Anticipate This!™ | Patent and Trademark Law Blog

Sinorgchem v. ITC & Flexsys America – Update.

Posted in Litigation Commentary by Jake Ward on January 4, 2008

Flexsys has issued a press release responding to the CAFC’s recent decision regarding the patent infringement suit with Sinorgchem.  See previous AT! posts on the ongoing litigation here , here, and here

An excerpt from the Flexsys press release follows:

ST. LOUIS – December 27, 2007 — Solutia Inc. today announced that its Flexsys subsidiary will soon be filing a petition for rehearing by all of the judges of the Court of Appeals for the Federal Circuit (CAFC). This matter involves Flexsys’ ongoing patent infringement dispute with Sinorgchem regarding process technology for the manufacture of 4-ADPA and its PPD derivatives.  In July 2006, the International Trade Commission (ITC) ruled in favor of Flexsys. Last week, a three-judge panel of the CAFC ruled 2-1 that Sinorgchem had not literally infringed Flexsys’ patents, and remanded the case to the ITC to determine whether Sinorgchem had infringed under the doctrine of equivalents.

“We will be moving quickly to file a petition for rehearing,” said Tim Wessel, vice president, Antidegradants and Crystex®. “Importantly, the ITC exclusion order that prohibits Sinorgchem’s importation of 4-ADPA and 6PPD into the United States remains in full effect.  We agree with the strongly worded dissent that the ITC decision should be upheld.”

Notably, a patent infringement action against Sinorgchem Co. and South Korean tire maker Korea Kumho Petrochemical Company is also pending before the U.S. District Court (N.D. Ohio) and will likely follow the ITC case when litigation relating to Sinorgchem’s appeal of the ITC ruling is completed.

JW Note:  It appears likely that the petition for rehearing en banc (full bench) by Flexsys will be granted, particularly in view of Judge Newman’s compelling dissent in the panel opinion.  From a practitioner’s standpoint, the outcome of this matter should be very interesting indeed. 

The New Public PAIR – Now With ReCAPTCHA!

Posted in General Commentary by Jake Ward on January 4, 2008

If you’ve recently had an opportunity to use Public PAIR (the Patent Office’s Patent Application Information Retrieval system that displays information regarding patent application status), you may have noticed that the site is now secured with an “image or audio challenge” that one must overcome to obtain access to the system.   (Example below).

 ReCAPTCHA

The security system that the Patent Office is employing is called ReCAPTCHA.  ReCAPTCHA is a creator-recommended implementation of the CAPTCHA test, a challenge-response test used in computing to determine whether a user is human.  The term “CAPTCHA” is a contrived acronym for “Completely Automated Public Turing test to tell Computers and Humans Apart”.  A trademark application for the mark was filed by Carnegie Mellon University and has been allowed.  Current computers are unable to solve a CAPTCHA test.  Any user entering a correct solution to the test is presumed to be human.  Accordingly, the CAPTCHA test severely limits access to the Public PAIR data by other computer systems and programs.

The Public PAIR system had been plagued with intermittent connectivity problems due to data mining, and ReCAPTCHA apparently is the Patent Office’s attempt to remedy these problems.  We can personally attest to instances where public PAIR was unavailable for considerable lengths of time (although Private PAIR access never appeared to be affected). 

Notably, the Patent Office also is leaving the door open to denying access for any future, unforseen activities (manual or automatic) that may also affect connectivity.  (See the below excerpt from the Patent Electronic Business Center portal). 

PAIR USAGE POLICY

To maintain general availability of USPTO information and services provided on the Internet, any activities or operations that cause a denial or diminution (decrease) of services to other customers, whether generated automatically or manually, may result in the Office’s denying access to the Office Internet resources to the offender.

Contact the Patent Electronic Business Center (EBC) with any questions or concerns about this policy. The Patent EBC is a complete customer service center that supports all Patent e-business products and service applications, and can be reached at 571-272-4100 or toll-free at 866-217-9197 between the hours of 6 am and 12 midnight Monday through Friday ET, or by e-mail to ebc@uspto.gov.

Although we are hopeful that the ReCAPTCHA security will reduce the instances in which Public PAIR is unavailable, one has to wonder if the public will be negatively affected by a loss of information that was being provided via data mining services?  Has this security upgrade positively or negatively affected any of our readers?  Your thoughts are welcomed.