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Hi guys.
Today I’m going to talk about some fantastic movie related Inventions.
We all like the movies and most of us like action sci-fi movies with spacecrafts and laser guns and out of this world technology. Back on Earth some guys have boldly gone where no man has gone before.
We’ll start with an appetizer. Who wouldn’t want to invent the Starship “USS Enterprise”? Well, apparently these guys beat all of us to that goal:
WORSLEY ANDREW PETER, TWIST PETER JOHN in their patent application US2003114313 have founded the basic technological principals for the Enterprise’s Warp drive,
And if you would like to “beam” somebody up like our old chap Scotty you’ll probably will have to ask permission from these guy: ST CLAIR JOHN Q which in his patent application US2006071122 has invented a “Full body teleportation system”. Good for him.
This guy (ST CLAIR JOHN Q) has applied several other applications that are relevant to our discussion: US2006145019 named “Triangular spacecraft” (somebody have seen too many UFO movies), US2006014125 named “Walking through walls training system“ and US2006072226 “Remote viewing amplifier” which connect the human spiritual eye to the tetrahedral geometry of subspace. This guy walks on a different planet than the rest of us.
Off course, there are some other sci-fi space ships like for instance: “Battlestar Galactica” which looks very much like this WO0120164 application by AKIBA SHEIICHI “SPACE BATTLESHIP AIRCRAFT CARRIER”.
And let us not forget Star Wars. There is this patent application CA2572538 by EDISON PETER “TYPES OF THE EDISON PERPETUAL MOTORS ABOARD A STAR SHIP MAKING STAR WARS” although I think he is reaching to high, don’t you?
 
The next aspect of sci-fi movies we’ll examine is of course Phasers. Phasers have long been an integral part of sci-fi movies and books. For example, a guy from Germany named MERLAKU KASTRIOT who in his patent DE202006010661 “Beam weapon…” has invented, well, a laser gun.
Mind reading is another theme that runs deep in sci-fi’s blood. A good example is in the movie “signs” with Mel Gibson, where the kids cover their head with aluminum foil in order to deflect mind reading. Well, YOSHINOUCHI YUTAKA was deeply concern with his mind been copied by the “vicious Gray Orion” aliens (his words, not mine) that is invented a helmet to protect himself against them (and he is actually allowed to walk free) in his application JP2008038574.

Finally, I want to introduce you to a patent application JP2007124899 concerning the death of our sun. This guy, KAJISA ISAO has invented a DEVICE FOR INSTANTLY TELEPORTING EARTH TO STELLAR SYSTEM NEAR EARTH WHILE UTILIZING TELEPORTATION WHEN SUN BURNS OUT. As you all know a patent is valid for 20 years or so while our sun is supposed to burn out its fuel supply  in as little as 5 billion years (or 2 billion if the collision with the Andromeda galaxy will throw us into a black hole or something). To this guy I only have to say: “have you forgotten your medication?” By the way, there is a book named “The Ring of Charon” by Roger MacBride Allen and published in 1990 that deal with gravitational experimentation and the TELEPORTATION OF EARTH to another solar system. I wonder if that’s where our guy got his inspiration.


This is it ladies and gentleman, until next time goodbye and farewell. I’ll be flying home in my spaceship (or maybe teleport myself) to the planet Melmac.

Representatives Rick Boucher (D - Va.), and Bob Goodlatte (R - Va.) introduced legislation last week aimed at prohibiting patents on "tax planning methods." Introduced on May 21, 2009, H.R. 2584 seeks to amend title 35 of the U.S.C. by adding the following:

(1) UNPATENTABLE SUBJECT MATTER.—A patent may not be obtained for a tax
planning method.

(2) DEFINITIONS.—For purposes of paragraph (1)—
(A) the term ‘tax planning method’ means a plan, strategy, technique, or scheme that is designed to reduce, minimize, or defer, or has, when implemented, the effect of reducing, minimizing, or deferring, a taxpayer’s tax liability, but does not include the use of tax preparation software or other tools used solely to perform or model mathematical calculations or prepare tax or information returns;

* * *

(b) APPLICABILITY.—The amendments made by this section—
(1) shall take effect on the date of the enactment of this Act;
(2) shall apply to any application for patent or application for a reissue patent that is—
(A) filed on or after the date of the enactment of this Act; or
(B) filed before that date if a patent or reissue patent has not been issued pursuant to the application as of that date; and
(3) shall not be construed as validating any patent issued before the date of the enactment of this Act for an invention described in section 101(b) of title 35, United States Code, as amended by this section.

