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 71 
 on: 12-07-17 at 04:29 pm 
Started by jkornick07 - Last post by jkornick07
(All of the following are just examples to allow discussion, but not the reality of the situation of the exact situation I am curious about).

If I were to make slight changes to a trademarked catchphrase and sell products showing the new phrase would it be infringement. Using "That's Hot!", could I make shirts saying "That's Not Hot!" or "Now That's Hot!" to make fun of or provide the opposite view point. Even though it would be somewhat of a parody on the original phrase, merchandise may be sold.

Thanks for any assistance.

 72 
 on: 12-07-17 at 03:53 pm 
Started by EDCGadgetGeek - Last post by lazyexaminer
I recall reexam office actions, involving patents already having clearly established values, having a clear impact on stock prices. I've never seen anything about brand new patents having any significant immediate effect. I say immediate because there are so many variables, if not immediate it would be impossible to isolate the patent as the important variable.

 73 
 on: 12-07-17 at 03:49 pm 
Started by EDCGadgetGeek - Last post by Robert K S
In order for that strategy to work to realize any long-term gains you'd have to have (a) advance or very early awareness of an allowance of a patent that would either (b1) permit the owner to own an existing or emerging market or otherwise (b2) become a dominant player in that market with significant competitive advantage which means (c) fully understanding the market, and sales trends in that market, (d) understanding the competitive advantages of the patented product or process, (e) having relative certainty that the patent could not be designed-around, (f) having relative certainty that the patent would not be found invalid, (g) having relative certainty that competitor IP would not preclude the patentholder's freedom to operate, and (h) having relative certainty that the patentholder would be able to bear cost of any litigation over the patent brought by competitors.  Any maybe other factors.

Because some of the factors I've outlined above deal with long-term effects, the strategy may be able to realize short-term gains even without being a sound long-term strategy.  But my feeling is that by the time any patent information is public, it's too late.    By the time the company puts out a press release (often before issuance) and you happen to read said release, it's fairly certain that the patent value has been priced into the value of the company's shares, making it too late to buy stock on hopes of gains in view of the patent.  The same is probably true as soon as the patent is published in the Federal Register or even earlier.  The likeliest scenario, in my opinion, is the stock value may rise slightly on press-release puffery, you invest, and once the market impact of the patent is more fully understood to be disappointing, the value goes down.

I'll also note that in the cases of most publicly traded technology companies, expected profitability and therefore share price does not ride on the issuance or denial/invalidity of any one future patent.  If it did, investing would be pretty risky anyway.

On the whole it doesn't seem like a sound strategy, even if it does, in theory, involve potentially more objective criteria than most stock pick strategies.

 74 
 on: 12-07-17 at 03:17 pm 
Started by EDCGadgetGeek - Last post by EDCGadgetGeek
I was just curious if anyone has tried buying stocks based on a company's newly published patent application or a newly issued patent.  Has anyone tried this, had success with this approach to picking stocks?  If it was your own client, it would probably be a type of insider training, but as a general strategy.  Just curious...

 75 
 on: 12-07-17 at 02:39 pm 
Started by rzhysm - Last post by rzhysm
Concerning assignments between entities ultimately owned by the same parent company, can an employee of a subsidiary assign he/her rights directly to the parent company?  Or, assuming the employee has an obligation to assign to the subsidiary (via an employment agreement or merely as function of role of employee), MUST there first be an assignment from employee to subsidiary and then a subsequent assignment from subsidiary to parent?

Does the subsidiary being a US entity and the parent being a foreign entity change the calculus?

Thanks in advance -

 76 
 on: 12-07-17 at 01:57 pm 
Started by mersenne - Last post by Robert K S
But if during the interview, the examiner comes to agreement with applicant's argument, would not an after-final response with an AFCP2 request that technically fulfilled the AFCP requirements, even if it did not substantially change the claim scope, still be appreciated by the examiner?

