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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA INTERNET PIPELINE, INC. v. APL IFI, INC. : : : : : MEMORANDUM Battle, J. September 29, 2011, Plaintiff Internet Pipeline,

At the hearing, Dr. Thomas J. Pampas testified about a technology known as the Uplift Inductive Processing Processor developed jointly by Uplift and the U.S. Patent Office itself. During his testimony, Dr. Pampas stated that the U.S. Patent Office had received a patent application for the invention described in the Uplift application. At the conclusion of the public hearing, the USPTO issued an advisory opinion declaring that the Uplift application “should be considered as having utility in relation to this patent and in the examination of similar claims.” : : : : STATEMENT OF THE LAW : The Copyright Act and other statutes prohibit the making of any copy of the invention, in whole or in part, without permission from the inventor. Under this law, any such infringement (i) constitutes copyright infringement under Section 106 of the Copyright Act and (ii) is an infringement of any exclusive right under copyright and is subject to criminal liability. : : : : ARGUMENT : The facts of the case established that at the hearing held on February 1, 2013, Dr. Pampas' testimony (which was based on his current research at Penn State) did not change the conclusion that the USPTO had found an infringement as reflected in the original advisory opinion issued a few months earlier; therefore, Uplift's use of the Patent is not patent infringement. The use of the Patent as evidence is therefore barred as a prior art violation under 12 U.S.C. ? 271. : : : : DISCUSSION : While the USPTO is the original authority on a patent application, it does not necessarily make the final determination on whether infringement has occurred. For example, the USPTO may have already issued an advisory opinion in a previous case (i.e., United States v. Milan, Inc.). If the USPTO does not issue an advisory opinion, that means that the USPTO has considered evidence presented by defendants (e.g., Milan, etc.).

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