According to the American Institute of Certified Public Accountants, 77 tax strategy patents have been approved and the 129 that are pending "apply to a broad range of areas affecting regular taxpayers, including charitable contributions, estate and gift taxes, pension plans and deferred compensation."

Read/download H.R. 2584 here (link)

See:

"AICPA Applauds Introduction of Bill by Representative Boucher and Representative Goodlatte to Prohibit Tax Strategy Patents" (link);

"Congress Tries Again to Ban Tax Strategy Patents" (link)

See Also:

Wayne P. Sobon, "Business methods need patents " (link)

Donald Zuhn from the Patent Docs Blog is reporting on various events from this year's BIO Convention. On Wednesday, BIO held session on "A Model Patent Office for the Future -- Promoting and Protecting Investments in Innovation," where various leaders in the patent community discussed issues pertaining to the improving the PTO.

At one point Sherry Knowles, Vice President of Corporate Intellectual Property at GlaxoSmithKline Biopharmaceuticals, Inc., who also spearheaded the court challenge to the PTO continuation rule changes (Tafas v. Doll), asked a panel for their opinions on whether the PTO continuation rules were "substantive" or "procedural" in nature. While many on the panel (not to mention the district court and the CAFC) concluded the rules were "substantive", John Duffy, Professor of Law at George Washington University Law School (and former SCOTUS clerk) reportedly said the following, as accounted by Zuhn:

Prof. Duffy, noting his background in administrative law, suggested that Ms. Knowles would not be happy if the Supreme Court ever got their hands on the case. When Ms. Knowles stated that she thought the Supreme Court would provide a more favorable ruling for GSK than the Federal Circuit did, Prof. Duffy jokingly advised her to hire some new attorneys. When asked about his Supreme Court prediction after the session, Prof. Duffy indicated that the Supreme Court (where he once clerked) was not as familiar with patent law as it was with administrative law, and therefore, the Court would likely defer to the USPTO with respect to its interpretation of 35 U.S.C. § 120, and thus find the rule limiting continuations to be consistent with that section.

Presuming a CAFC en banc rehearing is denied, the current expectation (i.e., without knowing who will be the next PTO Director) is that a petition for certiorari will certainly be filed.

Read more about this and other happenings at BIO here (link)

The CAFC's ruling in Abbott clarified that infringement of a product-by-process claim will occur only when a product meets all of the process limitations recited in the claim. One would presume that the corollary - patentability - would require similar consideration.

Interestingly, Judge Newman, who dissented from the Abbott majority, wrote the opinion in In re Thorpe, 777 F.2d 695 (Fed. Cir. 1985), where it was stated that

Product-by-process claims are not specifically discussed in the patent statute. The practice and governing law have developed in response to the need to enable an applicant to claim an otherwise patentable product that resists definition by other than the process by which it is made. For this reason, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. In re Brown, 459 F.2d 531, 535, 173 USPQ 685, 688 (CCPA 1972); In re Pilkington, 411 F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA 1969); Buono v. Yankee Maid Dress Corp., 77 F.2d 274, 279, 26 USPQ 57, 61 (2d Cir.1935).

The patentability of a product does not depend on its method of production. In re Pilkington, 411 F.2d 1345, 1348, 162 USPQ 145, 147 (CCPA 1969). If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process. In re Marosi, 710 F.2s 799, 803, 218 USPQ 289, 292-93 (Fed.Cir.1983); Johnson & Johnson v. W.L. Gore, 436 F.Supp. 704, 726, 195 USPQ 487, 506 (D.Del.1977); see also In re Fessman, 489 F.2d 742, 180 USPQ 324 (CCPA 1974).

While not stated in Thorpe, it is generally known that, when the process steps "confer a structure or characteristic of the product which distinguishes it from products made by other processes, the process steps should be considered." In re Garnero, 412 F.2d 276, 279 (CCPA 1979).

