{"id":132,"date":"2006-09-21T11:59:01","date_gmt":"2006-09-21T15:59:01","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/shlep\/2006\/09\/21\/no-special-rules-for-pro-se-patentees\/"},"modified":"2006-11-19T03:19:50","modified_gmt":"2006-11-19T07:19:50","slug":"no-special-rules-for-pro-se-patentees","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/shlep\/2006\/09\/21\/no-special-rules-for-pro-se-patentees\/","title":{"rendered":"no special rules for pro se patentees"},"content":{"rendered":"

[in pre-launch<\/em> status, as we <\/font>search for a shlep<\/em> team<\/font><\/a>\u00a0— can you contribute?]\u00a0\u00a0<\/font><\/p>\n

David Crouch<\/a> at Patently-O<\/em> reported<\/strong><\/a> yesterday (Sept. 20, 2006) on the recent\u00a0decision in Kim v. Conagra Foods<\/em><\/a> (Fed. Cir, No, 15-1414, 2006).\u00a0\u00a0Crouch notes “Here\u2019s another case where technicalities of the patent system apparently trapped an unsuspecting patentee,”\u00a0and quotes the federal appellate court:<\/font><\/p>\n

\u201c[W]e reject Kim\u2019s position that she should be treated differently from other patentees because she was pro se<\/em> during some parts of the prosecution.\u201d <\/font><\/p><\/blockquote>\n

Yoon Ja Kim had applied pro se<\/em> and received a patent on a combination of ascorbic acid and food acid that could serve the purpose of potassium bromate (a feared carcinogenic) in bread-making.\u00a0\u00a0 She sued ConAgra, asserting that \u201cHealthy Choice\u201d brand breads infringed on\u00a0her patent. \u00a0Although it was not defined in the specification,\u00a0the appellate court\u00a0found the preamble term \u201cpotassium bromate replacer<\/em>\u201d used in her claim to be\u00a0limiting\u00a0to the extent that any infringing composition must \u201cperform essentially the same function in the production of that bread as would potassium bromate.\u201d\u00a0\u00a0 Apparently, a more astute patentee (or attorney therefor)\u00a0might\u00a0have described or defined the patent composition in a manner that did not have the limitation found by the court.\u00a0\u00a0 The dissenting judge said Kim was acting as “her own lexicographer” in defining the term \u201cpotassium bromate replacer<\/em>\u201d and the court should not have included the functional limitation.<\/font><\/p>\n

\"BakerOK\"\u00a0 Your shlep<\/em> editor has no patent law expertise and does not have an opinion on whether Conagra infringed upon Kim’s patent.\u00a0 The appellate court was certainly correct, however, that there shouldn’t be a different standard when deciding\u00a0limitations on a patent\u00a0(or the “surrender” issue presented in this case) merely because the patentee had appeared pro se<\/em> in the process of obtaining the patent.<\/font>\u00a0The public shouldn’t have to be worried that a patent might be\u00a0infringed more easily merely because a pro se<\/em> patentee will be given more leeway and protection. \u00a0<\/div>\n

Perhaps longtime patent lawyer Crouch could offer a professorially-objective\u00a0opinion, however, on whether\u00a0a typical lawyer handling Kim’s patent application and reissue would have been likely to avoid the limitation that scuttled her case.\u00a0 Also, would self-help material like David Pressman’s Patent It Yourself<\/strong><\/a><\/em>\u00a0have guided a reasonably diligent and competent patent applicant through the maze successfully?\u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"

[in pre-launch status, as we search for a shlep team\u00a0— can you contribute?]\u00a0\u00a0 David Crouch at Patently-O reported yesterday (Sept. 20, 2006) on the recent\u00a0decision in Kim v. Conagra Foods (Fed. Cir, No, 15-1414, 2006).\u00a0\u00a0Crouch notes “Here\u2019s another case where technicalities of the patent system apparently trapped an unsuspecting patentee,”\u00a0and quotes the federal appellate court: […]<\/p>\n","protected":false},"author":437,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[991],"tags":[],"class_list":["post-132","post","type-post","status-publish","format-standard","hentry","category-news-items"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/132","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/users\/437"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/comments?post=132"}],"version-history":[{"count":0,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/posts\/132\/revisions"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/media?parent=132"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/categories?post=132"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/shlep\/wp-json\/wp\/v2\/tags?post=132"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}