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hyper · 11-10-2003, 03:42 PM

thought this was a good read if things try to get twisted around

A Disclaimer May Bar Later Broadening of Claims Through Reissue: In Vectra Fitness, Inc. v. TNWK Corp., 162 F.3d 1379, 49 USPQ2d 1144 (Fed. Cir. 1998), the Federal Circuit held that a patentee may not use a reissue application to add new claims broader than the claims remaining after a disclaimer but narrower than the original claims. The patentee, Vectra, obtained a patent in 1989. Later, it became aware of previously unknown prior art that would invalidate some of the patent?s claims. In 1990, Vectra submitted to the PTO a disclaimer under 35 U.S.C. § 253, and disclaimed the broadest claims of the patent. The PTO added the disclaimer to the file wrapper of the patent, but it neither entered the disclaimer on the cover page of the file wrapper, nor published the disclaimer in the Official Gazette.

Later, in 1991, Vectra filed a reissue application and sought to add new claims to its patent. The new claims had a narrower scope than the original claims of the patent, but a broader scope than the claims remaining in the patent after the 1990 disclaimer. The reissue application, including the new claims, issued in 1994. In 1996, Vectra sued TNWK for infringement of the reissue patent. On TNWK?s motion, the district court invalidated the new claims added by reissue because they impermissibly enlarged the scope of the original patent more than two years after the date of the original issue.

On appeal to the Federal Circuit, Vectra argued that the PTO?s mishandling of the disclaimer prevented it from ?being ?recorded? within the meaning of that term in 35 U.S.C. § 253.? The Federal Circuit disagreed and pointed out that, under 37 C.F.R. § 1.321(a) and M.P.E.P. § 317.01, the recording of a disclaimer ?is not dependent upon the actions taken by the PTO.? In addition, the court noted that nothing in the patent statutes and regulations ?requires any action by the PTO for a disclaimer to be ?recorded.?? As long as the disclaimer arrived at the PTO ?in proper form and with the appropriate filing fee,? it ?was recorded on that date regardless of handling by the PTO.?

Turning to the merits of the dispute, the Federal Circuit reiterated that 35 U.S.C. § 251 prohibits broadening the scope of the claims of the original patent more than two years after its grant. Thus, the validity of the new claims added through reissue depends on whether the disclaimed claims are part of the ?original patent.? The court rejected Vectra?s argument that the phrase ?claims of the original patent? in section 251 refers to the claims of the patent when it issued, unaffected by a later disclaimer. The term ?considered as part of the original patent? in section 253 means that courts will treat the patent ?as if the disclaimed claims never existed.? When Vectra invoked section 253 and disclaimed the broadest claims of its original patent, it ?effectively eliminated those claims from the original patent.? Vectra agreed that the disclaimer effectively eliminated the claims from the ?original patent? within the meaning of that term in section 253. But Vectra contended that the construction of the phrase ?original patent? in section 253 has nothing to do with the interpretation of the same term in section 251. The Federal Circuit rejected Vectra?s assertion and concluded that the term ?original? patent has the same meaning in the two closely related statutes.

The court also rejected Vectra?s arguments on public policy grounds. The public has a right to rely on the public record of a patent to determine the scope of its claims. That reliance allows businesses and others in the society to plan their future conduct in ?as certain an environment as possible.? Once the two-year window for broadening claims of a patent through reissue closes, the pubic should be able to rely on the scope of the non-disclaimed claims. Under Vectra?s proposed approach, a patentee could improperly reclaim previously disclaimed subject matter any time during the term of the patent. Such recapture would ?render disclaimers a nullity? and prevent the public from relying on the patent?s public record. The court therefore affirmed the district court?s judgment invalidating the new claims added through reissue.

hyper · 11-10-2003, 03:44 PM

What Is QAS?
By Cliff Crowder

QAS is an acronym for Quality Assurance Specialist. You can find these specialists in each technology center at the Patent and Trademark Office (PTO). In fact, they serve as a resource for patent examiners.

A QAS assures that quality examinations are performed on patent applications in each technology center. For example, they do in-process reviews of Office actions on customer focus related issues, they enter the results of reviews in a shared database, they analyze in-process review and other data to track quality output trends, and they develop training to address areas that need improvement.

In addition, QASs conduct liaison activities with the Office of Patent Quality Review and the Center for Quality Services to monitor quality, to review customer feedback, and to plan training.

Each QAS is able to answer specific questions related to his or her technology center. For instance, the QAS in Technology Center 1600 can expertly answer questions on biotechnology related quality issues. Similarly, the QAS in Technology Center 2700 can expertly answer questions on computer related quality issues.

