Court Bars Reverse Engineering
Post Sale Restrictions
on Patented Goods
CAFC patent cases schedule
Back to Future
System at the USPTO
China Awards $28 million
in Patent Infringement
A Patent Glossary
Trilateral Document Access
US Job Market
Ban on Indian Alternative Medicine
Now Short Children Can
Bars Reverse Engineering
Appeals Court Bars Reverse Engineering In DMCA Gaming Dispute. In
a decision with ramifications for reverse engineering of software, the U.S.
Court of Appeals for the 8th Circuit has affirmed a lower court’s decision
to bar “add-on” technology being used to mirror a popular online gaming network.
Post Sale Restrictions
on Patented Goods
Cartridge Remanufacturers Assn. v. Lexmark Int’l. ACRA sued Lexmark
for unfair business practices based on Lexmark’s restrictions not allowing
a third-party to refill the cartridge. ACRA argument was that this practice
was a restriction on alienability and it should be barred. According to Lexmark,
the "single use only" label on the boxes creates an enforceable contract between
Lexmark and consumers. By opening the box, you're agreed to the contract.
The district court granted summary judgment for Lexmark, finding that the
restriction on further use was a valid agreement and that Lexmark’s statements
about the pricing were accurate. On appeal, the 9th Circuit found that
the post-sale restriction was allowable because the product was patented.
Post sale conditions are generally allowed if the goods are “reasonably within
the patent grant.” According to the 9th Circuit, opening the package means
you agree to the agreement on the box. And if you break that agreement, you
could face claims under contract and patent law. Thus, this is a Box-wrap
infringement or Shrinkwrapification of Patented Goods! But, restrictions on
alienation of consumer goods (printed on the wrap) are not enforceable unless
the goods in question are patented.
Tuesday, November 8, 2005, 10:00 A.M., University of Chicago Law
04-1609 GOLDEN BLOUNT V RBT H PETERSON CO
Tuesday, November 8, 2005, 2:00 P.M., DePaul Law
05-1113 VIAD CORP V STAK DESIGN
Wednesday, November 9, 2005, 10:00 A.M., U.S. District Court
05-1122 OMEGA ENGINEERING V RAYTEK CORP
Wednesday, November 9, 2005, 2:00 P.M., Chicago-Kent Law
05-1126 GRAYZEL V ST. JUDE MEDICAL
Thursday, November 10, 2005, 10:00 A.M., Northwestern Law
05-1144 HARRAH'S V STATION CASINOS
Back to Future
Celera Diagnostics of Alameda, Calif., has uncovered four genetic variations
that appear to boost the likelihood of a heart attack as much as those familiar
risk factors. The company is working on a test to alert patients and their
doctors to the hidden dangers. A future in which people who apparently have
the same disease may receive widely varied treatments depending on the molecular
mechanisms behind each individual's illness. For some patients, that
future is now. A molecular test can determine which breast cancer patients
could benefit from Genentech Inc.'s drug Herceptin and who should receive
other treatments because Herceptin will not help them.
Ancient Ayurveda, which is still practiced in India and largely ignored
by the government of India, is based on the same premise that each individual
is unique and the treatment should be unique based on the patient's tatvam
(disposition based on humor). Molecular Diagnostic market will grow and could
exceed $5 billion in the next five or six years, according to experts in the
A U.S. Food and Drug Administration advisory panel endorsed a new rheumatoid
arthritis drug made by New York-based Bristol Myers Squibb Co. Orencia
is the fourth major new prescription treatment to be approved for rheumatoid
arthritis, a debilitating disease that destroys joints. Already on the market
are Abbott's Humira, approved in December 2002, Johnson & Johnson's Remicade,
approved in 1999 and Amgen's Enbrel, approved in 1998. All four companies
are targeting a U.S. market of an estimated 2 million rheumatoid arthritis
sufferers. The three major rivals already on the market generate more than
$5 billion in annual U.S. sales and are considered blockbusters each generating
more than $1 billion in annual sales.
About 18 million people in the United States are thought to have diabetes,
although many do not know it. Untreated diabetes can lead to blindness, loss
of limb function, or death. Recently the first inhaled form of insulin
to treat diabetes was recommended by a Food and Drug Administration advisory
panel. The panel endorsed a new pill that helps control blood sugar
levels as well as cholesterol in people with the most common form of the condition.
The drug, muraglitazar, will be marketed under the name Pargluva. It was
developed by Bristol-Myers Squibb and Merck & Co. The non-insulin treatment
is designed for people with Type 2 diabetes, the most common form of the
condition that occurs most often in adults who are overweight. Documents
released by the FDA this week raised concerns that muraglitazar may increase
the risk to people with heart problems.
