Idea To Millions Blog

USPTO Sued Over Discretionary Denials

Thu, 03 Sep 2020 05:52:14 GMT

APA Action & Mandamus Simultaneously Pursued Against PTAB’s NHK/Fintiv Framework

Back in June, I predicted that an APA action against the USPTO and/or a mandamus petition to the Federal Circuit was inevitable given the PTAB’s practice of denying IPR petitions in favor of competing district court trial dates. Yesterday, Director Iancu was sued by a group of large tech companies for allegedly violating the APA by denying IPR petitions on the basis of a competing trial date, and late last week, one of the same companies also filed a mandamus petition seeking to force the agency to consider the merits of a petition denied as a matter of discretion.

Never a dull moment at the PTAB.

As these filings make their way through the system, in parallel, a rumored rule package seeking to codify the NHK/Fintiv framework has been ensnared by the Office of Information & Regulatory Affairs (OIRA) for further scrutiny. Seems these developments will almost certainly grind that review process to a halt. With Director Iancu likely moving on from the agency regardless of the lection results, whether these challenges are successful or not, the next Director could presumably come in and undo them anyway.

First, the mandamus petition (here), which may be the first to the finish line. The petition argues that:

In setting the one-year deadline for infringement defendants to seek IPR, Congress chose to work forward from the service of the complaint. 35 U.S.C. § 315(b). The NHK/Fintiv rule, by contrast, works backward from a purely tentative trial date. In contravening the statute’s text in this way, the PTAB has transformed a safe harbor with known and stable boundaries into an unpredictable, de facto time bar triggered by forces outside the petitioner’s control. . . . Even more troublingly, the NHK/Fintiv rule effectively cuts short the one-year petition period Congress believed was vital. In some judicial districts—particularly the “rocket dockets” popular with patent assertion entities (“PAEs”)—trial dates are set for such an early date that, once a complaint is filed, it is already too late to avoid non-institution on NHK/Fintiv grounds. At best, the rule forces defendants to file petitions immediately upon being sued—well before the plaintiffs have identified, much less narrowed, their infringement contentions and before defendants can properly vet the asserted claims.

Not only does the NHK/Fintiv rule conflict with the substantive provisions of the AIA, but the agency also lacked the authority to promulgate the rule in the way it did. While the agency declared its new rule via Board opinions—later designated precedential by the Director—that course is forbidden by two separate statutes: First, the AIA provides that if the agency wishes to establish new standards governing institution, it must do so via a “regulation” issued by the Director—i.e., via notice-and-comment rulemaking. Second, the APA independently requires agencies to use notice-and-comment rulemaking if they wish to announce broadly applicable, prospective rules.

The APA action, argues similar points:

Count 1: The NHK-Fintiv rule is final agency action “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right” because it violates the AIA and the Director exceeded his statutory authority in adopting it.

Count 2: The NHK-Fintiv rule is final agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Count 3: The NHK-Fintiv rule is final agency action undertaken “without observance of procedure required by law.”

In essence the APA complaint argues that Congress provided litigation controls in the statute, and the agency cannot rewrite them (Count 1); the factors have resulted in inconsistent results (Count 2); and even if the first two counts can be ignored, the agency can only make such rules through traditional notice and comment rulemaking.

As noted above, the agency is in the midst of trying to belatedly address Count 3. I don’t expect that process to continue, and even if it did, certainly not in time to get the rules to final form before current Director moves on (just my speculation based on customary turnover). Moreover, given these now established discretionary practices, one is left wondering whether public comments would fall on deaf ears in any case.

Get your popcorn ready, plenty to watch in the weeks ahead.

Ropes & Gray LLP - Scott A. McKeown

Do You Have a Creative Idea and Not Sure Where To Turn Next?!

Tue, 11 Aug 2020 13:17:55 GMT

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What Happened to “The Wonderful Wizard of Oz” On This Day in 1900?

Sat, 01 Aug 2020 12:00:00 GMT

The novel "The Wonderful Wizard of Oz” was copyright registered today

Did you know the great American Children's novel “The Wonderful Wizard of Oz” by L. Frank Baum was copyright registered on this day in the year 1900?

