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Intellectual property attorneys are increasingly concerned about attacks on the nation’s patent system. Decisions during the course of this year “make it clear that there basically is a bias against patents right now,” said Manny Pokotilow, managing partner at of Philadelphia’s Caesar, Rivise, Bernstein, Cohen & Pokotilow. Attorneys say the U.S. Court of Appeals for the Federal Circuit is beginning to enforce rulings made by the U.S. Supreme Court earlier in the year, and one such example was its Sept. 20 ruling in In re Stephen W. Comiskey, No. 06-1286. Lawyer Stephen Comiskey was trying to patent a form of mandatory arbitration that involved legal documents such as wills or contracts, according to the opinion by Judge Timothy B. Dyk. The documents are enrolled or registered under the system and language is inserted to require arbitration. The Federal Circuit affirmed most of the U.S. Patent and Trademark Office’s denials of Comiskey’s claims for a patent for his process, ruling that a mental process needs to be connected to some form of technology for it to be patentable. “However, mental processes � or processes of human thinking � standing alone are not patentable even if they have practical application,” Dyk said. When the Federal Circuit was created in 1983 and charged with handling all patent appeals, it was seen as “pro-patentee” and worked to uphold patents, said Randy Huis, a partner at intellectual property boutique Volpe and Koenig of Philadelphia. That feeling has been slowly eroding during the past seven years, he said, but has really started to show this year. Recent Supreme Court rulings have made protecting patents more difficult. In KSR International Co. v. Teleflex, 127 S. Ct. 1727, the justices made it harder to obtain patents under the “obviousness” rule in patent law. They said that combining two existing parts was not novel enough to warrant a new patent when the combination would have most likely occurred in an ordinary course of doing business. In eBay Inc. v. MercExchange LLC, 126 S. Ct. 1837, the justices determined that injunctive relief is not automatic for a company that successfully fought patent infringers. The Federal Circuit in an August ruling, In re Seagate Technology LLC, No. M830, raised the standard for proving willful infringement from more of a good-faith effort to one of objective recklessness. Steven J. Rocci, a partner at Philadelphia’s Woodcock Washburn, said that, in addition to Supreme Court and Federal Circuit rulings, Congress’ support of regulation changes in the patent office is affecting the way patents are received and maintained. On Nov. 1, new regulations promulgated by the patent office will go into effect. These rules will place a limit on the number of continuations that patent applicants may file. A continuation is a method by which patent applications can be amended to include additional facts or changes to the original product being considered for a patent. In the mid-1990s, the law was changed to stop the practice of endless continuations by changing the length of a patent term from 17 years of issue to 20 years of filing, Rocci said. Huis said the most recent changes in continuation rules will have a significant effect on a whole group of technology companies that rely on the continuations to protect themselves from other applicants taking a narrow path around their products. Attorneys say that “patent trolls” � a term for companies that buy patents with the hopes of finding infringers they can sue � are a part of the reason Congress is looking to pass the Patent Reform Act of 2007 that was presented by both sides in April. Some of the proposed reforms would result in limitations on damages and increased regulatory power for the patent office.

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