Tag: USPTO

The 66 Claims - A Patent Infringement Case

66 Claims: A Tale of Patent Infringement

The 66 Claims

This is a tale of what happened to the 66 claims.

A, B and C were officers and engineers for ABC company located in Cincinnati. In 2022, A, B and C assigned their interests in their joint invention to ABC company. In 2022, ABC company filed the Patent Application in the United States Patent and Trademark Office (USPTO). The original ABC Patent Application had 66 claims.

What Happened With the 66 Claims

In 2024, A and B were playing a best ball golf tournament in Louisville. The other twosome happened to be X and Z, who were officers of XYZ company located in Indianapolis. Before starting the back nine, all players took a break at the clubhouse. By the thirteenth hole, A and B were talking about their joint invention.  X and Z listened closely.

In early 2025, ABC company became aware that XYZ company was selling an XYZ invention that appeared to be identical to the ABC company’s invention. ABC had yet to receive regulatory approval for use of its invention. Somehow, XYZ received regulatory approval and made it to market before ABC.

The 66 Claims of the ABC Company’s Application

In the summer of 2025, ABC received the First Office Action from the Examiner regarding the 66 claims. In the Office Action, the Examiner rejected the first 60 claims of the 66 claims but indicated that the last six claims were allowable if some of the language of those six claims was tweaked. Since A, B and C were engineers and not patent attorneys, A, B and C opted to seek legal assistance.

What Did the Law Firm Do With ABC’s Patent Application?

  • First – the firm determined what product XYZ sold.
  • Second – the firm tweaked the last six claims to make them allowable while at the same time ensuring that those six claims read on XYZ product.
  • Third – the firm filed a Response to the Office Action cancelling the first 60 claims and requesting the Examiner allow the last six claims to mature into a Patent.
  • Fourth – the firm prepared another five Patent Applications claiming priority/benefit to the first ABC Application. Each of those five Patent Applications contained 20 claims.  Three of the Applications were Continuations, and one of those included less structures to achieve the same result. Two of the Applications were Continuation-In-Part Applications that included additional structures that ABC had invented since the filing of the first ABC Company Application.

35 U.S.C. § 120 allows an Applicant to claim the benefit of an earlier Patent Application if the earlier Patent Application is still pending.

What Was the Outcome of the 66 Claims?

  • Before the first ABC Company Application was abandoned, the original first 60 claims morphed into five additional Patent Applications having a total of 100 claims.
  • Original claims 61-66 were the basis for the first Patent. ABC sued XYZ for infringement.
  • Before going to trial and because of the distinct possibility of intentional infringement and treble damages, XYZ agreed to allow ABC to select the infringement damages calculation, e.g., ABC’s losses, such as lost profits or a reasonable royalty, or an accounting of the infringer’s profits.
  • XYZ ceases to use, offer for sale, sale, or make ABC’s patented invention.

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Micro business requirements by USPTO

Micro Entity and the US Patent Office

What is the Benefit of Being Certified as a Micro Entity?

The United States Patent Office’s (USPTO) fees’ structures are segregated into micro entity, small entity and large entity categories. Government fees for small entities are generally less than other entities’ fees.

USPTO fees periodically change, and it is advisable to check the USPTO website for current rates.

How does an Entity Qualify for Micro Entity Status?

37 Code of Federal Regulations Section 1.29 defines what entities qualify for micro entity status. In part, 37 C.F.R. 1.29 reads as follows:

(a) To establish micro entity status under this paragraph, the applicant must certify that:

(1) The applicant qualifies as a small entity as defined in § 1.27 without relying on a government use license exception under § 1.27(a)(4);

(2) Neither the applicant nor the inventor nor a joint inventor has been named as the inventor or a joint inventor on more than four previously filed patent applications, other than applications filed in another country, provisional applications under 35 U.S.C. 111(b), or international applications for which the basic national fee under 35 U.S.C. 41(a) was not paid;

(3) Neither the applicant nor the inventor nor a joint inventor, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986 (26 U.S.C. 61(a)), exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census; and

(4) Neither the applicant nor the inventor nor a joint inventor has assigned, granted, or conveyed, nor is under an obligation by contract or law to assign, grant, or convey, a license or other ownership interest in the application concerned to an entity that, in the calendar year preceding the calendar year in which the applicable fee is being paid, had a gross income, as defined in section 61(a) of the Internal Revenue Code of 1986, exceeding three times the median household income for that preceding calendar year, as most recently reported by the Bureau of the Census.

