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Trademark Intellectual PropertyTrademark Intellectual PropertyTrademark, Intellectual Property Trademark, Intellectual Property Litigation, and Patent Updates for Litigation, and Patent Updates for
th Nth N U S C lU S C lthe Nonthe Non--U.S. CounselorU.S. Counselor
Brad R. Maurer and Louis T. PerryAbigail M. ButlerKevin ErdmanKevin Erdman
Friday, June 5, 2009Friday, June 5, 2009
www.bakerdaniels.com
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United States Trademark United States Trademark PracticePractice
Considerations for the International ClientInternational Client
Brad R. Maurer and Louis T. Perry
www.bakerdaniels.com
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U.S. Trademark ProsecutionU.S. Trademark Prosecution
Hi t i U S R l Historic U.S. Rule:Trademark owners must use a mark in
commerce before they can obtain a federal registrationRegistration recognizes rights that a
trademark owner has already created ythrough actual use of a mark in “commerce”
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U.S. Trademark ProsecutionU.S. Trademark Prosecution Exceptions:Section 1(b)
A li ti (“I t t t
But …importance of actual “use” lingers
Applications (“Intent to Use”)
Section 44(e)
use must be shown to maintain the registrationSection 44(e)
Applications (based on foreign application or registration)
guse must exist to
enforce the i t tiregistration)
Section§ 66(a) (Madrid Protocol extensions)
registration
)
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U.S. Trademark Prosecution: U.S. Trademark Prosecution: U d M i tU d M i tUse and MaintenanceUse and Maintenance
International registrants should commence use International registrants should commence use of a mark in U.S. as soon as possible
Statutory presumption of abandonment after Statutory presumption of abandonment after three years of non-use (risk of cancellation?)
International registrants like a U S registrantInternational registrants, like a U.S. registrant, must file affidavits of use to maintain a registration
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U.S. Trademark Prosecution: U.S. Trademark Prosecution: Use and Maintenance (cont’d)Use and Maintenance (cont’d)Use and Maintenance (cont d)Use and Maintenance (cont d)
Affidavits of Use: When? Between the fifth
Consequences: Failure to file affidavit
and sixth year following the registration date and at the end of each successive
of use results in cancellation of a registration in its
ten-year period Why? U.S. protection
focused on actual use,
entirety Failing to file an
accurate affidavit of use therefore requirement to confirm ongoing use of the mark in U.S. commerce for
d d/ i
exposes the registration to potential cancellation for “fraud.” See M di l Ltd V Nevery good and/or service
listedMedinol Ltd. V. Neuro Vasx Inc., 67 USPQ2d 1205 (TTAB 2003) 6
U.S. Trademark Prosecution: U.S. Trademark Prosecution: Pitfalls for the Madrid RegistrantPitfalls for the Madrid RegistrantPitfalls for the Madrid RegistrantPitfalls for the Madrid Registrant
Affidavit of Use and Renewal:
Consequences: Failure to file affidavit Renewal:
For a U.S. registration, renewal/use filed together
Under Madrid renewal
of use = cancellationLate filing grace period
also different for a Under Madrid, renewal takes place at IB
…BUT TO MAINTAIN THE U S EXTENSION AN
Madrid Extension: nograce period for 5/6 year, and only 3 months
U.S. EXTENSION, AN AFFIDAVIT OF USE MUST ALSO BE FILED WITH USPTO TEN YEARS
for 10 yearFiling window
difference at 10 yearUSPTO TEN YEARS AFTER REGISTRATION (6 months vs. 12
months) 7
U.S. Trademark Prosecution: U.S. Trademark Prosecution: Pitfalls for the Madrid RegistrantPitfalls for the Madrid RegistrantPitfalls for the Madrid RegistrantPitfalls for the Madrid Registrant
Other Differences from Section 1 and 44
Response to Office Action due within 6from Section 1 and 44
based applications:Not eligible for
Action due within 6 months regardless of when IB forwards (first
Not eligible for Supplemental Register
Vague description of
OA sent to IB)No possibility to
amend mark (Sectiongoods/services and International Classification by IB
amend mark (Section 1 and 44 possibility for amendment if not “ t i l”)Classification by IB “material”)
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U S T d k P iU S T d k P iU.S. Trademark Prosecution: U.S. Trademark Prosecution: Suggestions for International OwnersSuggestions for International Owners
Current registrations Audit U.S registration portfolio considering use and fraud. If an important mark appears vulnerable, consider filing an additional application with a goods and services description that
id th i d b t d t hi hli ht f dprovides the required coverage but does not highlight fraud vulnerability in prior registration
Looking forward Registration under § 44(e) and § 66(a) does not relieve the