Filing System at the USPTO
Patent attorneys have been suggesting for some time that the USPTO completely
revamp its electronic filing system (EFS) in favor of a system that operates
using PDFs, like PCT filing. Now, the USPTO is planning to revamp its
electronic filing system (EFS). The new system would operate using PDFs and
is accessible through Internet Explorer. Limited beta testing will begin in
December 2005, and the EFS-WEB is scheduled for a Spring 2006 release.
Acting Commissioner for Patents John Doll reportedly described the existing
e-filing system at the August 12, 2005 Independent Inventor Conference on
the USPTO's new campus as "cumbersome," "very difficult" and "dreadful."
Visit also USPTO.
U. S. Under Secretary of Commerce for Intellectual Property Jon Dudas said,
“The strength of our nation’s economy rests on the ingenuity of American inventors.”
“In the 21st century, securing protection for your inventions is almost as
important as the invention itself…. As inventors turn their ideas and discoveries
into viable, marketable products, it is critically important for them to
get the protection they need to safeguard their inventions and help protect
our overall economy,” he continued. In fact, the U.S. Postal Service
may be the only organization that likes the current system. Since paper copies
of U.S. patent applications must be filed via Express Mail, the Patent Office
is the "largest recipient of overnight mail in the world," said Margaret
Focarino, Deputy Commissioner for Patent Operations.
Awards $28 million in Patent Infringement
Chemical producer Celanese Corp. on Tuesday was awarded $28 million by a
Chinese court in a chemical patent infringement lawsuit against the mammoth
publicly-held China Petrochemical Development Corp.
A Copyright is a form of protection provided to the authors of “original
works of authorship” including literary, dramatic, musical, artistic, and
certain other intellectual works, both published and unpublished. The 1976
Copyright Act generally gives the owner of copyright the exclusive right to
reproduce the copyrighted work, to prepare derivative works, to distribute
copies or phonorecords of the copyrighted work, to perform the copyrighted
work publicly, or to display the copyrighted work publicly.
Copyright protection subsists from the time the work is created in fixed
form. The copyright in the work of authorship immediately becomes the property
of the author who created the work. Only the author or those deriving their
rights through the author can rightfully claim copyright. Copyright
protection is available for all unpublished works, regardless of the nationality
or domicile of the author.
The way in which copyright protection is secured is frequently misunderstood.
Although there are certain definite advantages to registration, no publication
or registration or other action in the Copyright Office is required to secure
Copyright is secured automatically when the work is created, and a work
is "created" when it is fixed in a copy or phonorecord for the first time.
"Copies" are material objects from which a work can be read or visually perceived
either directly or with the aid of a machine or device, such as books, manuscripts,
sheet music, film, videotape, or microfilm. "Phonorecords" are material objects
embodying fixations of sounds (excluding, by statutory definition, motion
picture soundtracks), such as cassette tapes, CDs, or LPs. Thus, for example,
a song (the "work") can be fixed in sheet music (" copies") or in phonograph
disks (" phonorecords"), or both. If a work is prepared over a period
of time, the part of the work that is fixed on a particular date constitutes
the created work as of that date.
The use of a copyright notice is no longer required under U. S. law, although
it is often beneficial. Because prior law did contain such a requirement,
however, the use of notice is still relevant to the copyright status of older
A work that is created (fixed in tangible form for the first time) on or
after January 1, 1978, is automatically protected from the moment of its creation
and is ordinarily given a term enduring for the author's life plus an additional
70 years after the author's death. In the case of "a joint work prepared
by two or more authors who did not work for hire," the term lasts for 70
years after the last surviving author's death. For works made for hire, and
for anonymous and pseudonymous works (unless the author's identity is revealed
in Copyright Office records), the duration of copyright will be 95 years
from publication or 120 years from creation, whichever is shorter.
Under the law in effect before 1978, copyright was secured either on the
date a work was published with a copyright notice or on the date of registration
if the work was registered in unpublished form. In either case, the copyright
endured for a first term of 28 years from the date it was secured. During
the last (28th) year of the first term, the copyright was eligible for renewal.
The Copyright Act of 1976 extended the renewal term from 28 to 47 years for
copyrights that were subsisting on January 1, 1978, or for pre-1978 copyrights
restored under the Uruguay Round Agreements Act (URAA), making these works
eligible for a total term of protection of 75 years. Public Law 105-298, enacted
on October 27, 1998, further extended the renewal term of copyrights still
subsisting on that date by an additional 20 years, providing for a renewal
term of 67 years and a total term of protection of 95 years.