While the CAFC majority commented that the Abbott ruling "follows this court’s clear statement in In re Thorpe that 'product by process claims are limited by and defined by the process'" (slip op. p. 18), it appears this quote is taken out of context, as the full quote (highlighted above) states that "even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself" - which appears to mean something different from from the majority interpretation.

In fact, Judge Newman, author of In re Thorpe, called the majority out on this in the Abbott dissent:

My colleagues are mistaken in stating that Thorpe held that all such claims are to be construed as process claims, even when the product is new and the rule of necessity justifies this mode of describing the invention. In Thorpe the product was not new; it was a known color developer for carbonless paper copy systems, and this court held that the PTO correctly rejected the claim to “the product of the process of claim 1,” explaining that since the product was old it could not be claimed as a product, whether or not process steps are recited in the claim. (slip op. p. 18)

Indeed, the USPTO has been tacking its rejection of product-by-process claims using Judge Newman's interpretation of Thorpe - since the beginning of this year, the BPAI has issued roughly 35 rejections of product-by-process claims using Thorpe, and they don't appear to be construing the claims pursuant to the Abbott majority.

Yikes . . .

See recent BPAI In Re Thorpe decisions here (link)

Abbott Laboratories v. Sandoz, Inc., (Fed. Cir. 2009) (en banc in part) 07-1400

While considering an appeal of a claim construction ruling from the Eastern District of Virginia, the court suddenly found itself faced with a dilemma regarding the construction of certain product-by-process claims: the plaintiff argued that the district court erred in construing the process steps of the claims by using rule in Atlantic Thermoplastics, 970 F.2d at 846-47, which stated that "process terms in product-by-process claims serve as limitations in determining infringement." According to the plaintiff, the proper construction lied with Scripps Clinic & Research Foundation v. Genentech, Inc., 927 F.2d 1565, 1583 (Fed. Cir. 1991), which stated that "the correct reading of product-by-process claims is that they are not limited to product prepared by the process set forth in the claims."

Acting sua sponte, (or as Professor Crouch puts it: "en banc sua sponte sub secretum") the CAFC took the issue for en banc resolution, despite the fact that the court received no briefing and held no argument on the issue.

In Atlantic Thermoplastics, the CAFC considered the scope of a product-by-process claim that recited "[t]he molded innersole produced by the method of claim 1." The patentee urged that competing, indistinguishable innersoles made by a different method nonetheless infringed. The CAFC rejected the patentee’s position, and construed the product-by-process claims as limited by the process.

Looking at the line of 7 Supreme Court cases dealing with the issue (spanning over the years 1874-1938), the CAFC concluded that the Atlantic Rule "finds extensive support in Supreme Court opinions that have addressed the proper reading of product-by-process claims . . .
The Supreme Court has long emphasized the limiting requirement of process steps in product-by-process claims. " Moreover,

[T]he Supreme Court has reiterated the broad principle that "[e]ach element contained in a patent claim is deemed material to defining the scope of the patented invention." Warner-Jenkinson, 520 U.S. at 19. Although Warner-Jenkinson specifically addressed the doctrine of equivalents, this rule applies to claim construction overall. As applied to product-by-process claims, Warner-Jenkinson thus reinforces the basic rule that the process terms limit product-by-process claims. To the extent that Scripps Clinic is inconsistent with this rule, this court hereby expressly overrules Scripps Clinic.

Furthermore, the majority opinion (Chief Judge Michel and Judges Rader, Bryson, Gajarsa, Linn, Dyk, Prost, and Moore) stated that

The dissenting opinions lament the loss of a "right" that has never existed in practice or precedent – the right to assert a product-by-process claim against a defendant who does not practice the express limitations of the claim. This court’s en banc decision in no way abridges an inventor’s right to stake claims in product-by- process terms. Instead this decision merely restates the rule that the defining limitations of a claim – in this case process terms – are also the terms that show infringement.

Thus this court does not question at all whether product-by-process claims are legitimate as a matter of form. The legitimacy of this claim form was indeed a relevant issue in the nineteenth century . . . However, this court need not address that settled issue. The issue here is only whether such a claim is infringed by products made by processes other than the one claimed. This court holds that it is not.