(b) An applicant, inventor, or joint inventor is not considered to be named on a previously filed application for purposes of paragraph (a)(2) of this section if the applicant, inventor, or joint inventor has assigned, or is under an obligation by contract or law to assign, all ownership rights in the application as the result of the applicant’s, inventor’s, or joint inventor’s previous employment.

(c) If an applicant’s, inventor’s, joint inventor’s, or entity’s gross income in the preceding calendar year is not in United States dollars, the average currency exchange rate, as reported by the Internal Revenue Service, during that calendar year shall be used to determine whether the applicant’s, inventor’s, joint inventor’s, or entity’s gross income exceeds the threshold specified in paragraph (a)(3) or (4) of this section.

(d) To establish micro entity status under this paragraph, the applicant must certify that:

(1) The applicant qualifies as a small entity as defined in § 1.27 without relying on a government use license exception under § 1.27(a)(4);

(2)

(i) The applicant’s employer, from which the applicant obtains the majority of the applicant’s income, is an institution of higher education as defined in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)); or

(ii) The applicant has assigned, granted, conveyed, or is under an obligation by contract or law, to assign, grant, or convey, a license or other ownership interest in the particular application to such an institution of higher education.

(e) Micro entity status is established in an application by filing a micro entity certification in writing complying with the requirements of either paragraph (a) or (d) of this section and signed either in compliance with § 1.33(b), in an international application filed in a Receiving Office other than the United States Receiving Office by a person authorized to represent the applicant under § 1.455, or in an international design application by a person authorized to represent the applicant under § 1.1041 before the International Bureau where the micro entity certification is filed with the International Bureau. Status as a micro entity must be specifically established in each related, continuing and reissue application in which status is appropriate and desired. Status as a micro entity in one application or patent does not affect the status of any other application or patent, regardless of the relationship of the applications or patents. The refiling of an application under § 1.53 as a continuation, divisional, or continuation-in-part application (including a continued prosecution application under § 1.53(d)), or the filing of a reissue application, requires a new certification of entitlement to micro entity status for the continuing or reissue application

What is the Maximum Income that Will Qualify Special USPTO Consideration?

As of September 2024 and according to the USPTO, the maximum qualifying gross income for paying the reduced micro entity rate is $241,830. This maximum income limit usually changes in September of each calendar year.

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USPTO Inventor's Oath or Declaration Requirement

Notice Requiring Inventor’s Oath or Declaration

The USPTO can issue a Notice Requiring Inventor’s Oath or Declaration that requires action by the Applicant. Failure of the Applicant to respond will cause the Patent Application to become abandoned.

Basic Requirements for a US Patent Application

An Inventor’s oath or declaration is one of the requirements for filing a US Patent Application. Basic minimum requirements for filing a US Patent Application include:

  • Specification
  • Drawings
  • At least one claim
  • Application Data Sheet
  • Inventor’s Oath or Declaration
  • USPTO fees – NOTE: It is less expensive to pay the required USPTO fees on the day the Application is filed

An Example of Oath/Declaration Problems

The given name of the inventor was William.  However, William generally used the name Will in his business.  Will also used the name Will on his federal income taxes.

With the filing of the Patent Application, in the Inventor’s Declaration, the name William was used.  However, in the Application Data Sheet, the name Will was utilized.

The Scenario that Unfolded

Will’s Patent Application was examined and approved by the Examiner. A Notice of Allowance was issued. Will was very happy he was going to be granted his first US Patent.

Several days after receiving the Notice of Allowance, Will received a USPTO Notice Requiring Inventor’s Oath or Declaration. Will contacted Business Patent Law about his dilemma.

The Solution to the USPTO Notice

  • William can file an amended Application Data Sheet indicating his name is William or
  • Will can file a substitute Inventor’s Declaration changing the name to William

Of course, the USPTO charges a small fee for making either one of these corrections.