trademark owner of its responsibility to demonstrate actual use in U.S. commerce with respect to the listed goods and
i ENFORCEMENT DEMANDS USE ANYWAYservices—ENFORCEMENT DEMANDS USE ANYWAY Because of classification restrictions, foreign trademark owners
should consider filing applications for their most significant k di tl i th U it d St tmarks directly in the United States
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U S T d k P iU S T d k P iU.S. Trademark Prosecution: U.S. Trademark Prosecution: Look Before LeapingLook Before Leaping
Pre-filing Search and Opinion A comprehensive search conducted by a reputable vendor is
one of the tools available to assess the risk of whether similarone of the tools available to assess the risk of whether similar trademarks are registered or used in connection with similar goods or services by a third party (no guarantee, however)
Comprehensive searches can cost approximately $500 for word Comprehensive searches can cost approximately $500 for word marks and upwards of $1,000 for design marks
The cost of an analysis of the search results and the preparation of an opinion letter varies with the extent and nature of theof an opinion letter varies with the extent and nature of the results, but generally ranges in between $1,500 and $3,000.
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U.S. Trademark Prosecution (cont’d)U.S. Trademark Prosecution (cont’d)
Trademark watch serviceNotice of potentially conflicting trademark
applications and registrations when published for registrationfor registrationMonitor status of applications of interest
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Enforcing Rights: Enforcing Rights: Protecting a MarkProtecting a Markgg
Administrative: Opposition and Cancellation Proceedings Filed with the TTABDamages are unavailable – relief is limited to
cancellation or refusal to register the markOnly concerned with registration of a markOnly concerned with registration of a mark
Judicial: U.S. Courts Injunctive relief, statutory damages and/or attorneys’ j y g y
fees, other damages Typically filed with federal district courtsC i i l lti f t d k t f itiCriminal penalties for trademark counterfeiting
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Enforcing Rights: Enforcing Rights: Protecting a MarkProtecting a Markgg
Cease and Desist LetterContents and possible declaratory judgmentBe willing to carry out threats or lose
credibility Likelihood of ConfusionMulti-factor testWill you need a survey, and at what cost?Intent
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Enforcing Rights: Enforcing Rights: Protecting a MarkProtecting a MarkProtecting a MarkProtecting a Mark
Anti-Dilution Statutes for Famous TrademarksTrademarksIdentical or similar mark
“ f f“Blur” the capacity of the famous mark to identify and distinguish its goods“T i h” th t ti“Tarnish” the reputationNo need to show likelihood of confusion
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Major stages of U.S. Major stages of U.S. j gj gPatent LitigationPatent Litigation
Jurisdictional Requirements and Foreign activities that may infringe U.S. patents
Strategic considerations for co-pending patent litigationpatent litigation
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In a Nutshell… Time Consuming
– D. Ct.: 3-5 yearsy– Appeals and Returns: 7-10 years
ExpensiveExpensive– Average cost of $2.6M if
$1M or more is at risk$1M or more is at risk
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1. Pleadings
2. Discovery period
3 Claim construction and Markman3. Claim construction and Markman proceedings
4. Summary Judgment and other pretrial motions
5. Final pretrial proceedings
6. Trial19
Pleadings Complaint
Answer to ComplaintAnswer to Complaint
Motions to Dismiss– Lack of personal
jurisdiction
– Lack of subject matter jurisdiction
– Adequacy of pleadings20
General Jurisdiction Most common way foreign defendants are
pulled into U.S. Requires systematic & continuance
contacts Prior business contacts Activities of domestic subsidiary Activities of domestic subsidiary
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Discovery Interrogatories
Document Requests Document Requests
Depositions
Site Inspections
E t Di Expert Discovery
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International Discovery Requests 28 U.S.C. § 1782 governs production of
evidence in the U.S. for use in a foreign or int’l tribunal Twin Aims: to provide efficient means of p
assistance to participants in int’l litigation in U.S. Federal Courts and to encourage gsimilar means of assistance from foreign countries
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International Discovery Requests Allows Court to order deposition testimony
and production of documents May be available to private international
arbitration proceedingsp g Parties to an international
arbitration agreement mayarbitration agreement may wish to expressly preclude
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Claim Construction & Markman Proceedingsg
