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New Proposed 101 Legislation

Jim Ruttler, Patent Attorney

Posted Friday, February 10, 2017 by Jim Ruttler

Anyone following patent law over the past few years is aware of the uncertainty with respect to patent eligibility. The statute is clear that all useful machines, compositions, and processes are eligible, but the Courts have mucked it all up with judicially created exceptions to the rule. It has gotten so bad that it is difficult to know where the lines is for patent eligibility for some life science and computer program inventions.

The IPO has set forth the following proposed claim amendment seeking to eliminate the judicial exceptions once and for all and reset the law on patent eligibility. The brackets indicate removed terms from the present statute in (a). The sections (b) and (c) are completely new.

101 Inventions patentable.

101(a) ELIGIBLE SUBJECT MATTER: Whoever invents or discovers, and claims as an invention, any [[new and]] useful process, machine, manufacture, [[or]] composition of matter, or any [[new and]] useful improvement thereto, shall be entitled to [[thereof, may obtain]] a patent for a claimed invention thereof [[therefor]], subject only to the exceptions, conditions, and requirements set forth in this Title [[of this title]].

101(b) SOLE EXCEPTION TO SUBJECT MATTER ELIGIBILITY: A claimed invention is ineligible under subsection (a) if and only if the claimed invention as a whole, as understood by a person having ordinary skill in the art to which the claimed invention pertains, exists in nature independently of and prior to any human activity, or exists solely in the human mind.

101(c) SOLE ELIGIBILITY STANDARD: The eligibility of a claimed invention under subsections (a) and (b) shall be determined without regard as to the requirements or conditions of sections 102, 103, and 112 of this Title, the manner in which the claimed invention was made or discovered, or the claimed invention’s inventive concept.

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Still No Clear Answers on Director Lee of USPTO

Jim Ruttler, Patent Attorney

Posted Tuesday, January 24, 2017 by Jim Ruttler

Last week there were credible rumors that Michelle Lee was being asked to stay on as the Director of the USPTO. This week there are rumors that this has been reconsidered. Gene Quinn at has been following this story closely. He is reporting that there may be a division within the Trump team about whether to keep Lee or not. There are apparently some people that are close to Lee and Trump and who are advocating for her continued leadership at the USPTO. However, there are apparently some very loud voices within the Trump team that are advocating for a clear break from Obama’s appointees.

Most patent owners would agree that Michelle Lee is not good for patents. The only people that do advocate her continued role are those that want patents to be easier to invalidate and less valuable.

My hope and that of most patent attorneys and patent owners is that Trump will choose a new candidate that can bring clarity and value back to patents. This will encourage more investment and produce more high quality jobs.

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Director Lee Staying on Under Trump?

Jim Ruttler, Patent Attorney

Posted Thursday, January 19, 2017 by Jim Ruttler

Breaking news is being reported by IPWatchdog and PatentlyO that current Patent Office Director Michelle Lee will be staying on under President Trump. This is quite a surprise by many in the patent community who expected Trump to choose another person to fill the job of running the Patent Office.

There is no information yet as to how long Lee may stay on as it may be a temporary transition until Trump can find another candidate.

My hope and belief is that Director Lee will adopt a more conservative and stronger view of patents under Trump.

More information to come as soon as it is available.

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2016 TTAB Decisions Reaffirm Need for Good Searching in Beginning

Daniel Mills, Trademark Attorney

Posted Thursday, January 12, 2017 by Daniel Mills

My favorite trademark blog The TTAB Blog, created by John L. Welch, has compiled the results of the 2016 TTAB decisions in appeals covering the two most common reasons trademarks are refused - likelihood of confusion and mere descriptiveness.

For section 2(d) likelihood of confusion refusals, Mr. Welch counted 249 refusals. Of those, 228 were affirmed and only 21 were reversed. That is 91.5%.

For Section 2(e)(1) merely descriptive the numbers were similar. 91 refusals of which 82 were affirmed and only 9 reversed. That is 90.1%.

The most significant idea these numbers tell me for my practice and how I counsel my clients is that search is more important than ever when deciding on a new trademark or brand. Search is as much art as it is science, and even the best search is not 100%, but a good search for confusion and a thorough understanding of the descriptiveness standards allow me to help clients avoid these potential refusals. The only sure way to beat a refusal is to not get one in the first place.

This can be a frustrating experience for both attorney and clients, because many times the top choice(s) of clients are often eliminated immediately with a knockout search. The client must go back to the drawing board to come up with another choice, or in some cases dozens of choices. However, frustrating it may be, the time spent up front is a wise investment. The old adage about prevention and cure are true. A little time and money spent at the beginning can save a lot of money and headache down the road.

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New Secretary of Commerce: Wilbur Ross

Jim Ruttler, Patent Attorney

Posted Tuesday, December 6, 2016 by Jim Ruttler

The anti-patent and anti-IP policies of the last administration appear to be switftly reversing course. Whether you like Obama or not, it is undisputable that the patent system has gotten weaker under his administration. Examination has been more difficult and the PTAB rules have been stacked against patent owners making it easier to invalidate issued patents. Well, that is all about to change with the nomination of pro-business pro-intellectual property nominee Mr. Wilbur Ross for the head of the commerce department, which runs the Patent Office.

Mr. Ross has expressed appreciation for the patent system and its role in spurring economic growth and encouraging innovation. Here in a recent article ( Mr. Ross discusses in an interview how important patents are in the competition for the new World economy, especially with China.

Even more recently, Mr. Ross authored an editorial in the Washington Post discussing how the new administration’s policies will go right after intellectual property theft and crack down on this practice to boost U.S. investment and manufacturing. (

Whether you are pro-Trump or not, almost everyone in America would agree that being pro-innovation is good for America. The fact that this has not been the policy of the Patent Office is surprising, but fortunately appears to be short-lived. It should be an exciting few years for innovators and inventors.

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News and Announcements

Tuesday, January 24, 2017
More Rumors and No Answers Regarding Director Lee learn more +
Thursday, January 19, 2017
Michelle Lee Rumored to Be Staying as PTO Director learn more +
Tuesday, August 30, 2016
U.S. Patent Office: China Is Working Toward Strong Patent System learn more +
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