 77 
 on: 12-07-17 at 01:26 pm 
Started by bbd001 - Last post by ThomasPaine
Don't say any "embodiment" "enhances" any other "embodiment."

In fact, don't use the term "embodiment" at all. 

Write this:

Referring to Fig. 1, a device comprises XYZ.  A method of operating the device comprises...

Referring to Fig. 2, a device comprises... (whatever your second "embodiment" includes)

Referring to Fig. 3, a device comprises....

There's no requirement that you label or describe every possible variation of your "invention" as an "embodiment."  So why do it?

 78 
 on: 12-07-17 at 01:20 pm 
Started by examiner_bio - Last post by ThomasPaine
"I'm certain this is not a CFR requirement"

You are correct.

"That said, almost every practitioner I know does include a summary of the claims statement. Personally, I think it's bad practice."

I disagree.  But you make a compelling argument.

"The way I read that, only if the Examiner requires election (of species) is the Applicant required to elect a species."

Correct.

 79 
 on: 12-07-17 at 11:54 am 
Started by examiner_bio - Last post by still_learnin
1.  After the listing of the claims, and in the remarks section, I thought it was a requirement to state the status of all the claims in any office action response to the USPTO (which a RR is categorized under).  In other words, you need to say something like, "Claims 1-10 are pending; claims 2 and 3 have been amended; claims 8-10 stand withdrawn.  Claims 11-20 have been canceled" (note, this is fictitious and an example only).  I thought there was a section in the MPEP that said as much. 

I'm certain this is not a CFR requirement, and fairly certain it's not even discussed in the MPEP. All that's required is that status identifiers be used in a listing of the claims.

That said, almost every practitioner I know does include a summary of the claims statement. Personally, I think it's bad practice. At best, it's redundant: the listing of the claims is what controls -- and for all I know, is all the Examiner cares about. Two, it leads to confusion if there's a mismatch between the claim listing and the summary sentence. Three, it's stuff like this that leads to bulky responses, mostly fluff and often little substance. Waste of time for all readers.

While I'm on a rant, what annoys me even more is the "Commissioner of Patents, Mail Stop AF" block on the header page. Mail stops went the way of the dodo about ten years ago. And I don't think the Commissioner reads my "mail." :-)

2.  Sometimes examiners combine a RR with an election of species, muddling the waters.  I spoke to an attorney the other day who said that even if an examiner does not require an election of species for a restriction group, you still need to make some sort of statement saying as much.  What's your take?  Is it worth the time to put another sentence or two in a RR response to something the Examiner has not even raised?

CFR says:
Quote
37 CFR 1.146  Election of species.
In the first action on an application containing a generic claim to a generic invention (genus) and claims to more than one patentably distinct species embraced thereby, the examiner may require the applicant in the reply to that action to elect a species of his or her invention to which his or her claim will be restricted if no claim to the genus is found to be allowable.
The way I read that, only if the Examiner requires election (of species) is the Applicant required to elect a species.

To me, that means that how you handle the situation is a matter of philosophy or style. Some practitioners feel strongly that zealous representation means Applicants should do as much as required by law, and not a bit more. Other practitioners feel that doing a bit more is important when not doing so slows down prosecution or annoys the Examiner. Other practitioners feel that it's important to give the Examiner as much help as possible to get the case allowed as soon as possible.

Your choice should be informed, of course, by any input your client has given you on these sorts of matters.

 80 
 on: 12-07-17 at 11:22 am 
Started by bisli - Last post by Tobmapsatonmi
The bulk of the patent attorneys I've worked with are PhDs (I am not). 

They universally use "John Doe, PhD, JD" or sometimes with "JD, PhD".  And unless memory fails, I don't think any of them used "Dr. John Doe" or "Dr. John Doe, JD".

I do know one patent attorney who is an MD/PhD/JD.  She uses "Dr. Jane Doe, MD, PhD, JD" (and some other professional acronym for her board certification that I can't remember).


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