Here’s the latest.

USPTO Again Extends Certain Patent and Trademark Deadlines in Response to COVID-19

Reported by Majid AlBassam on

Due to COVID-19, the United States Patent and Trademark Office (“USPTO”) has extended the time period to file patent and trademark related documents and provided waivers for the payment of certain fees. This is the third time the USPTO has provided for extensions of deadlines and fee waivers as a result of the CARES Act. AlBassam indicates the office’s likely next steps:

The USPTO continues to monitor the situation surrounding the COVID-19 outbreak and its effects on businesses and inventors. Therefore, it is possible that the Office will extend additional relief through the summer months.

Federal Circuit: Patent Eligibility Turns on the Content – Not Length – of the Claims

Reported by Anthony J. Fuga on

The Federal Circuit affirmed the district court’ s decision in Elec. Commc’n Techs., LLC v., LLC, finding Electronic Communication Technologies’ (ECT) claim as abstract and ineligible. ECT filed suit against for an infringement of an automated notification system which enabled a party to input authentication information, store information, and provide information along with advance notices. The court found this authentication information involved longstanding commercial business practices, and found the claim highly general, merely invoking well-understood and routine components. Finally, the court supported their decision explaining that:

Patent eligibility, however, turns on the content of the claims, not merely on the number of words recited in the claims.

For more on this case, see our coverage.

Should USTPO Be Able to Make New Law Without Rulemaking

Reported by Nirav Desai, Jason Eisenberg, & Trent Merrell on

The Federal Circuit and Director Iancu of the USTPO hold differing opinions regarding whether the Precedential Opinion Panel’s (POP) may create law without rule-making. This divide is expressed in the POP’s decision in Proppant Express Investments, LLC v. Oren Technologies, LLC, and the Federal Circuit’s opinion in Facebook, Inc. v. Windy City Innovations, LLC. In Proppant, the POP determined the Board had the discretion to allow a joinder of new issues and discretion to add a new petitioner into an existing proceeding. Meanwhile, one year later in Windy City, the Federal Circuit found that joinder was not allowed. The authors reveal an underlying issue:

Perhaps a larger debate, however, is whether the USPTO may properly use its procedural and POP processes to make law, or whether are they limited to comment and rule making under the APA. There are strong opinions on all sides.

The Federal Circuit may issue further guidance on the issue and the Supreme Court may or may not decide to take up the issue.

For more on this case, see our coverage.