On July 31, Trading Technologies, a firm that develops software used for electronically trading derivatives, filed a combined petition for panel rehearing and rehearing en banc at the U.S. Court of Appeals for the Federal Circuit. The appellant is seeking review of the Federal Circuit’s earlier decision this May in Trading Technologies International v. IBG LLC (IBG IV), which confirmed the results of four covered business method (CBM) review proceedings at the Patent Trial and Appeal Board (PTAB) that invalidated patent claims owned by Trading Technologies as unpatentable under Section 101 of the patent law. In doing so, Trading Technologies argues that the Federal Circuit panel failed to follow both U.S. Supreme Court and Federal Circuit precedent, as well as previous Federal Circuit decisions upholding the validity of other Trading Technologies patents that share a specification with one of the invalidated patents.
JTEKT Corp. v. GKN Automotive Ltd., No. 2017-1828 (Fed. Cir. 2018) raises the important question of whether the Court of Appeals for the Federal Circuit can refuse to hear an appeal by a non-defendant petitioner from an adverse final written decision in an inter partes review (“IPR”) proceeding, on the basis of a lack of a patent-inflicted injury-in-fact, when Congress has statutorily created the right for “dissatisfied” parties to appeal to the Federal Circuit.
On August 1st, the non-profit inventor advocacy group US Inventor filed an amicus brief with the Court of Appeals for the Federal Circuit asking the court to grant a petition for en banc rehearing in American Vehicular Sciences LLC v. Unified Patents Inc. The case, which stems from the Patent Trial and Appeal Board (PTAB), involves issues regarding obviousness which US Inventor argues that the Federal Circuit should resolve through the en banc rehearing of this case… This uncertainty in determining the validity of an invention disincentivizes small inventors from taking risks and experimenting to create an invention at a time when the United States is facing an innovation crisis. US Inventor notes that China has been outpacing the U.S. in terms of startup funding for artificial intelligence developers and that patent applications filed in China has been outpacing U.S. patent applications at a rate of about 2-to-1.
At the time, many thought this change in law would significantly assist patentees in avoiding full-blown cancellation of their claims. However, our review suggests a case-by-case analysis without overwhelming success on a motion to amend… Although the industry expected Aqua Products to cause a sea change for motions to amend, there has been little, if any, substantive effect. Since Aqua Products, the Board has considered the opinion’s impact in 92 cases, referring to the memorandum guidance in 38. Of those 92 cases, the Board has rendered decisions in 43 cases, denying 32 motions to amend, granting in whole or in part 7 motions, and denying as moot 4 motions.
On Friday, June 15th, the Court of Appeals for the Federal Circuit denied a petition for panel rehearing and rehearing en banc in Xitronix Corporation v. KLA-Tencor Corporation. The petition for rehearing was filed by KLA-Tencor after the Federal Circuit first decided Xitronix back in February of this year, where the appellate court held that it didn’t have jurisdiction to hear an appeal in a patent case which only involved claims of monopolization under U.S. Supreme Court standards set in 1965’s Walker Process Equipment v. Food Machinery & Chemical Corp.