Legal

The USPTO Needs Your Input Now - Help Fight NPEs

You can help support our economy, reduce wasteful NPE litigation, and stop the assertion of bad patents. All it takes is a few minutes of your time.  

The USPTO has issued a set of proposed rules, nearly all of which will make it harder for everyone, including Unified, to challenge bad patents. Examples include the invalid Shipping and Transit or Sportbrain patents, which collectively were asserted over 400 times and sparked over a thousand demand letters. Many of the new proposed rules are outside of the USPTO’s authority and plainly contradict statutes that Congress put in place and the Courts have opined on.

By placing a heavy thumb on the scale in favor of NPEs, these proposals will raise already-high litigation costs for all parties, weaken the Patent Trial and Appeals Board, and seek to stop Unified from challenging particularly bad, invalid patents. Patents that slipped through the system and should have never been issued in the first place will be asserted against American companies, particularly medium and small-sized businesses. Studies show that even a handful of these proposals would cost many hundreds of millions of dollars.   

The USPTO has asked for a limited window in which to get the public’s input, so time is of the essence. Please let the USPTO know you want a fair and open system for all, where anyone can petition the government for review of an invalid patent. That is what Congress put in place, and what the Article III Courts have blessed. This administrative agency should not be trying to overrule them. 

You can take action by selecting the green box, titled “Submit a formal comment” (here), and sharing your thoughts, however brief. All comments are due by June 20, 2023, 11:59 PM EST. It is of critical importance that the USPTO hears from real stakeholders like you.

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USPTO’s new Catch-22 targets Unified Patents in standing requirement reforms

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In a recent op-ed in IAM, Unified’s General Counsel, Jonathan Stroud, explains the issues with the USPTO’s reform proposal, including how it singles out Unified and proposes restrictions that contradict the AIA and that have been rejected in subsequent failed legislative proposals. In the link below, Mr. Stroud argues that if the agency seeks to single out Unified Patents and bar it from filing IPRs, it must also scrutinize the lack of transparency and conduct of prolific NPEs.

Click HERE to read more on IAM’s website.

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USPTO Proposed Rules Flawed - The Hill Op-Ed

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In an op-ed published on "The Hill" website, Jonathan Stroud summarizes the House Judiciary oversight hearing where USPTO Director Kathi Vidal testified regarding the Office’s proposed rulemaking. 

Policy changes at administrative agencies like the U.S. Patent and Trademark Office (USPTO) are unlikely to lead the nightly news or appear above the fold in national newspapers. But, the USPTO might be the most important agency your average American hasn’t heard of. How it works, or doesn’t, has billion-dollar consequences for the U.S. innovation economy, and for consumers.

Published on May 10, 2023, continue reading the article by clicking HERE.

Unified provides comments for USPTO Initiatives To Ensure the Robustness and Reliability of Patent Rights

Unified Patents provided comments to the USPTO's RFC on USPTO Initiatives To Ensure the Robustness and Reliability of Patent Rights and those were recently published. The comments largely support the USPTO's aims to bolster certain requirements during prosecution, such as requiring clearer written description support for claims and curtailing continuation abuse. The comments were provided by in-house counsel, Michelle Aspen and Jonathan Stroud.

Unified’s comment is available HERE.

SCOTUS Amicus Filed by Unified Edge, Supporting Curb on Over-Broad Patent Claims

On February 10, 2023, Unified Edge filed an amicus brief with the Supreme Court concerning the test for whether a patent has met the statutory requirement for enablement—i.e., the requirement that the specification sufficiently disclose the claimed invention in such full, clear, and exact terms as to enable any person skilled in the art to make and use it. 

The brief explains why the Supreme Court should maintain—across all fields of endeavor, including high tech—the Federal Circuit’s vigorous check on functional patent claims that the Federal Circuit has applied over decades of its case law (which in turn rests on 170 years of the Supreme Court’s jurisprudence). The fact-intensive investigation into enablement required by the Federal Circuit's Wands factors provides the appropriate, flexible framework for Patent Office examiners, fact-finders, trial court judges, and reviewing appellate courts to apply in assessing compliance with the statutory requirement for enablement. 

Reversal—and replacement of the full scope enablement test with Amgen’s proposed permissive standard—would invite patentees even further to pursue wildly unsupported functional claims in the Patent Office across a wide range of industries, threatening innovation and contributing to already out-of-control litigation defense and settlement costs.

Unified Edge is part of the Unified Network and advocates for the right policies, focusing on researching, organizing, providing, and promoting data-backed studies and evidence to further regulatory, business, and policy goals. Unified Edge works to keep its members up to date and informed on ongoing policies, data, and the regulatory landscape in order to move the law forward in a just, reasoned, and data-backed way. Unified Edge is represented by Lisa Ferri, Andrew Pincus, and Rich McCormick of Mayer Brown LLP and by in-house counsel, Jonathan Stroud and Ashraf Fawzy.

Read the amicus brief below: