Updates on IP news from our global team!

On October 1, 2024, the U.S. Patent and Trademark Office announced a brief extension and then termination on December 15, 2024, of the After Final Consideration Pilot Program 2.0 (“AFCP 2.0”). In response to proposed new fees for participation in the AFCP 2.0, feedback from the public revealed an unwillingness to pay for the program. Stated differently, the program’s benefit was not seen as being worth the added cost of participation. The AFCP 2.0 has been extended to December 14, 2024, to provide program users with reasonable time to adjust to the upcoming termination. The full official Notice published in the Federal Register may be viewed here.

Photo credit: Ballon-vasque @AugustinProbst

It all began in 1993 with the dream of two 25-year-old entrepreneurs and friends, Jérôme Giacomoni and Matthieu Gobbi, to bring a tethered balloon back to the Tuileries in Paris—specifically to the very spot where its predecessor was showcased at the 1878 Universal Exhibition by the French airship inventor Henri Giffard (1825 - 1882). Thirty years later, that dream became a reality with the tethered balloon being the centerpiece of the Paris 2024 Olympic Games.



AEROPHILE has been a client of OBWB for over ten years, and Mathieu Gobbi has graciously agreed to share more about their incredible journey.

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In Hachette Book Group, Inc. et al.  v. Internet Archive [1], the Second Circuit concluded that it is not “fair use” for a nonprofit organization to scan copyright-protected print books in their entirety, and distribute those digital copies online, in full, for free, subject to a one-to-one owned-to-loaned ratio between its print copies and the digital copies it makes available at any given time, all without authorization from the copyright-holding publishers or authors.

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Many patent applicants have received an obviousness-type double patenting (ODP) rejection at some time. For example, the U.S. patent examiner may reject the pending claims for being “patentably indistinct” from other claims already found in an issued patent owned by the same applicant.  The examiner issues this ODP rejection even though the earlier-issued patent is not valid prior art for a regular obviousness analysis. However, the examiner further notes that there is still hope to gain allowance of the claims. The ODP rejection is typically followed by a statement that it will be withdrawn if the patent applicant files a terminal disclaimer with payment of the corresponding USPTO fee. While this offer sounds advantageous to the applicant, the final price for this patent will be paid in terms of shortened patent term several years later. While this story describes the traditional process of overcoming ODP rejections, a recent court decision, Allergan USA, Inc. v. MSN Laboratories Private Ltd., provides clarity for which circumstances would invoke the ODP doctrine.

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The Court of Appeals of the Federal Circuit (CAFC) recently issued an en banc ruling regarding design patent obviousness in LKQ Corp. v. GM Global Tech. Operations LLC, its first en banc ruling in six years and only the second related to design patents (the first being Egyptian Goddess, Inc. v. Swisa Inc.). A previous OBWB newsletter article presented details of the LKQ case. The LKQ decision established that the “Rosen-Durling” test, the standard assessment of obviousness in design patents since 1996, was “improperly rigid” and contradicted the precedent set by the Supreme Court in well-known cases such as Smith v. Whiman Saddle Co., Graham v. John Deere Co., and KSR International Co. v. Teleflex Inc.. Instead of the Rosen-Durling test, the CAFC indicated that the obvious or non-obviousness of design patents should be considered based on the familiar Graham factors, as is currently done for utility patents.

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Our OBWB team looks forward to participating in AIPPI's 2024 World Congress!

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