Markman v. Westview Instruments– Judges should perform claim construction
Vitronics Corp. v. Conceptronics– Introduced hierarchy of evidence to be used in
construing claims
Cybor v. FAS Technologies– Federal Circuit overrides District CourtFederal Circuit overrides District Court
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Timing Considerations Typically done before or in conjunction with
Motions for Summary Judgment
What is considered?– Words themselves
– Patent specification
– File history
– Extrinsic evidence– Extrinsic evidence
Involves exchange of briefs and a hearingand a hearing
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Summary Judgment A motion for judgment without a trial
P if di t d f t t Proper if undisputed facts warrant judgment as a matter of law
Infringement, validity, f bilitenforceability
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Final Pretrial Proceedings Witness & Exhibit lists
StipulationsStipulations
Motions in Limine
Trial Brief
No surprises!p29
Trial Jury Selection (voir dire)
Opening Arguments Opening Arguments
Witnesses (fact and expert)
Closing Arguments
D lib ti Deliberations
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Creativity Is RewardedCreativity Is Rewarded
A picture is worth a million words (and maybe a million dollars)
Select a theme and stick to it Select a theme and stick to it
Shotgun v. Sniper-rifle
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Tell A Story Unify and explain why people
did what they diddid what they did
Motivate the listener
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Judicial Research
Experience level, e.g., “Rocket Docket”p , g ,
Education Education
Utilize local bar
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Appeal Route Federal Circuit, circa 1982 (Fed. Cir.)
Jurisdiction based solely on subject matter– Jurisdiction based solely on subject matter rather than geographical location
– Provides uniformity
– Binding precedent throughout U.S., unlessBinding precedent throughout U.S., unless superseded by Supreme Court or by applicable changes in the lawapplicable changes in the law
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Foreign Activities That May Foreign Activities That May Raise U S Infringement IssuesRaise U S Infringement IssuesRaise U.S. Infringement IssuesRaise U.S. Infringement Issues
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Making, using, or selling a U.S. patented product or process in another country
does not, by itself, infringe a U.S. patent, but….
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Importing a patented product into the U.S. is an act of direct infringement
Includes products made by a U.S. patented process
Remedy is Damages and/or Injunction
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2 Ways To Stop Infringing ImportsInfringing Imports
Litigation in federal gdistrict court
Filing a proceeding Filing a proceeding with the International Trade CommissionTrade Commission
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ITC Proceedings v. District Court LitigationDistrict Court Litigation
Personal Jurisdiction– District Courts must have personal jurisdiction
over the alleged infringerover the alleged infringer
– ITC has national in rem jurisdiction over all products imported into the U.S.
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SUBJECT MATTER ITC DISTRICT COURTS
Judge Administrative Law Judge (deals with nothing but IP cases)
Judge may not be well-versed with the technology, or with patent cases in general. Deals with a wide variety ofgeneral. Deals with a wide variety of cases
Evidence Relaxed evidentiary rules (allows all evidence which seems useful and
FRE and Discovery is generally limited and governed by the FRCP (But, see
relevant, including hearsay). Also allows worldwide discovery beyond named parties
28 U.S.C §1782.)
Style of Proceeding Formal, evidentiary hearing which does not necessarily include Markman proceedings
Pretrial hearings and motions, Markman proceedings, and trial
Damages May issue C&D Order; or Exclusion Order which may apply to violators beyond those named by respondent
Injunctive Relief (limited by eBay) and Monetary Damages
Appeal Route Federal Circuit Federal Circuit
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Infringement In The U.S. WithSales Outside The U.S.Sales Outside The U.S.
May be awarded damages based on sales of a patented product made outside U S whenpatented product made outside U.S. when infringer exports a component of the product abroadabroad
Allows the U.S. patentee to avoid the expense and risk of filing multiple lawsuits in differentand risk of filing multiple lawsuits in different countries, while still recovering sales where no patent protection was obtained
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Statements made under oath in one proceeding may be
admissible elsewhere
– Molins PLC v. Textron, Inc.
