Aug
10

QUESTIONS TO ASK A PERSONAL INJURY LAWYER- MIAMI DADE- BROWARD- PALM BEACH- CALL 1-800-559-4320

Questions To Ask a Personal Injury Lawyer?

If you or a loved one has experienced a personal injury,  chances are you have a lot of questions.  Fortunately, personal injury lawyers are here for you during this difficult time.  At our office, we receive important questions from concerned individuals every single day, and it is our goal to answer all of them, no matter which personal injury practice area you have questions about.

Regardless of the personal injury that you have sustained, you should be armed with several key questions during your introductory consultation with a lawyer.

  1.  What is your contingency fee?
  2. Will I be responsible for any advanced case costs at all if we lose?
  3. Have you tried these types of personal injury cases before?
  4. Do you have the time necessary to actually work on my case now?
  5. When will my lawsuit be filed?
  6. Will my case actually go to trial? And if so when?
  7. What is my case worth?
  8. Will you be the actual attorney handling my case?
  9. What will my participation in the lawsuit be?
  10. Will you get me more money than other attorneys and why?

For more specific personal injury questions, having to deal with individual practice areas, we’ve already taken many of your most asked questions from a multitude of our areas of expertise, ranging from auto accident, to wrongful death to child injury accident, and have written helpful, comprehensive blogs to answer them.

When you or a loved one is injured through no fault of your own, it is vital that you speak with an experienced Florida personal injury attorney as soon as possible.  If you have questions, we ask that you call us today at 1-800-559-4320.

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Posted in Uncategorized on August 10,2018 03:08 PM

OTHER RECENT POSTS

Aug
08

ENABLEMENT MUST BE MET AS OF THE PATENT’S EFFECTIVE FILING DATE AND COVER ALL PERMUTATIONS OF A CLAIM(S)

Introduction

In its July 25, 2018 decision in Trustees of Boston University (BU) v. Everlight Electronics Co., Ltd., et al., the Court of Appeals for the Federal Circuit found that claim 19 in U.S. patent No. 5,686,738 did not satisfy the enablement requirement of 35 U.S.C. § 112 resulting in invalidation of the claim.   In finding for the defendants, the court reversed the district court’s denial of defendant’s motion for JMOL that claim 19 was invalid on lack of enablement grounds.

Background

Under § 112, the patent’s specification must contain “a written description of and invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains  . . .to make and use the same.”  The test for enablement is whether the “specification teaches those skilled in the art hot to make and use the full scope of the claimed invention without “undue experimentation.”

The commentator previously blogged about the importance of the written description in claim evaluation.  That requirement focuses on the adequacy of the disclosure for establishing a link between a claimed element and what the specification discloses.  Although closely related to the written description requirement, the enablement requirement focuses more on whether the specification sufficiently disclose details on how to make and practice the invention.

The Case

The subject matter of the ‘738 patent involved LED semiconductor devices.  LEDs typically consist of multiple layers – a substrate, and two different types of semiconductor layer. .  The layers are solid-state materials having one of three types of crystal lattice structures:  monocrystalline, polycrystalline, or a mixture of polycrystalline and amorphous regions.  Solid-state materials can also just be amorphous.

Semiconductors are fabricated by a process known as epitaxy.  The process involves first depositing molecules of a semi-conductor on a substrate.  A successful epitaxy process occurs when the lattice structure of the substrate and the deposited semiconductor layer are the same.   Any lattice mismatch can create defects in the deposited semiconductor.

Gallium nitride (GaN) is a semiconductor that emits blue light in LEDs.   Fabrication of semiconductors using GaN had proven difficult prior to the filing BU’s patent application.  The ‘738 patent addressed this difficulty with a two-step epitaxy-induced growth process comprising a: 1) low temperature nucleation step and; 2) a high temperature growth step.  At the lower temperature, the substrate is exposed to gallium and nitrogen, resulting in an amorphous film of GaN defined as the “buffer layer” growing on the substrate.  An amorphous solid does not have a definite geometric or crystalline shape and is any noncrystalline solid in which the atoms and molecules are not organized in a definite lattice pattern.

The subsequently introduced higher temperature causes the amorphous GaN buffer layer to crystalize, thereby allowing monocrystalline GaN to be grown on the now crystallized buffer layer without lattice mismatch.  Basically, the process is one in which the substrate is pre-conditioned to create a surface onto which monocrystalline GaN could be successfully deposited.