The Takeaway

When comes to an inventor’s given name and surname, the USPTO demands precision.

Based on information provided to BPL by our IRS and Social Security affiliates, it appears it does not matter if William or Will is utilized for those agencies as long as the social security number is identical.

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Codes used by the US Patent office

Letter Codes for US Patents

Letter Codes for US Patents & Published Patent Applications

Commencing on January 1, 2002, letter Codes were added to United States Patents.

In 2002, the United States Patent and Trademark Office (USPTO) began publishing Patent Applications that included letter Codes.

Some of the Letter Codes Used by the USPTO

Letter Code                    Document Type

A                                      Utility Patent Grant issued prior to January 2, 2001

A1                                    Utility Patent Application published on or after January 2, 2001

A2                                   Second or subsequent publication of a Utility Patent Application

A9                                   Correction published Utility Patent Application

Bn                                   Reexamination Certificate issued prior to January 2, 2001

B1                                   Utility Patent Grant without pre-grant publication issued on or after January 2, 2001

B2                                   Utility Patent Grant with pre-grant publication issued on or after January 2, 2001

Cn                                   Reexamination Certificate issued on or after January 2, 2001

E                                      Reissue Patent

S                                      Design Patent

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Claim terms in Patent documents

Patent Application Words Meaning

The Broadest Reasonable Interpretation

The words (or terms) used to outline and describe the claims of your patent application may be interpreted differently by different people. How is this resolved by the USPTO?

During USPTO examination, the Patent Application words (meaning of the claims term) must be “given their broadest reasonable interpretation consistent with the specification,” as per Phillips v. AWH Corp., 415 F.3d 1303, 1316, 75 USPQ2d 1321, 1329 (Fed. Cir. 2005).

The broadest reasonable construction of the claims is determined “in light of the specification as it would be interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).

According to the USPTO Manual of Patent Examining Procedure, “The broadest reasonable interpretation does not mean the broadest possible interpretation. Rather, the meaning given to a claim term must be consistent with the ordinary and customary meaning of the term (unless the term has been given a special definition in the specification), and must be consistent with the use of the claim term in the specification and drawings. Further, the broadest reasonable interpretation of the claims must be consistent with the interpretation that those skilled in the art would reach.”

The Patent Application in Plain Words

Under a broadest reasonable interpretation (BRI), words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification. The plain meaning of a term means the ordinary and customary meaning given to the term by those of ordinary skill in the art at the relevant time.

“The Greatest clarity is obtained when the specification serves as a glossary for the claim terms”

The ordinary and customary meaning of a term may be evidenced by a variety of sources, including the words of the claims themselves, the specification, drawings, and prior art. However, the best source for determining the meaning of a claim term is the specification – the greatest clarity is obtained when the specification serves as a glossary for the claim terms. The words of the claim must be given their plain meaning unless the plain meaning is inconsistent with the specification. In re Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989).

“[T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.” Phillips v. AWH Corp.

The USPTO Manual of Patent Examining Procedure, in part, reads, “The ordinary and customary meaning of a term may be evidenced by a variety of sources, including the words of the claims themselves, the specification, drawings, and prior art. However, the best source for determining the meaning of a claim term is the specification – the greatest clarity is obtained when the specification serves as a glossary for the claim terms.”

Patent Application Words Meaning – Explicit Definition

Where an explicit definition is provided by the applicant for a term, that definition will control interpretation of the term as it is used in the claim, as per Toro Co. v. White Consolidated Industries Inc., 199 F.3d 1295, 1301, 53 USPQ2d 1065, 1069 (Fed. Cir. 1999)

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Trademark Examiner's Amendment

Should You Accept a Trademark Examiner’s Amendment?

Trademark Examiner’s Amendment of Application

A Trademark Examiner’s amendment is sometimes suggested and/or required during examination a US Trademark Application*.

Some Examiner’s amendments will alter the scope of rights associated with a future Trademark Registration. Other Trademark Examiner’s amendments will not modify the scope of rights associated with a future Trademark Registration.