Jurisdictional Differences in Claim ConstructionJurisdictional Differences in Claim Construction– Improver Corp. v. Remington Consumer Prods.
Effect of Foreign Judgments and SettlementsEffect of Foreign Judgments and Settlements
– Vas-Cath, Inc. v. Mahurkar
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FICPI Patent UpdateFICPI Patent UpdateFICPI Patent UpdateFICPI Patent Update
By: Kevin ErdmanPartner, BAKER & DANIELS LLP
www.bakerdaniels.com
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Substantive Patent UpdateSubstantive Patent Update Design Patent change in infringement
– Old standard “Point of Novelty”– New standard “Ordinary Observer”– Lay Jury prominent in decision– Favors Design Patent Owner
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Substantive Patent UpdateSubstantive Patent Update Evolving Nonobviousness standards KSR plays out in different technologies Chemical Mechanical Electrical Biotech Software Software
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Substantive Patent UpdateSubstantive Patent Update Written description for “means plus function”
elements and ordinary elements under the d t i f i l tdoctrine of equivalents Courts are holding patent terms to explicit definitions Single embodiments often constrain definition of claim Single embodiments often constrain definition of claim
terms Multiple embodiments and explicit disclosures of p p
equivalent structures important in specification
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Procedural Patent UpdateProcedural Patent Update Tafas update, what happened to the “new
rules”– Court banned limit on continuations– Court allowed other aspects of “new rules”p– Patent Office withdrew “new rules”– Further rules likely to shift burdens and costs u t e u es e y to s t bu de s a d costs
to patent applicants
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Procedural Patent UpdateProcedural Patent Update Information Disclosure Statements Include English language equivalents where possible McKesson decision held withholding information from
related prosecutions (office actions and responses) was inequitable conductwas inequitable conduct
Obligation to report on related proceedings including office actions and responses
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Procedural Patent UpdateProcedural Patent Update Electronic filing and timing issues All documents may be submitted electronically,
f d d d t ith i t thforward scanned documents with signatures rather than physical documents
Specifications best provided as Word documents, orSpecifications best provided as Word documents, or PDF with embedded text
Priority documents and prior art must be submitted li i thearlier in the process
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Impact of Impact of KSR v. TeleflexKSR v. Teleflex KSR v. Teleflex, 127 S.Ct. 1727 (2007)
– Issue:• For combination patents, determining when it is appropriate
to combine teachings from the prior art for purposes of an obviousness analysis.
– Holding:• Reversed Court of Appeals for Federal Circuit’s “rigid”
application of teaching-suggestion-motivation test (“TSM g gg (test”). The correct test is an “expansive and flexible” one.
– Renewed focus:• Person of Ordinary Skill in the Art who exercises “common• Person of Ordinary Skill in the Art who exercises common
sense.”52
The way it was preThe way it was pre--KSRKSR Explicit finding of a “teaching, suggestion,
or motivation” in the prior art that would compel a PHOSITA to combine prior art elements. This was known as the “TSM” test. POINT: to address obviousness and avoidPOINT: to address obviousness and avoid
hindsight bias.
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The way it is todayThe way it is today The Supreme Court in KSR rejected any
“rigid” application of the TSM test. TODAY:
– The test is “expansive and flexible.”The test is expansive and flexible.– “Common sense” is the key inquiry.– An explicit reference is no longer requiredAn explicit reference is no longer required.
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How does How does KSRKSR impact you?impact you? ANSWER: It Depends. Different fields of art seem to be impacted p
differently. Compare: mechanical electrical softwareCompare: mechanical, electrical, software,
chemical, and biotech.
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MECHANICAL PATENTSMECHANICAL PATENTS TREND:
– Patent claims are easier to invalidate under the obviousness doctrine.
– Recent BPAI and Federal Circuit decisions that use KSR have most often found claims were obvious because the results were
di t blpredictable.
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Representative Mechanical Representative Mechanical CaseCaseCaseCase
Ex Parte Bernard, Appeal 2008-2609, 2008 WL 4823235 (Bd P t A & I t N 5WL 4823235 (Bd. Pat. App. & Inter. Nov. 5, 2008):
I ti t i Th f t i t– Invention at issue: The fastening components at certain joints in a motor vehicle powertrain.Holding: Board affirmed the examiner's finding– Holding: Board affirmed the examiner s finding that the claims at issue were obvious.
