that May Not Use 37 C.F.R. 1.114 appeared first on Patent Education Series.

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Speed-Reading: Hoax or Real?

Tue, 19 Nov 2019 15:02:19 +0000

Be it a student or a working adult, we read one thing or another everyday both consciously as well as subconsciously. Certain professionals have to read as a part of their jobs such as authors, proofreaders, publishers, and patent attorneys, etc. For regular readers, reading is not a difficult task, whereas others might struggle with […]

The post Speed-Reading: Hoax or Real? appeared first on Patent Education Series.

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MPEP Q & A 185: What Must an Application Filed Under 37 CFR 1.53(d) be Filed Before the Earliest Of?

Tue, 12 Nov 2019 15:02:55 +0000

Question: What must an application filed under 37 CFR 1.53(d) be filed before the earliest of? Answer: An application filed under 37 CFR 1.53(d) must be filed before the earliest of: (A) payment of the issue fee on the prior application, unless a petition is granted in the prior application; (B) abandonment of the prior […]

The post MPEP Q & A 185: What Must an Application Filed Under 37 CFR 1.53(d) be Filed Before the Earliest Of? appeared first on Patent Education Series.

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Tips to Advance Your Career in Patent Law

Tue, 05 Nov 2019 15:02:31 +0000

Becoming a patent agent or patent attorney is difficult, time-consuming and requires a lot of hard work. Many people seem to slow down and take the job very lightly once they get started. This article discusses some very helpful ways you can do well as a patent practitioner whether agent or attorney and advance in […]

The post Tips to Advance Your Career in Patent Law appeared first on Patent Education Series.

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MPEP Q & A 184: What Should a Subject Matter Eligibility Rejection Identify Under Step 2A?

Tue, 29 Oct 2019 14:02:24 +0000

Question: A subject matter eligibility rejection under Step 2 should provide an explanation for each part of the Step 2 analysis; Step 2A and Step 2B. What specifically should a rejection identify under Step 2A? Answer: For Step 2A, the rejection should identify the judicial exception by referring to what is recited (i.e., set forth or described) in […]

The post MPEP Q & A 184: What Should a Subject Matter Eligibility Rejection Identify Under Step 2A? appeared first on Patent Education Series.

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Leaping in Life: Jumping into Patent Law as a Career Field

Tue, 22 Oct 2019 14:02:06 +0000

Choosing a career is a life defining moment. It requires a lot of thinking and decisiveness to ensure that you’re choosing a profession that is best for you. If you have an itch for the legal industry and are considering jumping into patent law as your career, read this article to find more about what […]

The post Leaping in Life: Jumping into Patent Law as a Career Field appeared first on Patent Education Series.

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MPEP Q & A 183: When Changes to the Claim Construction Standard Apply

Tue, 15 Oct 2019 14:03:50 +0000

Question: When will the changes to the claim construction standard as outlined in “Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board” apply? Answer: As shown in the supplement … The changes to the claim construction standard will apply to proceedings where a petition is filed […]

The post MPEP Q & A 183: When Changes to the Claim Construction Standard Apply appeared first on Patent Education Series.

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Learning Is the Only Skill That Matters

Tue, 08 Oct 2019 14:02:21 +0000

Learning is unavoidable, we are learning all the time, every day of our lives, both consciously and subconsciously. It is an essential and crucial life skill that is necessary for anyone who wants to continuously progress in life. Learning is considered by many the only skill that truly matters since lifelong learning is a vital […]

The post Learning Is the Only Skill That Matters appeared first on Patent Education Series.

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These news come from Patent Education Series.

The U.S. Patent System Works! Kind Of

Thu, 01 Oct 2020 11:15:50 +0000

Not too long ago, independent inventor Josh Malone finally received a settlement for willful infringement of his patents. He won in court and at the Patent Trial and Appeal Board (PTAB), and from what I’ve read, I know it was a long, hard fight, and the cost to litigate was in the tens of millions of dollars. But, he did it, and his product Bunch O Balloons continues to be a number-one hit summer toy. Licensing his invention to one of the fastest growing toy companies in the world (ZURU)...

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Patent Filings Roundup: Dozens of Patents DJed Under Alice; Counterfeit Kids’ Bikes Challenged; Board Refuses Non-Fintiv Policy Arguments

Wed, 30 Sep 2020 18:30:00 +0000

District court filings were low this week with 49, a substantial percentage of which were filed against small or medium-sized companies by IP Edge or Leigh Rothschild-owned subsidiaries.  The Patent Trial and Appeal Board (PTAB) was steady with 33, one post grant review (PGR), the rest inter partes reviews (IPRs).  The fallout from the Magnetar-backed Irish entity Neodron filing in the International Trade Commission (ITC) continued with the usual trickle of filings against their portfolio;...

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Federal Circuit Reinstates Jury Verdict Finding Claims of Biogen’s MS Drug Were Anticipated

Wed, 30 Sep 2020 13:33:31 +0000

On Monday, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Biogen MA, Inc. v. EMD Serono, Inc., reversing the U.S. District Court for the District of New Jersey’s judgment as a matter of law (JMOL) for Biogen. The New Jersey court had found no anticipation of Biogen’s patent claims, overturning a jury’s finding that the claims were anticipated by the prior art. The Federal Circuit’s decision, which turned on the issue of applying a product-by-process novelty...