The QASs have formed a network at the PTO and meet periodically to discuss common quality issues and to share current best practice information. Quality is the concern of all QASs and they help to ensure that quality products are issued to the public.

If you have a quality question or would like to meet with a QAS to discuss a quality-related issue, E-mail or call one of the QASs listed below.

Technology Center Specialist Telephone
1600 Rob Hill 308-4314
1700 Pat Ryan 308-2383
2700 Jack Harvey 305-9705
Gareth Shaw 305-8547
Reba Elmore 305-9706
2800 Paul Dzryzenski 308-4822
3600 Dave Mitchell 308-0361
3700 Cliff Crowder 308-0949

hyper · 11-10-2003, 03:53 PM

find something in PRINT

The Patent Act also encourages the disclosure of secret information in another way. It creates an incentive for inventors and businesses to publish their new technologies early, even if they do not intend to patent them, since the printed publication of an invention can disqualify another who might independently arrive at the same discovery from obtaining exclusive patents rights for it in the United States.

Gemini · 11-10-2003, 04:05 PM

Then the question MIGHT be do any of the patents name the internet SPECIFICALLY? Short attention span hit me when I had time to read them and I skipped over 'em pretty quick. If NOT then they might have that lil hurdle to clear with precedent already set.

So prior art might be a moot point. I'd think fr would have investigated that angle but perhaps not.

hyper · 11-10-2003, 04:12 PM

Quote:

Originally posted by Gemini
Then the question MIGHT be do any of the patents name the internet SPECIFICALLY? Short attention span hit me when I had time to read them and I skipped over 'em pretty quick. If NOT then they might have that lil hurdle to clear with precedent already set.

So prior art might be a moot point. I'd think fr would have investigated that angle but perhaps not.

yep, i think the internet part is gonna be a hurdle for them too
because now with the internet
we are into fiber optics
http://www.internetnews.com/xSP/article.php/131041

Mr.Fiction · 11-10-2003, 05:40 PM

Quote:

Originally posted by hyper

the Federal Circuit reiterated that 35 U.S.C. § 251 prohibits broadening the scope of the claims of the original patent more than two years after its grant.

hyper · 11-10-2003, 06:02 PM

doesnt it just ring in your ears

11-10-2003, 03:42 PM	#1
hyper Confirmed User Join Date: Mar 2002 Location: Mass Ass Posts: 5,294	More Shit relevant to the A Claim thought this was a good read if things try to get twisted around A Disclaimer May Bar Later Broadening of Claims Through Reissue: In Vectra Fitness, Inc. v. TNWK Corp., 162 F.3d 1379, 49 USPQ2d 1144 (Fed. Cir. 1998), the Federal Circuit held that a patentee may not use a reissue application to add new claims broader than the claims remaining after a disclaimer but narrower than the original claims. The patentee, Vectra, obtained a patent in 1989. Later, it became aware of previously unknown prior art that would invalidate some of the patent?s claims. In 1990, Vectra submitted to the PTO a disclaimer under 35 U.S.C. § 253, and disclaimed the broadest claims of the patent. The PTO added the disclaimer to the file wrapper of the patent, but it neither entered the disclaimer on the cover page of the file wrapper, nor published the disclaimer in the Official Gazette. Later, in 1991, Vectra filed a reissue application and sought to add new claims to its patent. The new claims had a narrower scope than the original claims of the patent, but a broader scope than the claims remaining in the patent after the 1990 disclaimer. The reissue application, including the new claims, issued in 1994. In 1996, Vectra sued TNWK for infringement of the reissue patent. On TNWK?s motion, the district court invalidated the new claims added by reissue because they impermissibly enlarged the scope of the original patent more than two years after the date of the original issue. On appeal to the Federal Circuit, Vectra argued that the PTO?s mishandling of the disclaimer prevented it from ?being ?recorded? within the meaning of that term in 35 U.S.C. § 253.? The Federal Circuit disagreed and pointed out that, under 37 C.F.R. § 1.321(a) and M.P.E.P. § 317.01, the recording of a disclaimer ?is not dependent upon the actions taken by the PTO.? In addition, the court noted that nothing in the patent statutes and regulations ?requires any action by the PTO for a disclaimer to be ?recorded.?? As long as the disclaimer arrived at the PTO ?in proper form and with the appropriate filing fee,? it ?was recorded on that date regardless of handling by the PTO.? Turning to the merits of the dispute, the Federal Circuit reiterated that 35 U.S.C. § 251 prohibits broadening the scope of the claims of the original patent more than two years after its grant. Thus, the validity of the new claims added through reissue depends on whether the disclaimed claims are part of the ?original patent.? The court rejected Vectra?s argument that the phrase ?claims of the original patent? in section 251 refers to the claims of the patent when it issued, unaffected by a later disclaimer. The term ?considered as part of the original patent? in section 253 means that courts will treat the patent ?as if the disclaimed claims never existed.? When Vectra invoked section 253 and disclaimed the broadest claims of its original patent, it ?effectively eliminated those claims from the original patent.? Vectra agreed that the disclaimer effectively eliminated the claims from the ?original patent? within the meaning of that term in section 253. But Vectra contended that the construction of the phrase ?original patent? in section 253 has nothing to do with the interpretation of the same term in section 251. The Federal Circuit rejected Vectra?s assertion and concluded that the term ?original? patent has the same meaning in the two closely related statutes. The court also rejected Vectra?s arguments on public policy grounds. The public has a right to rely on the public record of a patent to determine the scope of its claims. That reliance allows businesses and others in the society to plan their future conduct in ?as certain an environment as possible.? Once the two-year window for broadening claims of a patent through reissue closes, the pubic should be able to rely on the scope of the non-disclaimed claims. Under Vectra?s proposed approach, a patentee could improperly reclaim previously disclaimed subject matter any time during the term of the patent. Such recapture would ?render disclaimers a nullity? and prevent the public from relying on the patent?s public record. The court therefore affirmed the district court?s judgment invalidating the new claims added through reissue. __________________