Do you like to find out more about registering your own trademark, patent, and more without paying a lawyer for your own product, brand, or service?

Please Visit Idea To Million and become one of Brian Zheng’s students for one of his various ITM programs.

What Happened To Monopoly On This Day?!

Thu, 30 Jul 2020 12:57:42 GMT

Monopoly board game was copyright registered on this day

Did You Know: On this day in 1933 the Monopoly board game was copyright registered, and Carles Darrow, the inventor, became the first millionaire game designer after he sold his patent to Parker Brothers?

If you would like to find out more about registering your own trademark, patent, and more without paying a lawyer for your own product, brand, or service, please visit Idea To Millions and become one of Brian Zheng’s students for one of his various ITM programs.

Hurry, these spots are VERY LIMITED and there is a waiting list for some programs.

How Does Idea To Millions 360 for Inventors Work?

Sun, 26 Jul 2020 11:23:12 GMT

Idea To Millions 360 is the 7 Week System For Creative Inventors From Brian Zheng.

How Does 360 Work?

360 is an easy 7-week online coaching system full of videos and written information. All you need to do is log in to the 360 site to start learning and be a master of invention and business!

Why Does Idea To Millions 360 for Inventors Exist?

Wed, 22 Jul 2020 12:56:11 GMT

Idea To Millions 360 is the 7 Week System For Creative Inventors From Brian Zheng

Why Does 360 Exist?

We created 360 because we wanted to create (in Brian words): "An opportunity to share our know-how, shortcuts, and fast tracks". 360 is the online inventor's master program where known inventive leaders come to learn how to make multi-millions from their inventions and innovations.

“I Can Register a Patent for Under $2,000 Without Paying a Lawyer?!”

Mon, 20 Jul 2020 12:58:20 GMT

You Can Register a Patent for Under $2,000 Without Paying a Lawyer

Yes, you can. I can teach you how to register for your own patent without going through a lawyer and paying thousands of dollars for each one you decide to file.

Find out more in one of my many Idea To Millions programs who have helped various students achieve their goals and dreams of becoming a success without making the same mistakes I did throughout my career.

6 Things Inside The ITM Octagon Week 1 for Entrepreneurs

Sat, 18 Jul 2020 13:53:57 GMT

6 Things Inside The ITM Octagon Week 1 for Entrepreneurs

1) Attitude Vs. Mindset

Before you can be a successful entrepreneur, you need to properly develop the correct attitude and mindset, as well as know the difference between the two. This section will help you to define your own attitude and mindset for success.

2) Innovation, Entrepreneur

This section will help you to understand how innovation (the process of taking something that already exists) and entrepreneurship go hand in hand. To be a successful entrepreneur, you have to be an innovative entrepreneur.

3) Types of Entrepreneurs. Entrepreneur is not simply a blanket term! There are many different types of entrepreneurs with many different skills and niches. Learn about the most common types within the Octagon.

4) Mad Enough To Be An Entrepreneur?

We're taught from a young age that to be successful means to get a good job. So does that mean if we wish to be entrepreneurs we're crazy? No, it doesn't! And Octagon can explain why.

5) Youngster Entrepreneurs

Another myth about entrepreneurship is that you have to be an adult to succeed as one. This section takes a deep dive into entrepreneurs that started their businesses at a young age.

6) Social Media Entrepreneurs

Probably the most common type of entrepreneur in this modern landscape, social media entrepreneurs are changing the way we buy things and changing the way people do business.

Watch the Idea To Millions Visions: Octagon Webinar for FREE!

Going All In When Creating Your Product

brian@azooca.com (Brian Zheng) — Wed, 17 Jun 2020 16:04:27 GMT

“How do you make the conceptions from your inventions ?

There’s a lot of designing, modeling, engineering, and concept modifications throughout the process.

In my Idea To Millions course, I have a really big mindset about how to get a concept, an invention, and prototyping to work out.

Prototyping has so many purposes.

But for the conceptual product use cardboard, soft drink bottles, whatever...build them!

Use duct tape and an exacto knife to build your conceptual prototype .

No need to be fancy!

When you go to the factory to make prototypes, you can negotiate with the factory to build the prototype for free.”

Curious on how you can get your prototype built for free overseas or even domestically?

Want to dive deeper into the idea of making your conception into a prototype?

Take a look at what Idea To Millions has to offer!

Get the solution you need by utilizing the experience and knowledge that Brian has gathered over the last 30 years.

Whether it’s through weekly Zoominars, Youtube videos, e-books, or courses Idea To Millions has the resources you need to be a successful inventor and entrepreneur.

FREE INVENTORS KIT AVAILABLE NOW!

I Started A Company With ONLY $2,000!

brian@azooca.com (Brian Zheng) — Wed, 03 Jun 2020 16:54:26 GMT

“I actually utilized approximately $2,000 to start up my business.

I ordered some fabric, I ordered some loops, and I put them together.

I went to Downtown LA to work with a sweatshop near ChinaTown to make my first production run in the US.

Later on I did have to utilize the friendships and relationships my parents had to locate the factory in China.

I asked them to manufacture one container of my Automotive Sunshades in the beginning.

There’s a large advantage of having my friends and family to build up my business.

There’s no shame in taking advantage or asking for a favor. That’s what business is about!”

30 year inventor and entrepreneur, Brian Zheng started his business with only $2,000 when he created and produced the Automotive Sunshade.

Thanks to the relationships and friendships he had within his family, he was able to make the idea for his product into a reality.

Brian recalls being later on payments during the early days of production, but that was due to issues being had on the corporate end.

Essentially the small amount of money that Brian invested into his idea , turned into multi-millions!

How much money are you hoping to put into your new idea?

JOIN EXCELERATOR TODAY TO LEARN MORE!

Cover Your Ass

Fri, 24 Apr 2020 19:38:47 GMT

“37 lawsuits cost me $7 million dollars altogether…you need to use the legal system to protect your own innovations.

If you guys want to start being an entrepreneur, do me a favor and buy some goddamn insurance to cover your ass first.

We’re lucky enough to have very sophisticated, well built legal system to protect our intellectual property in this country and in this marketplace.”

At one point, Brian Zheng dealt with the consequences of having a lot of success with his business and innovations. For 2 years and 7 months, he dealt with a lawsuit that claimed that his product had damaged the eye of a consumer and they were suing him for $4.2 million dollars.

Thanks to his insurance company he was covered, but luckily enough they found out that this person was posing fraudulent claims the entire time.

It goes to show that the more money you make, the more people want to go after you.

Were you ever sued due to a legitimate or fraudulent claim?

Enter the Gateway Workshop

Wed, 22 Apr 2020 17:53:05 GMT

The exclusive and limited Gateway Workshop is the new LIVE seminar series where I will talk on having the right mindset in business to take your invention, entrepreneurship and business Idea To Millions!

Our first seminar takes place this Friday, April 24th from 5 - 6 p.m. PST. Come and join me!

Confidence In Your Inventions and Innovations

Wed, 15 Apr 2020 19:19:18 GMT

“You know what? Some people think there’s a fine line between being overly confident and being stupid.

So what?

A lot of things that start with stupid concepts sometimes drive the most awesome ideas .

Have you ever had an idea that you just wanted to run with but were not sure where to start?

I have had hundreds, if not, thousands of ideas I was unsure of where to start from.

Start with your great idea at Idea To Millions and one of the in-depth programs I will teach to you.”

-Brian Zheng, 30 Year Inventor and Entrepreneur

OEM + ODM Productions - Live Seminar 4 With Brian Zheng

Wed, 08 Apr 2020 19:36:03 GMT

During this week's live seminar, Brian Zheng spoke about the importance of OEMs & ODMs when manufacturing a new product.

Prototypes - Seminar 3 With Brian Zheng

Wed, 01 Apr 2020 19:30:55 GMT

This week during his live seminar, Brian Zheng discusses the ins and outs of prototyping!

Entrepreneur - Live Seminar 1 With Brian Zheng

Wed, 18 Mar 2020 20:15:06 GMT

This week Brian talks about being an Entrepreneur in his first FREE Weekly Live Seminars on Youtube!

Don't forget to 'SUBSCRIBE' to the Idea To Millions Youtube Channel so you can watch his live seminars each and every week.