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Friday, 25 October 2013 00:44

Upcoming 2013 USPTO Fee Changes

A number of patent fee changes will go in effect January 1, 2014. Notably, the issue fees of all applications will decrease dramatically. Small and micro entity fees will now be available for a number of PCT fees. The assignment recordation fee has also been eliminated if filing electronically.

The New York Attorney General's office recently levied $350,000 in penalties against 19 companies for astroturfing and false endorsements. Dubbed "Operation Clean Turf," the year long investigation into the reputation management industry found that companies had flooded the Internet with fake consumer reviews on websites including Yelp, Google, and CitySearch. Throughout the investigation, the Attorney General's office found that many companies, including those in the Search Engine Optimization (SEO) industry, used techniques to hide their identities, such as creating fake profiles on review websites and paying copywriters from around the world for $1 to $10 per review.

California is preparing to adopt several additional privacy and data breach notification laws this month. These include S.B. 46, a notification requirement for breaches of an individual's user name or email address; SB 568, which extends the federal COPPA rules to all children under 18 years of age; and A.B. 370, a do-not-track disclosure law requiring disclosure about behavioral tracking. These laws affect not only companies based in the state, but all companies that do business within the state.

Four months after the CLS Bank v. Alice opinion, the Federal Circuit continues to struggle with subject matter eligibility of computer-related inventions under § 101 of the U.S. patent laws. In Accenture Global Services, GMBH v. Guidewire Software, Inc. (Fed Cir. 2013), Chief Judge Rader and Judge Lourie continue their disparate dialog that began in CLS Bank Int'l v. Alice Corp, and continued in Ultramercial Inc. v. Hulu LLC. However, contrary to the result in Ultramercial, here the party arguing against eligibility of computer programs won out.

It was, perhaps illy established, that transitory signal claims are per se unpatentable under Section 101 of the U.S. patent laws. This was established by in re Nuijten, a Federal Circuit decision dating back to 2007. Recently, in Ex Parte Mewherter, the USPTO has went a step further to hold that a standard Beauregard claim (a computer program on a computer readable medium) is not patent eligible, simply because it could encompass transitory signals. The case has recently been designated by the Patent Trial and Appeal Board (PTAB) as a precedential decision.

The Federal Circuit's decision in CLS Bank left many guessing as to what might be considered patent eligible subject matter under § 101 of the U.S. patent laws. In a more recent and less known opinion, Ultramercial, Inc. v. Hulu, LLC (Fed. Cir. 2013), a three judge panel attempted to provide some additional guidance in light of the CLS Bank indecision. Of note is that the panel included the authors of the two main opposing opinions in CLS Bank, Chief Judge Rader and Judge Lourie. However, rather than authoring different holdings, the panel agreed that the claims at issue in this case met the requirements of § 101.

The White House has officially overturned a pending ban by the U.S. International Trade Commission (USITC) that would have prohibited sales and imports of the AT&T versions of the iPhones and iPads under U.S. Patent No. 7,706,348. The move, which was thought to have little chance of success, represents the first veto of a USITC decision since 1987. The decision to veto the exclusion of Apple products "in the public interest" was made pursuant to Presidential authority under the Tariff Act of 1930, 19 U.S.C. 1337(j), which has been exercised only on five prior occasions.

Does the Federal Communications Commission (FCC) have the authority to enforce rules designed to keep the Internet as an open and neutral platform? The question regarding network neutrality is in front of a federal appeals court today in Verizon v. FCC. The outcome of this case could have profound implications in how Internet service providers (ISPs) are able to operate in the future, which will inevitably affect anyone who uses the Internet, from consumers to startups and tech giants who have built billion dollar businesses online.

With potentially hundreds of new generic top level domains (“gTLDs,” e.g. .store, .law, .food) just around the corner, the Internet Corporation for Assigned Names and Numbers (ICANN)—the organization response for overseeing Internet domain name allocations--recently opened its Trademark Clearinghouse (TMCH), where current brand owners can record their existing trademarks.

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