Product-by-process claims, especially for those rare situations when products were difficult or impossible to describe, historically presented a concern that the Patent Office might deny all product protection to such claims. See In re Butler, 17 C.C.P.A. 810, 813 (CCPA 1930) ("Process claims are valuable, and appellant thinks he is entitled to them; but it is submitted that he should not be limited to control of the process when the article which that process produces is new and useful."). In the modern context, however, if an inventor invents a product whose structure is either not fully known or too complex to analyze (the subject of this case – a product defined by sophisticated PXRD technology – suggests that these concerns may no longer in reality exist), this court clarifies that the inventor is absolutely free to use process steps to define this product. The patent will issue subject to the ordinary requirements of patentability. The inventor will not be denied protection. Because the inventor chose to claim the product in terms of its process, however, that definition also governs the enforcement of the bounds of the patent right. This court cannot simply ignore as verbiage the only definition supplied by the inventor.

------------------

Newman's Dissent (Joined by Mayer and Lourie)

Heretofore a new product whose structure was not fully known or not readily described could be patented as a product by including in the product description sufficient reference to how it can be made, to distinguish the new product from prior art products. Patentability was determined as a product, independent of any process reference in the claim, and validity and infringement were based on the product itself. This expedient for patenting products whose structure was not fully known at the time of filing the patent application has been called the "rule of necessity." It was pragmatic, fair, and just, for it attuned patent law and practice to the realities of invention.

Today the court rejects this expedient and discards this practice, ruling that all claims containing a process term under the rule of necessity now must be construed, for purposes of infringement, as limited to use of any process term that was used to assist in defining the product. That is, such a product is not patented as a product, however it is produced, but is limited to the process by which it was obtained. This is a new restraint on patents for new products, particularly today’s complex chemical and biological products whose structure may be difficult to analyze with precision. It is a change of law with unknown consequences for patent-based innovation.

The court acts sua sponte, without explanation of what policy is intended to be served by this change, without consideration of the technologies that may be adversely affected by elimination of this expedient, without notice to those whose property rights may be diminished. In so doing, the court departs from statute, precedent, and practice. This change is as unnecessary as it is flawed, gratuitously affecting inventions past, present, and future. I respectfully dissent.

NOTES:

- The en banc ruling clearly mitigates a potential certiorari showdown at the SCOTUS, which would have had a good chance of review if the Scripps ruling prevailed.

- While there appears to be some legitimate concern over procedural violations on the sua sponte ruling, Hal Wegner has notes that the CAFC's actions follow previous, similar actions in Kingsdown Medical Consultants, Ltd. v. Hollister Inc., 863 F.2d 867 (Fed. Cir. 1988)(Markey, C.J.)(en banc in part); Midwest Industries, Inc. v. Karavan Trailers, Inc., 175 F.3d 1356 (Fed.Cir.1999)(Bryson, J.)(en banc in part); and DSU Medical Corp. v. JMS Co., Ltd., 471 F.3d 1293 (Fed. Cir. 2006)(Rader, J.)(en banc in part).

- This ruling appears to follow a judicial trend of firming up the notice provision for patentees and their claim terms, and adding a further level of complexity to patent claim drafting: while insufficient claim detail may lead to invalidity, additional claim details may foreclose avenues of infringement.

- For whatever it's worth, 2 of the 3 dissenting judges hold PhD's in the chemical arts (Newman: PhD Yale, 1952, Lourie: Univ. of Penn., 1965).

Last December, Chief Circuit Judge Michel gave the keynote address at the FTC hearings on "The Evolving IP Marketplace", where Judge Michel addressed the state of patent law and patent reform. Frankly, it's one of the most sober and rational patent reform speeches in recent years, and I thought it would be worthwhile to help distribute a transcript of the speech. While the FTC has a transcript available here (link), I cleaned up the FTC version and made it available at the link provided below.

Some key "highlights" from the speech:

Addressing the oft-cited contention that too many "junk" patents are issued:

But I suggest that as we move forward . . . that it's worth pausing to consider for just a minute what do we really mean when we're talking about more patent quality. Certainly lay people and maybe some lawyers could be forgiven if they take that as a suggestion that a very large number of patents are just flat-out invalid. That is, the entire patent is a piece of junk, worth nothing, illicitly granted.

