美国专利法中的派生和干扰程序

Categories:最新消息
Author:
Origin:
Time of issue:2016-12-15 11:23
Views:

(Summary description)在现实生活中，我们可能会遇到这种情况：A发明了一个医疗器械，随后，A与合作者B共同讨论了这件发明，不久后，A发现B已经针对这件发明提交了发明专利申请，内容与A的发明非常相似，甚至完全相同。这种情况在美国通常会引起发明人资格的纠纷，有些纠纷可以协商解决，有些纠纷则需要通过争辩程序来解决。　　根据该纠纷所涉及的是已经授权的专利申请还是尚未授权的专利申请，被遗漏的发明人有两种选择来解决发明人资格的纠纷。





美国专利法中的派生和干扰程序

Categories:最新消息
Author:
Origin:
Time of issue:2016-12-15 11:23
Views:

Information

　　在现实生活中，我们可能会遇到这种情况：A发明了一个医疗器械，随后，A与合作者B共同讨论了这件发明，不久后，A发现B已经针对这件发明提交了发明专利申请，内容与A的发明非常相似，甚至完全相同。这种情况在美国通常会引起发明人资格的纠纷，有些纠纷可以协商解决，有些纠纷则需要通过争辩程序来解决。

　　根据该纠纷所涉及的是已经授权的专利申请还是尚未授权的专利申请，被遗漏的发明人有两种选择来解决发明人资格的纠纷。如果所涉及的是专利申请而且该专利申请正在美国专利商标局(USPTO)接受审查，被遗漏的发明人可以向USPTO提出更正发明人资格的要求。如果涉及的是已被授权的专利申请，被遗漏的发明人可以向美国地方法院提出更正要求。但是，被遗漏的发明人通常不能在法院要求解决在尚未授权的专利申请中存在的发明人资格纠纷，但该发明人可以等相关专利申请被授权后，再对其发明人资格向法院提出质疑。

　　《美国发明法案》(AIA)简化了在 USPTO更正发明人资格的程序。虽然AIA改变了美国专利法中的先发明制，但该法案依然强调专利原创性的重要性，并创建了派生程序，以确保发明人资格能够得到必要的更正。派生程序是为了确保首先提交专利申请的人是真正的发明人，被遗漏的发明人可以通过提交自己的专利申请，包含与已有专利申请完全相同(或几乎完全相同)的权利要求，然后请求USPTO启动派生程序。

　　AIA美国专利制度中的先发明制将改为先申请制。要求保护的发明的“有效申请日”定义为申请的实际提交日。随之进行的相应修改是，现行的“抵触程序”(interference，确认谁为先发明人的程序)将会取消，取而代之的是“派生程序”(derivation，确认先申请人的发明是否源自后提交申请的发明人)。

　　美国专利法291条对派生专利进行了说明

　　(a)一般规定

　　专利所有权人有权针对另一有效申请日在先且与其专利具有相同权利要求的专利的所有人提起诉讼，只要在先专利提出权利要求的发明是有提起诉讼的专利所有人提出权利要求发明派生出来的。

　　(b)提起诉讼的限制

　　提起本条规定的诉讼必须在所主张的派生发明第一次被授予专利证书之日起1年之内提出，并指明派生发明的发明人或共同发明人的名字。

　　如果相关专利申请是在2013年 3月16日之前提交的，则被遗漏的发明人可以在USPTO通过干扰程序解决发明人资格纠纷。不过，干扰程序在解决发明人资格纠纷中一直没有得到广泛应用，其中一个原因是确定发明人资格程序和干扰程序存在一些实质性的冲突。发明人资格取决于原创性，而干扰程序主要确定发明的先后。这两项程序所提出的问题不同，确定发明人资格需要解决的问题是谁是发明人，而干扰程序中考虑的问题是谁是第一个发明人。这两项程序所关注的事实也不同，在发明人资格的确定中所关注的是谁对于发明作出了创造性的贡献，而在干扰程序中所关注的是谁最先获得构思和(或)将该构思付诸实践。

　　在诉讼程序中，被遗漏的发明人必须提出明确并有说服力的证据来证明他的立论。而在派生程序中，默认的证据标准是优势证据标准，这一证据标准比诉讼程序所要求的明确并具说服力的证据标准就要低得多。