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Quickly Modeling Patent Value

Wed, 30 Sep 2020 11:15:17 +0000

Imagine you are presenting to your boss and requesting approval of a $2 million purchase of four patent families. Already savvy about market prices, she is focused on the impact of the purchase to the business. Her question: “So what are these patents worth and what will the impact be of the purchase?” Unless you have done some sort of valuation to quantify the worth of these patents for the business, you may find yourself talking vaguely about synergies or avoided costs. This is because...

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The FTC Should Give Up Its Doomed Fight with Qualcomm and Adopt Delrahim’s New Madison Approach

Tue, 29 Sep 2020 20:15:44 +0000

The Federal Trade Commission (FTC) just can’t take “no, you’re wrong” for an answer. Despite its embarrassing reversal by the Ninth Circuit Court of Appeals in August, the FTC has now appealed its Qualcomm case to the full Ninth Circuit. A three-judge appellate panel overturned the trial court’s errant ruling, giving the FTC a comeuppance in its antitrust suit against Qualcomm, the trailblazer in wireless technology with thousands and thousands of patented inventions. The sheer cliff the FTC...

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CAFC: Parties Joined in IPRs are Not Estopped from Raising New Invalidity Grounds in District Court

Tue, 29 Sep 2020 16:15:36 +0000

On September 24, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed-in-part and reversed-in-part the U.S. District Court for the Eastern District of Texas’s claim construction and remanded to the district court in Network-1 Technologies, Inc. v. Hewlett-Packard Company. In particular, the CAFC concluded that the district court erred in construing the claim term “main power source” and held that a party joined to an inter partes review (IPR) proceeding is not estopped...

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California Court’s Finding of Fair Use for Nicki Minaj Affirms Public Benefit of Artistic Experimentation

Tue, 29 Sep 2020 11:15:32 +0000

In a ruling earlier this month, U.S. District Judge Virginia A. Phillips of the Central District of California granted partial summary judgment in favor of Onika Tanya Maraj, who performs rap under the stage name Nicki Minaj, resolving a copyright infringement dispute originally filed in 2018 by singer-songwriter Tracy Chapman over Minaj’s unauthorized use of Chapman’s 1988 single “Baby Can I Hold You.” In ruling that Minaj had established a fair use defense to Chapman’s copyright infringement...

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Hindsight Bias

Tue, 29 Sep 2020 10:15:09 +0000

Informal Drawings is a comic strip devoted to patent attorneys, examiners, and inventors. New comics are published weekly. Prints and coffee mugs may be purchased at patentspace.net/informal-drawings.

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ITC Decision to Review Final Initial Determination in Botox Case Could Have Big Implications for Trade Secrets

Mon, 28 Sep 2020 20:15:19 +0000

Last week, the United States International Trade Commission (ITC) issued a notice in the Matter of “Certain Botulinum Toxin Products, Processes for Manufacturing or Relating to Same and Certain Products Containing Same,” Investigation No. 337-TA-1145, stating that the ITC has “determined to review in part a final initial determination (FID) of the presiding administrative law judge (ALJ) finding a violation of section 337 of the Tariff Act of 1930.”Last year, Allergan, the U.S. manufacturer of...

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This Week in Washington IP: House Judiciary Committee to Review Copyright Office Section 512 Report, Senate Committees Consider Copyright Small Claims Proposal and Subpoenas for Big Tech CEOs

Mon, 28 Sep 2020 16:15:18 +0000

This week in Washington IP events, the House Judiciary Committee will hold a hearing at noon on Wednesday to explore the findings of the Copyright Office’s report on Section 512’s safe harbor provisions under the DMCA, released this May. Over in the Senate, the Senate Commerce Committee will discuss authorizing a series of subpoenas for big tech CEOs at Google, Facebook and Twitter, while the Senate Judiciary Committee will discuss a proposed bill to create a framework for alternative dispute...

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Quickly Modeling Patent Market Prices

Mon, 28 Sep 2020 11:15:35 +0000

Imagine you have found four patent families that address a specific risk to your business, and you are about to ask your boss to approve buying those patents for $2 million. Her questions might include, “What’s the going rate for patents?” Similarly, if you were working with your company’s accounting team and moving four patent families from your corporate parent to a subsidiary, the accounting department might ask, “What is the ‘fair market value’ of these patents for transfer pricing?” A...

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Federal Circuit Shoots Down Apple Bid to Strike Certain Voip-Pal Claims Upheld by PTAB

Sun, 27 Sep 2020 16:15:21 +0000

In the latest episode of a long-running saga between Apple and Voip-Pal, the U.S. Court of Appeals for the Federal Circuit on Friday denied Apple’s request to reverse the Patent Trial and Appeal Board’s (PTAB’s) determination that 15 claims of Voip-Pal’s voice over IP communications patents were not invalid for obviousness. The Court also affirmed the PTAB’s sanctions order, which Apple had appealed because the Board did not enter adverse judgment against Voip-Pal or vacate the final written...