I've been on the court for twenty years and eight months, and I cannot ever remember seeing a single patent, I'm sure they're out there, but I can't remember seeing one where every single claim was invalid. I've seen innumerable patents where some of the broader claims either were indefinitely broader or were damn close, but in all of those cases, the narrower claims seemed to me equally clearly to be plainly valid. So what we really have is a problem of some over-broad claims getting through the system, slipping through the sieve that in the ideal world would catch them.

On the "litigation explosion" and "wasteful litigation":

I keep hearing that we have a ‘litigation explosion’ in patent infringement cases. I keep hearing that we have lots of ‘wasteful litigation.’ I keep hearing we have excesses and abuses of certain types of defendants or maybe plaintiffs in some of these cases. I also read that for quite a number of decades now, the percentage of extant patents sued on has remained almost exactly the same, at about percent, so if you have a lot more patents out there, you would expect more lawsuits, and that's exactly what you get.

 

Now, of course you can say, yeah, but they're all bad patents. Well, maybe or maybe they're partly bad and partly good, so a little hard to be sure. I'm a skeptic about whether we have an excess amount of wasteful litigation or a crisis or a patent litigation explosion.

 

Now, as you may have heard me already throw out the number, about 3,000 patent suits filed a year, but the more interesting numbers that start to reduce that is that about 90 percent settle voluntarily. Now, of course now you may say, but yeah, only under coercion and under threats, under a gun at your head. All those kind of arguments. Well, maybe. Maybe. But 90 percent never go to trial, so when we're talking about trial expense, trial delay, not minor matters, we're not talking about 90 percent of the lawsuits. We're talking about 10 percent of the lawsuits. What happens to the 300 that don't fall out on voluntary settlements between the parties?

 

Well, over two-thirds of them get resolved on summary judgment. Now, summary judgment isn't cheap. I'm not trying to make that argument, but it's a lot less expensive than a full trial, lots less, and much faster almost always, not in every case, but normally.

 

So now we're down to about a hundred trials per year, ball park figure. (All these figures are just ball park figures). If we step back and we say, all right, we're a nation, highly developed, high technological, fully industrialized advanced nation of 300 million people. We have something like a million and a half patents in force, and we have what, 30,000 companies in the marketplace? I don't even know the exact number, but accept the notion that it may be somewhere like 30,000 players. Are a hundred trials excessive in a country of that size and that vitality with that many patents extant? And what happens when there are trials? Most of them get affirmed on appeal. Of course, that also means some get reversed, but the numbers again are kind of instructive.

On the PTO, and it's ability to deal with patent reform:

So, of course, the magic bullet is a new kind of reexamination in the Patent Office. That's what everybody says will solve the problem. Why? It will be faster and cheaper than court trials. Well, maybe. In the real world, we've got a Patent Office that struggles to keep up with its current work. What basis would we have for confidence, particularly if it doesn't have a tripled budget, that it can run in-house what amounts to a court system with cross examination and discovery rules and a Judge presiding and making fact findings or Administrative Patent Judges even trained for this? How hard would it be to get them up to speed to function just the way District Court Judges do or ITC administrative judges in patent cases? I think these are hard questions, and I don't think the answers are too obvious, but they certainly give me a lot of pause.

* * *

Now, certainly the existing reexamination process has been less than a stellar success, and it certainly doesn't look faster than the courts, as slow as the courts are, compared to how they should be. I can't testify about how much cheaper it is, but the stories I've heard don't sound too encouraging, and then there's a big question of: Is it adequately accurate? Is it more accurate than what would happen in a well-run district courtroom? I'm not sure.

* * *

I'm told that the average examiner has been in the corps less than three years. Less than three years! That's a horrible fact in this country, even for our ongoing system of ex parte examination. If you try to lay on top of that a new beefed up litigation-like re-exam process, are there people there who can do it? Can the examiners do it? Can the supervisors do it? Even the board is also drowning in cases. They've greatly expanded in recent years. I think it's somewhere up to in the neighborhood now of 80 Administrative Patent Judges. What do they need, 160, 390? No one even knows what they would need to run these trials.

On "excess" damages:

Now, of course when you talk about the courts, their awards, people talk about excess damages. Everyone can cite some example of what they consider a horrendously excess damage award. A fair number of what I've read in print turn out to be nonexistent cases. I kept reading about the windshield wiper case where the cost of the car was used as the metric of damages, but I haven't been able to find such a case.