As often happens with patent validity claim disputes, the district court had to construe the meaning of two relevant terms (i.e., engage on claim construction) in what was a relatively simply-worded Claim 19:  A semiconductor device comprising a substrate . . . ; a non-single crystalline buffer layer, comprising a first material grown on said substrate; and a growth layer grown on the buffer layer . . . .   The district court construed “grown on” to mean formed indirectly or directly above.  This construction meant that the growth layer and the buffer layers do not have to be in direct contact and could be separated by intervening layers.

The district court construed “a non-single crystalline buffer layer to mean a layer of material that is not monocrystalline, namely (1) polycrystalline, (2) amorphous, or (3) a mixture of polycrystalline and amorphous located between the first substrate and the first growth layer.   This claim construction resulted in six possible permutations involving claim 19’s growth layer and buffer layer.

The enablement issue focused on only one permutation:  a monocrystalline growth layer formed directly on an amorphous buffer layer.  Here, the Defendants, upon appeal of the jury decision finding infringement to the Federal Circuit, argued that claim 19 is not enabled because it does not teach one skilled in the art how to make the claimed semiconductor device with a monocrystalline growth layer directly on an amorphous buffer layer.  In arguing against claim 19, the Defendants asserted that the specification teaches only epitaxy as the method for growing a monocrystalline film directly on an amorphous structure.  And, according to the Defendants’ expert witness, it was impossible to epitaxially grow a monocrystalline film directly on an amorphous structure at the time the patent application was filed.   The district court had also noted that “[i]t is less clear whether the patent teaches how to grow a monocrystalline GaN layer directly on an amorphous buffer layer, with no intervening layers.”

Unfortunately for BU, the concise patent specification repeatedly focused on epitaxy and variants of the epitaxy.  The abstract even used the word epitaxy.  A non-epitaxy method was not referenced or otherwise disclosed.   BU argued that the ‘738 patent does not teach epitaxy as applied to permutation 6 because epitaxy involves a crystalline layer on top of a crystalline layer.  Applying a crystalline layer on top of an amorphous structure does not meet the definition of epitaxy.  The Federal Circuit discounted this argument.

Nor did the ‘738 patent include any non-epitaxial teaching in the specification.  Had that teaching been included, claim 19 may well have met the enablement requirement.

The testimony of the inventor himself also never described a monoycrystalline growth layer on an amorphous buffer layer without also mentioning some level of crystallinity already present in the buffer layer.   Therefore the amorphous buffer layer was apparently not truly crystalline-free; some level of crystalline structure was present to serve as a “seed” for the growth of the monocrystalline growth layer via the epitaxy process.

Additional testimony, now given many years after the ‘738 patent application was filed, showed that a monocrystalline layer could be directly grown on an amorphous buffer layer.  The Federal Circuit declined to rely on this fact by pointing out the following:  “[t]he inquiry is not whether it was or is possible to make the full scope of the claimed device.  The inquiry is whether the patent’s specification taught one of skill in the art how to make such a device without undue experimentation as of the patent’s effective filing date.”

BU may have prevailed had it been it able to establish that the results were accomplished by following the specification’s teaching or that achieving these results was within an ordinary artisan’s skill as of the patent’s effective filing date.  As the Court pointed out, the enablement requirement is not met by simply observing that it could be done and making a claim thereto.

Nor did the Federal Circuit buy BU’s argument that the ‘738 patent need not enable the claimed device with a monocrystalline growth layer directly on an amorphous buffer layer because there was no enablement dispute over the other five permutations.  The Court emphasized that “its precedents make clear that the specification must enable the full scope of the claimed invention. . . .The scope of the claims must be less than or equal to the scope of the enablement.”

The Court further emphasized that the specification need not disclose what is already well known in the art because “the artisan’s knowledge of the prior art and routine experimentation can often fill gaps, interpolate between embodiments, and perhaps even extrapolate beyond disclosed embodiments, depending upon the predictability of the art.”  However, here where epitaxy had not been previously successfully applied to growing a microcrystalline layer on a truly amorphous buffer, more disclosure was clearly required.