　　在地方法院提起诉讼的另一个劣势是耗费大量的时间和资金。普华永道去年的一项调查结果显示，美国一个专利案件从提起诉讼到审判首日的平均时间是2年半。另外，据美国知识产权法律协会调查，每个专利案件进展到取证结束时所需的平均费用是160万美元，而进展到最终判决时所需的平均费用则高达 280万美元。相对而言，AIA中的派生程序具有速度快、费用低的优点。虽然美国专利法未对派生程序作出详细的要求，但预计PTAB在派生程序提起后的一年内就会作出最终判决。在派生程序中，提交诉状的费用只有400美元，根据USPTO估算，整个派生程序所需的时间约为700个小时。按照USPTO提供的每小时平均费用为371美元计算，派生程序所需的费用在26万美元左右。AIA使派生程序成为更正发明人资格的一个简单、快捷的方法。与以前的干扰程序相比，派生程序提供了一个更清晰的流程;与诉讼程序相比，派生程序具有证据标准低、费用少、时间短的优势。

　　新闻稿来源：http://www.nipso.cn/onews.asp?id=20380

Previous: 专利显示iPhone 8或采用曲面屏

Next: iPhone 8新专利要在手机背部做大文章

Previous: 专利显示iPhone 8或采用曲面屏

Next: iPhone 8新专利要在手机背部做大文章

Electronic Arts pledges free use for five accessibility patents

Electronic Arts pledges free use for five accessibility patents Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents. Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version. Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities. The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919). The code of the mentioned technology is published on EA’s GitHub, and it is open to all developers. Thus, the developers can use it or adapt it for their games without spending the costs to research. It is good that EA shares the patents for free use and aims to create an accessibility-increased gaming environment for players. However, it is not “unconditional” to use the listed patents. In the pledge, EA mentioned that it may terminate the promise for a specific party which files a patent infringement lawsuit or other patent proceedings against EA. We can see parts of EV’s ambition behind the announcement—to build a large game developer league and a community of shared interests. Reference: https://www.ea.com/commitments/positive-play/accessibility-patent-pledge https://iknow.stpi.narl.org.tw/Post/Read.aspx?PostID=14562 https://www.polygon.com/22639469/apex-legends-electronic-arts-patent-pledge-accessibility-developers https://www.theverge.com/2021/8/24/22638535/ea-accessibility-patent-pledge-apex-legends-ping-system https://www.gamesradar.com/ea-secures-a-patent-for-the-apex-legends-ping-system-and-its-giving-it-away-for-free/ https://dotesports.com/apex-legends/news/apex-legends-ping-system-is-now-patent-free-for-accessibility https://www.nintendolife.com/news/2021/08/apex_legends_ping_system_now_patent-free_as_ea_announces_accessibility_pledge Recently, Electronic Arts (EA) announced a patent pledge that gives other companies and developers free access to five of its current accessibility-related patents and technology. The company promised not to enforce against any party for infringing any of the listed patents. Instead, EA hopes to encourage “innovation” and build new features that make video games more inclusive on a much larger scale by opening up the patents. Electronic Arts (EA) is an American video game company founded in 1982. The company owns many popular and famous games, such as The Sims, SimCity, Apex Legends, Madden NFL and FIFA. Each of the games has more than 30 or 50 million sales volume. Significantly, esports involves FIFA and Apex Legends into the event list. Apex Legends has up to 1 billion players, and it is so popular that it has a Switch version. Within the freely available patents, one of which grabs everyone’s attention -- Apex Legends’ ping system (patent No. US 11097189). The ping system in Apex Legends, which excellently allows players to make communication and teamwork quick and easy without hearing or speaking, has been praised both as an impressive alternative to voice chat and as a great accessibility feature for players with a variety of disabilities. The other patents include the technology widely used in the FIFA and Madden NFL. The innovations can automatically detect and modify colors (patent No. US 10118097 and CN 107694092) and contrast ratios (patent No. US 10878540) to improve gamers’ visibility with colorblindness and low vision. Furthermore, one of the patents relates to personalized sound technology, helping players with hearing issues by modifying or creating music based on their preferences (patent No. US 10790919). The

2021-10-22

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully!

The forum on "China's Intellectual Property-related Reform Measures and New Trends in Patent Litigation" will be held successfully! In response to the call for building a strong country with intellectual property rights, at 2 o'clock in the afternoon of October 21, the forum on "China's reform measures related to intellectual property rights and new trends in patent litigation" will be successfully held in Nanjing Jiangbei New District Industrial Technology Research and Innovation Park. The event was hosted by the Science and Technology Innovation Bureau of Nanjing Jiangbei New Area Management Committee, Nanjing Jiangbei New Area Industrial Technology Research and Innovation Park, Nanjing Intellectual Property Rights Protection Assistance Center Jiangbei New District Center, Nanjing Huaxun Intellectual Property Consultant Co., Ltd., Nanjing Intellectual Property Co-organized by the Protection Center (Nanjing Intellectual Property Rights Protection Assistance Center), Taiwan Pharmaceutical Development Association, and Gene Online. The director of Nanjing Intellectual Property Protection Center, Mou Xiaojian, delivered a speech. Director Mu expressed his warm congratulations on the holding of this event and introduced in detail the new pattern of intellectual property protection in Nanjing. He said: At present, Nanjing has implemented a rights protection assistance network in the municipal area. With full coverage, Nanjing Intellectual Property Protection Center is willing to closely communicate and interact with Nanjing's innovation entities, and provide relevant public welfare services such as rapid pre-review, rapid rights protection, and comprehensive utilization for enterprises in need. In addition, Huang Funan, CEO of Gene Online, was unable to come to congratulate due to the epidemic, and recorded a congratulatory video. In the video, he said: China Innovative Pharmaceuticals has already made many outstanding achievements on the international stage, and these are inseparable from intellectual property rights. The support of the company can also show the importance of intellectual property rights to biotechnology and pharmaceutical companies. This event invites four industry experts to focus on China's reform measures related to intellectual property rights and new trends in patent litigation, discuss with companies and universities, and make arrangements in advance. Dr. Qingchen Hou, general manager of Nanjing Huaxun Intellectual Property Consulting Co., Ltd., introduced the "Guidelines for Building a Powerful Country with Intellectual Property Rights (2021-2035)" and explained his views from four aspects: background, strategic layout, overall requirements, and organizational guarantees. . Subsequently, a detailed analysis of China's patent linkage system was carried out, and compared with the same types of cases at home and abroad, questions were raised: Why should we reward the first person who successfully challenged patents? Not the first person to file a P4 application? And have a series of discussions with you. Director Jiang Haijun of the Intellectual Property Protection Legal Committee of the Nanjing Lawyers Association gave a speech on three points: the problems after the amendment of the patent law, the enforceability of the amount of compensation, and the legal conflicts related to service inventions. Regarding the patent right evaluation report, he emphasized that the patentee, interested party or accused infringer can also proactively issue a patent right evaluation report. "Patent is a work of art that combines technology and law" is a message shared by Mr. Feng Tao from Jiangsu Junbo Law Firm at this event. Mr. Feng analyzes the big data of Chinese patent litigation cases through graphs and examples. Explore. The last topic of the event was shared by Guo Huangying, Intellectual Property Manager of Nanjing Huaxun Intellectual Property Agency (General Partnership)-China's Patent Infringement Judgment Principles and New Developments. Manager Guo explained to everyone the principles of patent infringement judgment and the necessity of patent infringement search and analysis before producing and selling products. In the intellectual property industry, ECCOM has been providing high-quality and professional comprehensive intellectual property services to enterprises and universities one step at a time. It also hopes that under the leadership of the state and the government, it will contribute to the building of a strong intellectual property nation in China. Make a contribution.

