The On-Sale Bar: Has It Changed?

A common barrier to patentability is an inventor’s unawareness of the on-sale bar. The on-sale bar falls within 35 U.S.C. § 102 and may serve as way for a patent examiner to reject a patent application or invalidate a patent if the disclosure was on sale more than one year before the application was filed. Section 102 is an absolute bar to patentability, meaning that there are no remedial measures the applicant can take. However, when Congress passed the America Invents Act (“AIA”) there was a small change in the precise language of § 102. With this small change, some thought that “secret sales” may no longer counted as a bar to patentability. To resolve this inconsistency, the Supreme Court granted certiorari to hear Helsinn Healthcare S.A. v. Teva Pharmaceutical USA, Inc.

Marijuana and Patent Law

Although cannabis is still illegal at a federal level, a majority of states in the U.S have now legalized it for either recreational or medical use.  Illegality of cannabis being illegal has not stopped the United States Patent and Trademark Office (“USPTO”) from issuing patents on related to the plant, as the USPTO has been issuing cannabis-related patents since 1942.  Nevertheless, research shows that as a result of the dichotomy between the Drug Enforcement Administration (“DEA”) and the USPTO, inventors may be timid when it comes to applying for patent protection when cannabis is involved.

Copyright Catches Up

Copyright law has traditionally been viewed as the branch of intellectual property (“IP”) law that has lagged behind patents and trademarks. Some may say that this lag is because copyright law faces technological challenges that trademarks and patents do not. For example, streaming has been a constant issue that has made it harder for copyright laws to keep up with technology. As a result, Congress has recently passed legislation to try to bring copyright laws up to speed with the rest of IP laws.  

Kavanaugh’s effect on Intellectual Property in the Supreme Court

With the potential advent of Judge Brett Kavanaugh’s confirmation to the Supreme Court of the United States, most debate has centered on how Judge Kavanaugh has ruled on key social issues such as abortion and presidential limitations. However, an issue overlooked at this point is the impact the potential Justice could have in the Intellectual Property (“IP”) field. The Supreme Court is already slated to listen to two IP cases in their 2018-2019 term.

Trademarks: Proof of Use Audit by USPTO

If you have received a US trademark registration, be prepared to 'prove' your use of the trademark in commerce.

The USPTO will conduct audits at random of the declarations of use for marks registered for multiple goods or services in the same class.  At this time, the USPTO is estimated to audit up to 10 percent of the declarations of use filed each year.  It is believed that the percentage will increase depending on the results of the audit and the number of USPTO resources that are assigned to the project.

IPRs Held to be Constitutional

The USPTO began operation of the Patent Trail and Appeal Board (“PTAB”) under the power made available to it by the American Invents Act in 2012. Since then, the PTAB has been the forum of choice to challenge the validity of existing patents through a process called Inter Partes Review (“IPR”). However, patents are private property rights and the long-standing norm has been that these kinds of rights should only be taken away in an Article III forum (judge or jury).  The case of Oil States v. Greene’s Energy Group, et al. sought to settle once and for all the constitutionality of having an Article I (executive branch) tribunal extinguish patent rights.