Whether or not to accept the Trademark Examiner’s amendment is a business decision.

Potential Consequences of an Amendment

Applicant’s acceptance of the Trademark Examiner’s amendment generally results in Trademark Registration for the Applicant.

Failure to agree to the Examiner’s amendment can result in:

  • Legal arguments that the Examiner’s suggested amendment is inappropriate
  • A refusal to register the Trademark and the loss of long-term federal rights associated with a US Registration
  • An appeal to the Trademark Trial and Appeal Board where the Applicant can lose the appeal
  • Filing a new Application to register the Trademark, where the new Application is modified from the previously filed Trademark Application

About Section 707 – TMEP – Examiner’s Amendment*

Examples of Section 707 relevant procedures for Trademark Examiners include:

  • An Examiner’s amendment should be used whenever appropriate to expedite prosecution of an Application
  • An Examiner’s amendment is a communication to the Applicant in which the examining attorney states that the Application has been amended in a specified way
  • Except in the situations listed in TMEP §707.02, the amendment must be specifically authorized by the individual Applicant, someone with legal authority to bind a juristic Applicant 700-20 October 2010 (e.g., an officer of a corporation or general partner of a partnership), or the applicant’s qualified practitioner
  • Except in the situations set forth in TMEP §707.02 in which an examiner’s amendment is permitted without prior authorization by the Applicant, an examining attorney may amend an application by examiner’s amendment only after securing approval of the amendment from the individual Applicant, someone with legal authority to bind a juristic Applicant, or the Applicant’s qualified practitioner by telephone, e-mail, or in person during an interview. Cf. 37 C.F.R. §§2.62(b) and 2.74(b)
  • If the Applicant has a qualified practitioner, the examining attorney must speak directly with the practitioner
  • If the Applicant is pro se, the examining attorney must speak directly with the individual Applicant or with someone with legal authority to bind a juristic Applicant (e.g., a corporate officer or general partner of a partnership)
  • For joint Applicants who are not represented by a qualified practitioner, each joint Applicant must authorize the examiner’s amendment

*Along with Trademarks, the USPTO Trademark Manual of Examining Procedure (TME) also applies to Service Mark Applications.

If your company needs assistance with its Trademarks/Service Marks, please contact Business Patent Law.

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Christmas Patent Products

Patents for Christmas Inventions

Do Investors Get Patents for Christmas Inventions?

Yes, many inventors receive patents for Christmas inventions!

In 2023, US Christmas sales are anticipated to exceed 950 billion dollars. Christmas inventions are a portion of this market. Some inventors hope to seize a portion of those sales.

Examples of Christmas Themed Inventions

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Deadlines and timing of trademarks and service marks

Duration of a US Trademark Registration

The duration of a US Trademark or Service Mark is perpetual; provided the following conditions are met:

  • The United States Patent and Trademark Office (USPTO) granted a federal Registration of the Trademark or Service Mark
  • After registration, the Trademark/Service Mark is not canceled by the USPTO or court order
  • The required government fees are paid in timely manner
  • The required declarations of use are timely filed in USPTO
  • The required evidence of use in commerce regulated by Congress is timely filed in the USPTO

Timing Required to Maintain a Trademark

There is a specific timing of Required Fees, Declarations and Evidence needed to Maintain a US Trademark/Service Mark Registration in full force and effect:

15 U.S.C. §1058. Duration, affidavits and fees

(a) Time periods for required affidavits

Each registration shall remain in force for 10 years, except that the registration of any mark shall be canceled by the Director unless the owner of the registration files in the United States Patent and Trademark Office affidavits that meet the requirements of subsection (b), within the following time periods:

(1) Within the 1-year period immediately preceding the expiration of 6 years following the date of registration under this chapter or the date of the publication under section 1062(c) of this title.

(2) Within the 1-year period immediately preceding the expiration of 10 years following the date of registration, and each successive 10-year period following the date of registration.

(3) The owner may file the affidavit required under this section within the 6-month grace period immediately following the expiration of the periods established in paragraphs (1) and (2), together with the fee described in subsection (b) and the additional grace period surcharge prescribed by the Director.