11-10-2003, 03:44 PM	#2
hyper Confirmed User Join Date: Mar 2002 Location: Mass Ass Posts: 5,294	What Is QAS? By Cliff Crowder QAS is an acronym for Quality Assurance Specialist. You can find these specialists in each technology center at the Patent and Trademark Office (PTO). In fact, they serve as a resource for patent examiners. A QAS assures that quality examinations are performed on patent applications in each technology center. For example, they do in-process reviews of Office actions on customer focus related issues, they enter the results of reviews in a shared database, they analyze in-process review and other data to track quality output trends, and they develop training to address areas that need improvement. In addition, QASs conduct liaison activities with the Office of Patent Quality Review and the Center for Quality Services to monitor quality, to review customer feedback, and to plan training. Each QAS is able to answer specific questions related to his or her technology center. For instance, the QAS in Technology Center 1600 can expertly answer questions on biotechnology related quality issues. Similarly, the QAS in Technology Center 2700 can expertly answer questions on computer related quality issues. The QASs have formed a network at the PTO and meet periodically to discuss common quality issues and to share current best practice information. Quality is the concern of all QASs and they help to ensure that quality products are issued to the public. If you have a quality question or would like to meet with a QAS to discuss a quality-related issue, E-mail or call one of the QASs listed below. Technology Center Specialist Telephone 1600 Rob Hill 308-4314 1700 Pat Ryan 308-2383 2700 Jack Harvey 305-9705 Gareth Shaw 305-8547 Reba Elmore 305-9706 2800 Paul Dzryzenski 308-4822 3600 Dave Mitchell 308-0361 3700 Cliff Crowder 308-0949 __________________

11-10-2003, 03:53 PM	#3
hyper Confirmed User Join Date: Mar 2002 Location: Mass Ass Posts: 5,294	find something in PRINT The Patent Act also encourages the disclosure of secret information in another way. It creates an incentive for inventors and businesses to publish their new technologies early, even if they do not intend to patent them, since the printed publication of an invention can disqualify another who might independently arrive at the same discovery from obtaining exclusive patents rights for it in the United States. __________________

11-10-2003, 04:05 PM	#4
Gemini Confirmed User Join Date: Jan 2001 Location: o-HI-o Posts: 7,183	Then the question MIGHT be do any of the patents name the internet SPECIFICALLY? Short attention span hit me when I had time to read them and I skipped over 'em pretty quick. If NOT then they might have that lil hurdle to clear with precedent already set. So prior art might be a moot point. I'd think fr would have investigated that angle but perhaps not. __________________ <center><a target="_blank" href="http://dev.datedollars.com/index.php?s=signup&aid=535&cfg=aac"><img border="0" src="http://216.130.172.224/gfy/gsig.gif" width="490" height="100"></a><br><a href="http://dev.datedollars.com/index.php?s=signup&aid=535&cfg=aac" target="_blank"><b><font face="Arial"><font color="#FF99FF"> Buy me away from Slavedriver Smokey!<br>It's May Sig Sweeps!<font></b></center>

11-10-2003, 06:02 PM	#7
hyper Confirmed User Join Date: Mar 2002 Location: Mass Ass Posts: 5,294	doesnt it just ring in your ears __________________