We end the year with a few random nuggets…..
1) As reported by the Seattle Times, more than 100 companies are opposing Microsoft’s position in a case pending before the U.S. Supreme Court that challenges the “clear and convincing” burden of evidnece standard used in patent infringement cases. Briefly, in a patent infringement case, a party challenging the validity of the patent must present clear and convincing evidence that it is invalid. This standard of proof is above that required in most litigation (which uses the preponderance of evidence standard). If Microsoft prevails, patents will be less valuable…so, this is an important case to watch. The companies opposing Microsoft’s position include Amgen, Eli Lilly, Genentech, DuPont and Monsanto. Those agreeing with Microsoft include Google, Apple, and Wal-Mart.
2) Many clients have wondered if there is anything that can be done when a competitor rips off an idea after a patent application has been filed but before issuance. While it is certainly correct that the competitor cannot be sued for patent infringement (because the patent has not yet issued), the Patent Office does allow for a filing a special petition to accellerate examination of the case. So, if you have evidence that a competitor may be copying your invention, please bring it to your patent attorney’s attention, and ask that he or file a petition to accelerate examination of the case . (It does require a small fee ($130), a search, and attorney time to draft and file the petition).
3) On the subject of accellerated examination, remember that if any one of the inventors is age 65 or over or seriously ill, the case can be accellerated with the filing of proper petition.