 

And Professors Jaffee and Lerner, who are very highly qualified economists, wrote in their book, which many of you read, that the courts often give double damages and actually cited a case that I was involved in as an example of double damages, and they said that I gave both lost profit damage and reasonable royalty damages to the winning patentee. Well, yeah, the Court did. Of course it did, because it was for different products and different time ranges, two different forms of damages, but they weren't -- but that's not double payment. That's paying once, so there's a lot of misunderstanding out there.

 

There are a lot of apocryphal cases that turn out to not really exist, and there are certainly some very large damage numbers; no question about that. On the other hand, most of those large damage amounts involve very large markets, very large profits, so we shouldn't be surprised, I wouldn't think. In any event, a few examples, if they're not very representative, hardly prove that excesses are common, but that's the charge, that half the time the damages are wildly out of proportion to anything that would be sustainable in common sense. It's easy to use words like ‘appropriate.’ The FTC talks about whether damages are ‘appropriate.’ Well, it's a little bit in the eye of the beholder. What you might think was appropriate I might think was way too little or way too much, but it's a pretty inexact yardstick.

On "trolling" and NPEs:

Then the argument keeps shifting. Well, it's not so much the number of infringement suits filed every year, it's who's filing. Well, why should we assume that a non-manufacturing patent owner shouldn't be allowed to enforce its patent? What is wrong with a university owning patents based on research of its faculty scientists or research institutes or small inventors or small innovative companies that either can or don't want to try to manufacture products themselves but license their inventions so others can make them?

 

Well, are these patentees really illegitimate somehow? I mean, after all, at least up until now a patent has given its owner the right to exclude, not the obligation to make. Then some say, well, it's not so much the non-practicing entities, it's certain companies that don't invent at all, but merely acquire and enforce patents, and of course calling them ‘trolls’ just confuses the analysis because obviously a troll is a bad thing.

It's a pejorative label. (Some people who used to complain about trolls allegedly have become trolls). But I don't think that it's helpful -- it's a slogan. It's a label. It's an excuse to not think carefully about the problem, as far as I'm concerned. It's like talking about ‘questionable patents.’ It's an excuse to not think carefully about the problem as far as I'm concerned. It's like talking about questionable patents. It's not helpful if we're going to try to diagnose the real illness and prescribe a useful medicine.

Besides, patents, like any other form of property, the essential element of property is it is alienable. You can sell it. You can sell it to anybody you want to for whatever price you want to sell it. Why should that be prohibited? Why should I be prohibited from buying patents if that's what I want to do, whether I invented them or not, whether I am going to practice them or not, whether I'm a research institution or a university or not? There might be some reasons. Maybe some of them are good, but it's not self-evident, at least not to me.

 

Then there's certainly the debate about motives. Well, they just want to acquire patents so they can squeeze royalties out of infringers. Well, yeah. Hey, this is commerce. This is about money. This is not an altruistic system. The whole constitutional idea was that the incentive of monetary gains would motivate innovation at a greater rate and to better ends than if the lure of money wasn't there, so I'm a little dismayed when I see it even creep into footnotes of Supreme Court opinions, that certain patentees were just trying to squeeze money out of the accused infringer. Well, all kinds of patentees are trying to squeeze money out of the accused infringer. That's what the lawsuit is all about, so come on. Let's be a little more adult about it than to worry about the greedy motive of the patentee. Of course the patentee is greedy.

There's much more in the speech, and it's a very informative and entertaining read - download a (cleaned-up) copy of the transcript here (link)

© 2009, Michael E. Kondoudis

An application data sheet (ADS) is a document that provides the bibliographic data for an application to the USPTO.  The USPTO prefers, but does not require, the use of an ADS.  An ADS can be advantageous, however, because it tends to reduce errors in the conversion/recordation of application data into the  USPTO’s official electronic  data record.  While electronic filing via the USPTO’s EFS-Web has certainly reduced some errors, the USPTO relies on the uploaded documents (e.g., declaration, specification), rather than a user’s input, to create its official electronic record.  For example, in a national stage application filed under 35 USC § 371, the USPTO might look to the publication of the international application for the title and to other documents for the listing of inventors and the correspondence address.   The use of an ADS, because it provides this information in a single document and in a specified format, improves the accuracy of this conversion and the resulting electronic record.