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R t ti M h i lR t ti M h i lRepresentative Mechanical Representative Mechanical CaseCaseCaseCase
Ex Parte Bernard, 2008 WL 4823235 (BPAI Appeal 2008-2609) (Nov. 5, 2008):– In light of KSR, these claims were simply a combination of
old elements, "each performing the same function it had been known to perform."been known to perform.
– Quoting KSR, the Board held that when elements work together in "an unexpected and fruitful manner," the invention is not obviousinvention is not obvious.
– Using language from KSR, the combination did nothing more than "combine known elements for their known f ti t i ld di t bl h i l bl ffunctions to yield, predictably, a mechanical assembly of the components at critical joints of a vehicle powertrain." 58
C id ti f M h i lC id ti f M h i lConsiderations for Mechanical Considerations for Mechanical Claim DraftingClaim DraftingClaim DraftingClaim Drafting
Predictability of the operation and use of mechanical elements creates difficultiesmechanical elements creates difficulties.
Therefore, applicants should direct examiner to the unknown uses of the claimed mechanicalthe unknown uses of the claimed mechanical elements.
Additionally, point to unexpected performanceAdditionally, point to unexpected performance characteristics of those elements.
And do so in either the specification or by p yaffidavit during prosecution.
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ELECTRICAL PATENTSELECTRICAL PATENTS TREND:
– Similar to mechanical patents.p– Predictability of the art appears to be creating
a trend of invalidity. BUT…
– The examiner is still required to point to “someq particulated reasoning” to support a conclusion of obviousness. See Ex Parte Assaf Govari, Appeal 2008-6324 2009 WL 789956 (Bd Pat App & Interf2008-6324, 2009 WL 789956 (Bd. Pat. App. & Interf., March 23, 2009).
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Representative Electrical CaseRepresentative Electrical Case In re Translogic Tech., Inc., 504 F.3d
1249 (Fed. Cir. 2007) (reh'g and reh'g en banc denied, Jan. 24, 2008).– Invention at issue: multiplexer circuitry.y– Holding: Affirmed the BPAI’s obviousness
rejections.
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Representative Electrical CaseRepresentative Electrical Case In re Translogic Tech., Inc., 504 F.3d 1249
(Fed. Cir. 2007) (reh'g and reh'g en banc denied, Jan 24 2008)Jan. 24, 2008).– The court began by noting that "a person of ordinary
skill is also a person of ordinary creativity, not an p y y,automaton." In re Translogic at 1260 (citing KSR at 1742). No explicit motivation required; nor does the– No explicit motivation required; nor does the obviousness analysis require one to point to the prior art for “precise teachings directed to the specific subject matter of the challenged claim.” Id. At 1262 (citing KSR at 1741). 62
Representative Electrical CaseRepresentative Electrical Case In re Translogic Tech., Inc., 504 F.3d 1249
(Fed. Cir. 2007) (reh'g and reh'g en banc denied, Jan 24 2008)Jan. 24, 2008).– Now, “a court can take account of the inferences and
creative steps that a person of ordinary skill in the art p p ywould employ.” Id.
– Here, the problem solved by the patentee yielded nothing more than predictable results and could benothing more than predictable results, and could be achieved by a PHOSITA “pursuing known options within his or her technical grasp.” Id.
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Considerations for Electrical Considerations for Electrical Claim DraftingClaim DraftingClaim DraftingClaim Drafting
Similar considerations as for mechanical patent claims. Additionally, the specification may includeAdditionally, the specification may include
both the known uses of the disclosed circuits and then articulate differences incircuits and then articulate differences in how and why the circuit elements are used in the claimed combination.in the claimed combination.
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SOFTWARE PATENTSSOFTWARE PATENTS TREND:
– Once again, because software is considered ga relatively predictable art, a trend similar to that of mechanical and electrical patents is
iemerging.
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Representative Software CaseRepresentative Software Case Ex parte Conversagent, Inc., Appeal
2009-1291, 2009 WL 1346272 (Bd. Pat. App. & Interf., May 12, 2009).– Invention at Issue: “[S]ystems for interactively y y
responding to queries from remotely located users, e.g., by accessing local and/or remote d t " (Citi t t b t t )data sources." (Citing patent abstract.)