2021-10-22

Types of patents that are easily overlooked- Design Patent

Types of patents that are easily overlooked- Design Patent In recent years, as the public’s awareness of intellectual property has increased, people have begun to consciously use the patent law to protect their intellectual property rights. However, in the process of implementation, they often only focus on invention patent and utility model patent, and tend to ignore the protection of design patent. Recently, Midea sued Haotaitai for two models of CXW-300-D998 and CXW-300-D908 Haotaitai brand range hoods In the case of suspected infringement of its design patent (patent number: ZL201930621598.X), the Guangzhou Intellectual Property Court made a first-instance judgment after hearing that it determined that the two products of Haotaitai constituted infringement, and ordered it to immediately stop the infringement and compensate Midea, The company's economic losses and reasonable expenses totaled 360,000 yuan. In fact, appearance infringement cases have occurred from time to time before, such as: "Molly" blind box design patent case, "Siemens" switch design patent infringement dispute case received a compensation of 6 million yuan, three Casio watch design patents were infringed Received a compensation of 8.8 million yuan and so on. The reason why people ignore the protection of design patents, in the final analysis, is that they have insufficient knowledge of design patents. Today, let's take a look at what is protected by design patents and what rights protections can we apply for? Design patent definition: Article 2 of the "Patent Law", design patent, refers to a new design that is aesthetically pleasing and suitable for industrial applications based on the shape, pattern, or combination of products, and the combination of color, shape, and pattern. Protected range: The shape of the product; the pattern of the product; the shape and pattern of the product; the shape and color of the product; the pattern and color of the product; the shape, pattern and color of the product. Protection period: The term of protection for design patent rights is 15 years, calculated from the date of filing. What are the conditions for applying for a design patent? The design should be aesthetically pleasing Appearance patents should be suitable for industrial applications The design patent application should be novel The design patent application should be inventiveness What are the advantages and functions of design patents? Protect the rights and interests of enterprises in product designs and fight against infringements in market competition. To enhance brand value, the quality and quantity of patents are the embodiment of the company's innovation ability and core competitiveness. Receive consumer recognition. If a company's new product appearance is filed for a patent in a timely manner, its appearance design will enjoy the exclusive right. Nowadays, consumers often choose products with trendy and beautiful appearance when buying their products. Applying for a design patent is a necessary condition for applying for a high-tech enterprise.

2021-09-26

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million

Colopl Settles Patent Infringement Lawsuit with Nintendo by Paying $30 Million This August, Nintendo and a game developer Colopl announced that they have settled for patent infringement regarding White Cat Project (Shironeko Project in Japanese), a smartphone game developed by Colopl. Although both companies did not publicly share exact details of the settlement, at least it is sure that Colopl agreed to pay 3.3 billion yen (about US$30.2 million) as the settlement fee for the proceedings, including the future license of Nintendo's patents. How did the battle begin? Being developed and published by a Japanese game developer, Colopl, White Cat Project is a free-to-play action role-playing game for Android and iOS systems. The mobile game was launched in July 2014 as well as got a television anime adaptation in 2020. It is incredibly popular to have more than 50 million downloads. Furthermore, the game is set to receive a Switch version titled "Shironeko New Project". In September 2016, Nintendo noted the Colopl's game and considered that the game had infringed on several of Nintendo's technology patents. The two companies communicated with each other for over a year; however, Nintendo did not accept the explanations from Colopl, and Nintendo filed a lawsuit against Colopl at the beginning of 2018. Nintendo claimed that Colopl infringed 6 of its patents. These patents protect touch-screen joystick functionality (patent no. JP3734820), multiplayer connectivity (patent no. JP5595991, JP6271692), confirmation screens in sleep mode (patent no. JP4010533), character attacks based on touch input locations (patent no. JP4262217), and a shadow effect placed on characters hidden behind the game geometry (patent no. JP3637031). These patents almost cover various ways of game technology, especially the patent JP5595991 and JP6271692. Their patent family is wide-reaching, and many divisional applications of the family are pending in Japan. They protect a communication game system and its related devices. It is not easy to detect the patent's existence and boundary since this kind of hardcore technique is so common in the gaming field and our daily lives. The five-year patent war has been settled. After a five-year dispute, the situation appeared to turn in Nintendo's favor as the Switch maker increased its monetary demands, which convinced Colopl to strike a deal that lets it use the disputed patents. Furthermore, a Switch version of White Cat Project remains in the works at Colopl. With the extraordinary losses of Colopl, the legal battle between the two companies came to an end.

2021-09-09