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‘Lead Development’ in Compound Claim Challenges

Sat, 26 Sep 2020 16:15:42 +0000

In an earlier article, “Tips for Selecting a ‘Lead Compound’ in Compound Claim Challenges,” I introduced an approach derived by U.S. federal courts called the “lead compound analysis,” and discussed the first stage of the analysis – “Lead Selection”. This post discusses the second stage – “Lead Development”. The lead development analysis involves assessment of the efforts required for modifying the lead compound to arrive at the claimed compound. As with the case of lead selection, the lead...

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Other Barks & Bites for Friday, September 25: Anonymous Precedential Decision Nominations at the PTAB, CAFC Rules on IPR Prior Art Estoppel in District Court and DOJ Issues Section 230 Proposals

Fri, 25 Sep 2020 18:15:48 +0000

This week in Other Barks & Bites: China’s IP administration releases draft provisions on the protection of geographical indications; Chief APJ Scott Boalick announces a new form for PTAB practitioners to anonymously nominate PTAB decisions for precedential status; Shira Perlmutter is announced as the 14th Register of Copyrights; the Federal Circuit finds that Hewlett-Packard’s IPR joinder doesn’t trigger Section 315(e)(2) prior art estoppel during civil actions in district court; the...

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Analyzing Vastly Different First Action Final Rejection Outcomes Following Recent Policy Change (Part II)

Fri, 25 Sep 2020 11:15:14 +0000

The USPTO recently revised Manual of Patent Examination Procedure (MPEP) Section 706.07(b) to retroactively impose a first action final rejection (FAFR) policy that significantly reduces patent applicants’ options (MPEP, E9R10.2019. Fed. Reg. Vol. 85, No. 133 page 41,571). In Part 1 of this two-part series, we analyzed the final agency decision provided by the USPTO as basis for the FAFR policy change. Here, in Part II, we analyze petition decisions relating to FAFRs made on amended claims...

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Family Law Legal Advice - Divorce Legal Advice
Do you need legal advice regarding any aspect of
family law? are you thinking about having a divorce?  If so then you need legal advice from a qualified family lawyer.  Family laws can be quite complex and difficult to navigate which is why it is important to obtain sound legal advice in order to protect your position. Our free legal enquiry service covers all aspects of family law. So if you need a family lawyer to give you the best legal advice regarding your legal situation, then don't delay enquire today!

Have you been in a car accident?

If you have been involved in a car accident, then the chances are that you could be entitled to claim compensation. It is important you seek legal advice immediately following are car accident as there are stringent time limits that apply to the making of CTP claims.

If you have suffered a personal injury in a car accident, either as a:  driver, passenger, cyclist, motor cycle rider or pedestrian, you could be entitled to claim compensation, whether you have minor soft tissue injuries, whiplash, broken limbs, head injuries or far more serious injuries. It is important you obtain sound legal advice without any delay. Enquire today to find out what compensation you could be entitled to.

To find out what compensation entitlements you could receive for your injuries please complete our no obligation, FREE Online legal Enquiry Form

Car accidents happen every day. If you have been affected from a road related incident, the chances are you could be entitled to claim a compensation payout. You should seek legal advice immediately. even if you are the victim of a hit-and-run accident you could still be eligible to claim compensation. Please complete your free legal enquiry form to find out more.

There are time limits that apply to CTP claims and it is important to seek legal advice immediately to ensure that your rights entitlements are protected.

Have you been involved in an accident with uninsured vehicle?

If so then you could be Eligible to claim compensation against the nominal defendant.

It is important to seek legal advice immediately. - please complete your free legal enquiry form to be put in contact with a lawyer who can help you with your claim.

If you have been injured in a Road related accident either as a driver, passenger, pedestrian, motorcyclist or cyclist, you could be entitled to claim a significant compensation payout. You should seek legal advice immediately to find out what you could be entitled to claim.

Legal advice for family law matters

Do you need legal advice regarding family law? If so, please complete your free legal enquiry form. Going through a separation and divorce can be a difficult time for those involved and that's why the process needs to run as smoothly as possible. It is therefore important that proper legal advice be obtained from a qualified legal practitioner practising family law who can help you and give you the legal advice you need to guide you through your difficult situation and ensure that the matter is dealt with as fairly as possible. Please complete your free legal enquiry form to find out more.

Car Accident Compensation

Have you been in a car accident? where you a driver, rider, passenger or pedestrian? If you answered "yes" to any of those questions, then you could be entitled to claim a significant compensation payout. To find out more please complete your free legal enquiry form.

 

Cyclist Accidents and Injuries

Quite often cyclists are not given proper care and attention by other road users. This can result in accidents occurring between car, trucks and other motor vehicles with bicycle riders. Motorists often fail to give way to cyclists therby causing an accident with the cyclist.

If you are a cyclist who has been involved in an accident, then the chances are you could be entitled to receive a significant compensation payout from the CTP insurer of the driver that caused the accident.

To find out more, please complete your free legal enquiry form.

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