It is illegal for anyone to violate any of the rights provided by the copyright
law to the owner of copyright. These rights, however, are not unlimited in
scope. Sections 107 through 121 of the 1976 Copyright Act establish limitations
on these rights. In some cases, these limitations are specified exemptions
from copyright liability. One major limitation is the doctrine of "fair use,"
which is given a statutory basis in section 107 of the 1976 Copyright Act.
In other instances, the limitation takes the form of a "compulsory license"
under which certain limited uses of copyrighted works are permitted upon payment
of specified royalties and compliance with statutory conditions. For further
information about the limitations of any of these rights, consult the copyright
law or write to the
A Patent Glossary
All too frequently, intellectual property attorneys use patent jargon and,
as a result, others are unable to understand. To reduce potential confusion,
glossary by Arnold B. Silverman and George K. Stacey provides general definitions
of a number of frequently used patent terms with a view toward aiding in the
comprehension of such terms at their
Also visit: Brown &
Michaels, USPTO Web
site and Patently-O.
The USPTO is currently considering whether and to what extent the documents
contained in the files of published foreign patent applications may be entered
(imported) into and form official record in the US Patent application files.
For a number of years tri-lateral (US, EPO, Japan) offices have been considering
ways to maximize the exploitation of search results. They have established
Trilateral Document Access (TDA) standard by which any of the three offices
can access the electronic files of the published applications in the other
two offices. It is proposed to expand TDA usage to permit examiners to import
published documents from donor offices into the application file of the
recipient office. These imported files would become part of the official
prosecution history. The PTO would, for now, restrict importation to (i)
application as filed; (ii) list of cited references; (iii) available reference
copies in the file; and (iv) search reports without examiner comments or
US Job Market
The administrative assistants of the future, irregardless of the roles they
assume, will need strong technology skills. In a recent survey developed by
OfficeTeam, 52 percent of executives polled cited information technology as
the area of special training that will be most useful for administrative assistants
in the future. The survey was conducted by an independent research firm and
includes responses from 150 senior executives at the nation's 1,000 largest
In a recent study, the US Department of Labor reported that 72.3 million
people use a computer at work. Over 71.8% of that group uses the computer
to connect to the Internet or use e-mail. 67% regularly use Word Processing
software, like MS Word. 62.3% use spreadsheets and databases and over half
use calendar and scheduling software. So, if you don't have computer
skills, you're not qualified for over 50% of the jobs out there.
Countries from Ireland to India are luring the highly trained and valuable
immigrants back home, and even getting U.S. citizens to follow, says David
Heenan, author of a new book, "Flight Capital: The Alarming Exodus of America's
Best and Brightest…. It used to be that the U.S. was really unchallenged for
its immigrants," Heenan says. "From Alfred Hitchcock to Albert Einstein, immigrants
have come here and stayed here." But shifting attitudes about immigrants
in the US have created a "chillier atmosphere" for many. Other countries
have begun doing their darnedest to attract immigrants now in the United
States who have highly desirable skills in such areas as engineering and
science," Heenan says. Even Americans trained in those areas, are being recruited
to practice their skills in other countries. "Many homegrown Americans are
finding happiness overseas. Other countries are really putting on the full-court
press to get them…. The loss of this kind of talent is really going to come
back and haunt us," says Heenan.
Indian Alternative Medicine
The Canadian Government last month banned the sale of Indian ayurvedic and
Islamic medicines in the country, claiming that they contain high levels of
metals like lead, mercury and arsenic, which pose grave health risks. Some
of the products banned include Zandu Pharmaceuticals' Maha Sudarshan Churna
Powder, Yograj Guggul tablets and Sudarshan tablets; Dabur India's Maha Sudarshan
Churna and Shilajit capsules; Karela Capsules manufactured by Himalaya Drug
Company; and Safi Liquid from Hamdard Wakf-India. As per a statement on Health
Canada website, "Ayurvedic medicinal products are used in traditional Indian
healing and are often imported from India. According to the principles of
Ayurvedic medicine, heavy metals may be used because of their reputed therapeutic
properties. However, improper manufacturing processes may result in dangerously
high levels of heavy metals remaining in the final product.
Short Children Can Grow Taller
The Food and Drug Administration has approved the first drug to treat children
who suffer from a condition that prevents them from growing. Until now,
growth hormones have been the only treatment option for children short in
stature because of hormone deficiencies. The drug helps children whose
growth failure is linked to abnormally low levels of a hormone called IGF-1.
About 6,000 children in the U.S. are afflicted by the condition, according
to Increlex's manufacturer, Tercica Inc. of Brisbane.