– Holding: Affirmed examiner’s obviousness j tirejections.
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Representative Software CaseRepresentative Software Case Ex parte Conversagent, Inc., Appeal 2009-1291, 2009
WL 1346272 (Bd. Pat. App. & Interf., May 12, 2009).The primary obviousness issue revolved around– The primary obviousness issue revolved around embodiments of the patent indicating that instant messages—which were processed by a message processor were used to respond to the remote user'sprocessor—were used to respond to the remote user s queries.
– The examiner combined several prior art references to reject the claims-at-issue on obviousness grounds.
– These combinations were held to be “clearly within the ability of one of ordinary skill in the art.” Id. at *4 (citing y y ( gKSR at 1740).
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Considerations for Software Considerations for Software Cl i D ftiCl i D ftiClaim DraftingClaim Drafting
Si il t l t i l Similar to electrical. Disclose how known software components
are used in different ways than previously known in the art.
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CHEMICAL PATENTSCHEMICAL PATENTS TREND:
– The chemical arts are unpredictablep– Few situations that involve finite, predictable
results– Recent BPAI and Federal Circuit decisions
most often find claims not obvious
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Representative Chemical CaseRepresentative Chemical Case Ex Parte Warren, 2008 WL 3874499 (BPAI
Appeal 2008-3108) (Aug. 19, 2008): – Invention at issue: Filter material comprising a
dye to be used in conjunction with night vision equipmentequipment
– Holding: The Board reversed the examiner's rejection of appellants' patent claims andrejection of appellants patent claims and found that the claims were not obvious
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Representative Chemical CaseRepresentative Chemical Case Ex Parte Warren, 2008 WL 3874499 (BPAI Appeal
2008-3108) (Aug. 19, 2008): Using KSR language: “[O]ne skilled in the art would not– Using KSR language: [O]ne skilled in the art would not have found the claimed invention obvious over" the prior art because "[s]ubstituting the prior art elements would have yielded results that were not predictable”have yielded results that were not predictable
– There were no finite number of identified, predictable solution to the problem solved by the Appellants
– Using KSR’s rejection of a rigid T-S-M test, there was no motivation to substitute the Co2+ compound from one prior art reference with the dye in another prior art referencey p
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Considerations for Chemical Considerations for Chemical Claim DraftingClaim Drafting
Specifically for “obvious to try” allegations, these should be rebutted by including both positive and negative examples to show how the results are actually different and
“ ”thus not “obvious to try.”
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BIOTECH PATENTSBIOTECH PATENTS TREND:
– Like the chemical arts, the biotech arts are unpredictable
– Few situations that involve finite, predictable results
– Claims recently litigated before the BPAI or the Federal Circuit are frequently found to be not obvious
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Representative Biotech CaseRepresentative Biotech Case Ex Parte Mertz, 2009 WL 524950 (BPAI Appeal 2008-
3751) (Feb. 27, 2009):
– Invention at issue: Method for determining cancer prognosis and categorizing cancer patients based onprognosis and categorizing cancer patients based on the expression of ERR<<alpha>>
– Holding: Board reversed examiner’s rejection of obviousness
74
Representative Biotech CaseRepresentative Biotech Case Ex Parte Mertz, 2009 WL 524950 (BPAI Appeal 2008-
3751) (Feb. 27, 2009): – KSR's : "‘[O]bvious to try’ may be sufficient when there is aKSR s : [O]bvious to try may be sufficient when there is a
design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions."
– Prior art was not related to ERR<<alpha>>Prior art was not related to ERR<<alpha>>– Was obvious to try comparing the amount of ERR<<alpha>> to
other cancer patients based on the teachings of the prior artBut only one of the prior art references discussed– But only one of the prior art references discussed ERR<<alpha>> and mechanisms underlying cancer are unpredictable
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Considerations for Biotech Considerations for Biotech Claim DraftingClaim Drafting
Similar to chemical claims, showing negative examples to rebut predictability is
fkey to successful prosecution.
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SUMMARYSUMMARY KSR reinforces the elementary principle that
broad claims are amenable to invalidity attacks.
For the predictable arts, this is particularly true.
However, in “unpredictable” arts like biotech and chemical, KSR’s impact may be less forceful. And this can be amplified with negative examples.
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