The opinion closes with a warning about claim construction:  Understand the ramifications of what you wish for.  BU sought a construction of a “non-single crystalline buffer layer” that included a purely amorphous layer.  This construction was sought for infringement purposes, i.e., to use this claim construction to establish that BU had the right to exclude the defendants from practicing claim 19.  By choosing this construction, BU had to defend itself against defendants’ enablement challenge.  According to the Federal Circuit, the defendants had proven their case with clear and convincing evidence that claim 19 was not enabled by the specification as of the effective filing date of the patent application.

 Some Points to Ponder

Despite the fact that a jury determined that various Defendants infringed claim 19, the Defendants ultimately prevailed because claim 19 was not enabled by the specification.  BU’s application had been filed in 1995 and granted in 1997 or about fifteen years (15) before its lawsuit for infringement was brought in the District Court for the District of Massachusetts.   By then the technology had surpassed what had been an improvement in the LED manufacturing process at the time BU’s patent application was filed.  This case illustrates how technology advances can make an otherwise sound patent obsolete.

It also demonstrates that patent enablement requirements intersect with claim validity requirements.  This does not mean that the applicant/inventor need conduct extensive research/optimization testing to obtain a patent.  What it does mean is the specification include sufficient information given the state of the prior art and the technical area’s predictability to teach the public how to make and use the invention without undue experimentation.   As the BU Court stated, “[t]at is part of the quid pro quo of the patent bargain.”

The case also shows the importance of definitions in the disclosure.  The amorphous buffer layer used to practice BU’s invention was not truly amorphous but had some level of crystallinity according to the inventor.   This layer was really an amorphous buffer-crystalline hybrid.  Had BU been able to show that the amorphous GaN buffer layer was just that (i.e., devoid of crystalline structure) at the time the inventor’s experimentation was done, then its infringement win in the lower court may well have been upheld.

The Bottom Line:  Make sure that any specification sufficiently describes the invention and its various embodiments and elements to meet the written description requirement.  Then ensure that the invention, as disclosed and claimed, can be practiced.  Match each and every claim against the specification to verify that it will pass muster under both specification requirements.

 

© 2018 by Troy & Schwartz, LLC

WE THANK YOU FOR READING THIS BLOG.  HOWEVER, THE FOREGOING IS NOT LEGAL ADVICE AND IS PRESENTED FOR INFORMATIONAL PURPOSES ONLY.  IF YOU ARE CONTEMPLATING ANY ACTION THAT MAY HAVE LEGAL CONSEQUENCES, YOU SHOULD CONSIDER CONSULTING WITH AN ATTORNEY.

 

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Posted in Uncategorized on August 08,2018 01:08 PM
Aug
08

Handling Traffic Citations in Dade, Broward, Palm Beach County Attorney- 1800-559-4320

Dealing with unknown, suspended licensed, speeding tickets and other traffic violations and citations require plenty of time, effort and patience.  Citations can also cost a lot of money as well, not to mention, the stress and aggravation it might bring an individual.  Troy & Schwartz will help you to deal with these things.  We will speak on your behalf and present the case efficiently with the help of our firm.

If you are issued a ticket that has a box checked on the words “criminal violation court appearance required,” it is a mandatory court appearance.  Our lawyers are knowledgeable and will provide a comprehensive defense to your charges.

Why hire a Speeding Ticket Lawyer

Points on your license may bring you future inconveniences such as increased insurance premiums, being forced to attend court hearings and possible suspension of your license.  We can assist you in the defense of your Speeding Ticket.

Call us Now:   1-800-559-4320.  Miami, Coral Gables, Kendall, Pinecrest, Palmetto Bay, Aventura, Homestead, Monroe County, Ft. Lauderdale, Boca Raton, Doral Lawyers Traffic Ticket Defense, Criminal Defense, Accidents.

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Posted in Uncategorized on August 08,2018 09:08 AM
Aug
06

Don’t Lose Out on Trademark Registration by Submitting Faulty Specimens!

I.   Background

Trademark applicants may mistakenly assume the USPTO’s specimen requirements play second fiddle to other trademark registration requirements (e.g., no likelihood of confusion, not merely descriptive or generic, etc.)  That is, if the examining attorney finds that the proposed mark meets non-specimen related registration requirements, the submission of specimens is a mere formality for being granted registration of the mark.  This misplaced belief can result in a refusal by the examining attorney to register the mark.

The commentator has previously blogged about specimen-related issues that will likely prevent an otherwise satisfactory applied-for mark from being registered.  The Trademark Trial and Appeal Board’s recent decision in In re Midwestern Pet Foods, Inc. (July 18, 2018) is another reminder that non-compliant specimens will prevent registration of the mark.

In Midwestern, the applicant’s word mark EARTHBORN REBORN for pet food, submitted to the USPTO  as in intent-to-use application, received a Notice of Approval.  The applicant’s registration problems started when it submitted specimens with its Statement of Use.   Under the Trademark Act, the specimen must show a substantially exact representation of the mark as used in commerce.  Additionally, for goods (in this case pet food under International Class 31) the specimen must establish that the mark is used in connection with the identified goods.  Put another way, the specimens must establish that the consumer will readily identify the mark as being associated with the goods the consumer plans to purchase.

In Midwestern, the applicant had submitted a website shot of the actual product as its specimen.   Oddly the screen shot mentioned nothing about a pet food product but instead stated “Turn your empty earthborn holistic bags into recycled products and earn money for pet charities in the process.”   The applied-for mark was a simple word mark for the words EARTHBORN REBORN.  The specimen displayed the mark as EARTHBORN HOLISTIC inside of a circular design with the wording REBORN below and overlapping the circle.  Basically the specimen showed a mark with the intervening word  “holistic” separating the words Earthborn and Reborn.  This presentation was deemed an unacceptable material alternation of the approved word mark EARTHBORN REBORN.  Nor was there any reference to pet food in the submitted specimen.

The types of specimens acceptable for goods include tags, labels, instruction manuals, and packaging showing the mark on the actual goods or displays associated with the actual goods at their point of sale.  The USPTO, in recognition of the fact that many goods are sold on websites, will accept webpages as specimens as long as they include a picture or textual description of the goods associated with the marks and specify the means to order the odds or services associated with the mark.  Generally, the mark in combination with the good/service and the ordering means must be presented on the same webpage.  Such a website page layout should serve as an acceptable point of display of the mark.

The USPTO allows an applicant to submit a substitute specimen if the original specimen is not accepted by the examining attorney for registration purposes.  Surprisingly, the Midwestern applicant did not submit a substitute specimen but instead filed a response that did not address the specimen’s deficiencies and even stated that the recycling container depicted in the specimen as an acceptable point-of-sale display as ancillary services to goods.

Not surprisingly, the examining attorney issued a final refusal.  Then the applicant filed a Request for Reconsideration and submitted a substitute specimen.  The substitute specimen was an advertisement faxed to the USPTO containing an image of the applicant’s recycling bin which now featured the prominent EARTHBORN REBORN abutting images of the applicant’s pet food contained in bags.  The substitute specimen was accompanied by an affidavit of a corporate representative stating that the recycling bins featuring the mark are located in the same retail locations as the where the applicant’s pet food is sold, thus “encouraging our customers to buy our pet foods and recycle out bags.”  The affidavit further stated that the bins serve as point-of-sale displays that further “strengthen our customers’ association of the EARTHBORN REBORN mark with our pet food.”

The examining attorney denied the Request for Reconsideration on the same grounds she had specified in her final rejection and the applicant appealed.  The Board considered both the original and substitute specimens in rendering its opinion.

II. The Board’s Conclusions

  • The original specimen was not a substantially exact representation of the mark because EARTHBORN HOLISTIC is not congruent with the word REBORN. As depicted, the word EARTHBORN is “entwined” both physically and conceptually with the word HOLISTIC.   This presentation prevents EARTHBORN and REBORN from “engendering a separate commercial impression apart from the remaining elements” of the specimens.   That is the mark EARTHBORN REBORN is not presented  as a “stand-alone” mark.
  • The substitute specimen which included the words “Through our EARTHBORN REBORN” recycling program . . . .” Here, the Board deemed this presentation as a substantially exact representation of the drawing presented in the application.
  • Both the original and substitute specimens failed to show the applied-for mark in connection with the identified goods. The Board noted that the specimens did not involve containers, tags, or labels.  The deciding factor was whether the provided specimens constituted a display associated with the goods specified in the application, namely pet food.   To be an appropriate point of sale display, the usage of the mark must be at the “point of sale location to provide a customer with the opportunity to look to the displayed mark as a means of identifying and distinguishing the source of the goods.”  The Board citing In re Sones, 590 F.3d 1282, 1293 (Fed. Cir. 2009).