Examples of What Can Happen Without an ADS
The USPTO’s procedures for converting the application data of paper applications and for recording electronic data into its official data record are surprisingly accurate, in view of the number of application data records it must create.  Nonetheless, as with any system, errors do occur.  And, even when they are remedied early in the prosecution process, they still take time and can cause processing delays.  Worse yet, sometimes errors in the USPTO data records are not corrected.  Consider the following U.S. patents, which could have benefited from an ADS:

1. U.S. Patent Nos. 6,112,451, 6,631,400, and 6,637,044, each for a “Statement Regarding Federally Sponsored Research or Development”;
2. U.S. Patent No. 7,263,562 for a “Method and System for Describing Uploaded Files Statement Regarding Federally Sponsored Research or Development”; and
3. U.S. Patent No. 6,389,215 for “Low Birefringent Polyimides for Optical Waveguides Statement Regarding Federally Sponsored Research or Development”.

And then there are:

1. U.S. Patent No. 6,930,045 for “Cross Reference to Related Application”;
2. U.S. Patent No. 6,829,526 for a “Train Detection System and a Train Detection Method Cross Reference to Related Application”; and
3. U.S. Patent No.  6,786,734 for an “Electrical Adapter With a Foldable Housing Cross-Reference to Related Application”.

Clearly, there are instances when an ADS would have helped the USPTO more accurately convert bibliographic information into an official data record.

The Requirements for an ADS
37 CFR § 1.76 governs application data sheets and sets forth specific requirements for each ADS.  The following are some of the more noteworthy.

1.  An ADS may be used in provisional and nonprovisional applications.  37 CFR § 1.37(a).

2.  The USPTO offers a fillable pdf form (Form PTO/SB/14) on its website here.  CAUTION - The USPTO ADS fillable form must be submitted as a text-based PDF file. A scanned version of the ADS fillable form will be rejected via EFS-Web because EFS-Web will not be able to auto-load scanned in data into backend systems.   (Answer to USPTO.GOV EFS-Web Help FAQ # 252).

3.  An ADS must be in a specific format.  An ADS must be titled “Application Data Sheet” and must contain all of the following section headings, with any appropriate data for each section heading:

1. Applicant information (i.e., the name, residence, mailing address, and citizenship of each applicant);
2. Correspondence information (i.e., the correspondence address, which may be indicated by reference to a customer number);
3. Application information (i.e., the title of the invention, a suggested classification, by class and subclass, the Technology Center to which the subject matter of the invention is assigned, the total number of drawing sheets, any docket number assigned to the application, the type of application);
4. Representative information (i.e., the registration number of each practitioner having a power of attorney in the application);
5. Domestic priority information (i.e., the application number, the filing date, the status, and relationship of each application for which a benefit is claimed under 35 U.S.C. 119(e), 120, 121, or 365(c));
6. Foreign priority information (i.e., the application number, country, and filing date of each foreign application for which priority is claimed) (NOTE - providing this information in the application data sheet constitutes the claim for priority as required by 35 U.S.C. 119(b) and § 1.55(a); and
7. Assignee information.

37 CFR §§ 1.76 (a) and (b).

4.  Providing domestic priority information in an ADS constitutes the specific reference required by 35 USC § 119(e) or 120, and 37 CFR §§ 1.78(a)(2) or 1.78(a)(5), such that this information need not otherwise be made part of the specification.  37 CFR 1.76 (b)(5).

5.  The USPTO will interpret any blank section in an ADS to mean that there is no corresponding data for that label anywhere in the application.  37 CFR § 1.76(a).

6.  In the event of an inconsistency between the ADS and other submitted documents, the timing of the submission of the conflicting information controls.

• When the conflicting information is submitted at different times - the latest submitted information governs regardless of how it is supplied, except that an oath or declaration governs inconsistencies in the naming of inventors or their citizenship.
•  When the conflicting information is submitted at the same time - the ADS will govern when the inconsistent information is supplied at the same time, except that an oath or declaration governs inconsistencies in the naming of inventors or their citizenship.

37 CFR 1.76 (d)