Illustrations of Timely Filings

To preserve the duration of a US Trademark Registration you must do the following:

  • Between fifth and sixth year subsequent to registration, file required fees, declarations and evidence of use in USPTO
  • Between ninth and tenth year subsequent to registration, file required fees, declarations and evidence of use in USPTO
  • Between nineteenth and twentieth year subsequent to registration, file required fees, declarations and evidence of use in USPTO
  • ***Subsequent to the ninth year USPTO filings, every tenth year interval, i.e, 19, 29th, 39th, etc. from the registration date

If your company needs assistance with its Trademarks/Service Marks, please contact Business Patent Law, PLLC.

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Patent drawings for patent application and replacement drawings after notice of allowance

Replacement Drawings After a Notice of Allowance?

Can the USPTO Require Replacement Drawings?

YES.

Some Applicants for US Patents represent themselves and, on occasion, the pro se Applicant successfully argues to the Examiner that the Application’s claims are patentable.

Other Applicants are represented by patent professionals and (due to various national and international deadlines) a complete but not pristine Patent Application that obtains a filing date is filed in the USPTO.

For some Patent Applications, Examiners issue a Notice of Allowance where the Issue Fee must be paid by a specified date. After the Examiner’s issues the Notice of Allowance, the Application is transferred to the Publications Branch of the USPTO. It is here that a replacement drawing may be required.

Code of Federal Regulations for Utility Patent Application Drawings

37 Code Federal Regulations 1.84 (a) (1), in part, reads, “37 C.F.R. 1.84 Standards for drawings.  (1) Black ink.  Black and white drawings are normally required. India ink, or its equivalent that secures solid black lines, must be used for drawings”.

After receiving the allowed Patent Application from the Examiner, the Publications Branch can require correction of a part of the Application, such as the Drawings. For instance, when Applicants have not filed the required black and white line drawings in the as-filed Application, but rather used photographs or non-line computer generated images to obtain a filing date.

Most of the time, the drawings are replaced before the Notice of Allowance is granted. However, occasionally, the black and white line drawings are required after the Notice of Allowance and before the grant of the Patent.

Patent drawings for replacement drawings after notice of allowance

Replacement Drawings for Utility Patent Applications

A part of the Notice for Corrected Application Papers looks something like the example below.

Notice to File Corrected Application Papers for Patent

In the Notice to File Correction Application Papers, the Publication Branch of the USPTO requires replacement black and white line drawings before the Patent Application will be granted. One or more as-filed figures need to be replaced by black and white line drawings.

To properly respond to the Notice to File Correction Application Papers – Drawings, the Applicant must file the required black and white line drawings within the allotted time identified on the Notice to File Correction Application Papers.

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Abandoned Patent Application

Is An Abandoned Patent Application Public?

How Does a Patent Application Become Abandoned?

An abandoned Patent Application occurs when the Applicant does not meet United States Patent Office’s (USPTO) requirements in responding to the USPTO.

Are They Public Record?

Does an abandoned US Patent become public record when it is abandoned?  It depends!  For national security reasons, some Patents are kept top secret.

With the exception of top secret Patents, when a US Patent is granted the contents of the granted Patent’s USPTO file wrapper become public record.

As a general rule:

  1. When a US Patent Application is abandoned, the USPTO file wrapper for the US Patent Application does not become public record.
  2. A US Provisional Patent Application does not become public record.

Existing Patent Applications Available to the Public Include:

  • Published Patent Applications
  • Reissue Patent Applications
  • Documents that were sealed as a condition of filing the Patent Application
  • Arbitration records associated with a Patent Trademark Trial and Appeal Board proceeding
  • All documents and evidence entered in a US Patent’s Reexamination Proceedings’ records

Abandoned Patent Applications Available to the Public

  • Unpublished abandoned applications (including provisional applications) that are identified or relied upon
  • Unpublished pending applications (including provisional applications) whose benefit is claimed
  • Unpublished pending applications (including provisional applications) that are incorporated by reference or otherwise identified

USPTO Legal Authority Regarding Public Records of Patent Applications

37 Code of Federal Regulations Section 1.11

37 Code of Federal Regulations Section 1.14

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