Regarding the original specimen, the Board found that the webpage specimen did not contain a picture or textual representation of pet food;  it did not show the mark EARTHBORN REBORN in association with pet food; and it did not provide a recognizable means for the customer to order the pet food.  The only product depicted was a recycling bin.  The Board also stated that website tabs labelled, e.g., “Learn Me” and “Find a Dealer” are not recognized means of ordering website goods for trademark specimen purposes.

Regarding the substitute specimen (which was found to meet the first prong of the specimen suitability test), the applicant argued that the advertisement constituted a point of sale display.  Again, the Board found that EARTHBORN REBORN mark functioned as a source identified for a recycling program, not pet food.  The Board had no information as to how the flyer was used in connection with the marketing and sale of the applicant’s pet food in retail locations.  Accordingly the Board refused to register the mark because the substitute specimen failed to meet the “point of display” requirement.

III.  Discussion and Take-Home Points

This case is a good example of how lack of communication can result in the rejection of an otherwise acceptable mark.  Here the applicant had come up with a catchy mark which was subsequently denied registration on “inadequate” specimen grounds.   So what went wrong?

It is this commentator’s opinion that an attorney who files, in particular an intent-to-use application, should inform the applicant of the specimen requirements should the mark receive a Notice of Approval early on.  Sometimes a great deal of time can pass between the issuance of the Notice of Approval and the submission of the required Statement of Use because the applicant is working on the getting the product to market and can request up to 5 extensions of time for submitting the required specimens.  The attorney should also inform the applicant that it would be a good idea for the attorney to review labels, marketing materials, etc. showing the mark before these items are actually used in commerce to ensure that they will meet the requirements of the USPTO from a specimen perspective. This would include examining website pages to ensure that the “point-of-sale” requirements will be met with a website page specimen.

If a 1A application is to be submitted, the attorney should not be hesitant to tell the applicant to “design” or “fix” a specimen so as to prevent a registration problem.

Also, specimens are to be current representations showing usage of the mark in commerce.  Furthermore, any future updates of the specimens once the mark is registered must continue to show the mark as depicted in the application’s drawing; material alternations may affect the mark’s registration status.

In Midwestern, it is also not clear why the original application did not specify both pet food as a good and recycling services as a service for which trademark registration was being sought since it seems that its “favorite” marketing focus aspect was promoting the recyclability of its pet food’s packaging, not the pet food itself.  Nevertheless, a specimen showing usage of the mark in connection with the pet food good would still have been required.

In conclusion, with the appeal, the applicant spent a lot a money trying to overcome obvious specimen errors only to still be denied registration of its mark.   There were also some procedural issues concerning the appeal process itself that are not discussed here but are detailed in the opinion.

The Bottom Line: The trademark registration process should not be conducted in a vacuum. Attorneys should be consult with the applicant about the specifics concerning the presentation of the applied-for mark in its marketing endeavors from labels to website presentations to ensure that they comply with specimen and mark usage requirements.  This proactive approach will help ensure that an otherwise acceptable mark will not miss out on registration due to faulty specimens.

 

© 2018 by Troy & Schwartz, LLC

WE THANK YOU FOR READING THIS BLOG.  HOWEVER, THE FOREGOING IS NOT LEGAL ADVICE AND IS PRESENTED FOR INFORMATIONAL PURPOSES ONLY.  IF YOU ARE CONTEMPLATING ANY ACTION THAT MAY HAVE LEGAL CONSEQUENCES, YOU SHOULD CONSIDER CONSULTING WITH AN ATTORNEY.

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Aug
06

Reckless Driving Charges in Florida- 1800-559-4320

Driving is more than a privilege.  Without transportation, day-to-day life can grind to a halt.

What is Reckless Driving?

There are a number of behaviors which can result in charges of reckless driving, including speeding, tailgating, failure to yield and weaving in and out of traffic.  Reckless driving can actually be sort of a “catch-all” term, even covering screeching around a corner, or suddenly slamming on the brakes.  Reckless driving puts others on the roadways in danger as well as putting the driver who is driving in a reckless manner in harm’s way.

Many feel reckless driving is a fairly minor offense, however the charges can be quite serious.  Reckless driving is considered a second-degree misdemeanor under Florida law, yet the punishment for a reckless driving conviction can be as much as ninety days behind bars, six months’ probation and/or a fine as large as $500.  A person who is convicted of a second offense of reckless driving could face double those penalties, with the potential of as much as six months incarceration.

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Posted in Uncategorized on August 06,2018 11:08 AM