Posts Tagged: "patent"

This year, Germany shot to the top of Bloomberg’s rankings for the most innovative nation worldwide, breaking South Korea’s six-year winning streak. Germany is a thriving European center for innovation where patent activity, high-tech density, and value-added manufacturing are on the rise. The country is particularly renowned for its modern car technology. It has designed award-winning high-speed roadways, digitally networked mobility, and some of the most advanced driverless vehicles. In fact, German patents for driverless cars have doubled in the last five years, and its top three patent areas in 2017 were Transport (11,000+ patents), Electrical Machinery (7,000+ patents), and Mechanical Elements (6,000+ patents). If you wish to join the trend and patent your innovation in Germany, here is a walk-through of the German patent application process.

Several weeks ago, the Antitrust Division of the U.S. Department of Justice announced a positive Business Review Letter (BRL) concluding an eight-month review of Avanci’s new platform for licensing 5G standard essential patents. “In sum, the proposed 5G Platform has the potential to yield efficiencies by reducing transaction costs and streamlining licensing for connected vehicles,” wrote Assistant Attorney General Makan Delrahim, who heads the DOJ Antitrust Division. “Together these efficiencies may allow cellular standards-essential patent owners and vehicle manufacturers to focus resources elsewhere, such as investment in further research and development in emerging 5G technologies and applications. This possibility could enhance competition in these technologies, improve safety, and benefit American consumers.” The finding that the Avanci 5G platform could enhance competition is critically important for Avanci, and positively affects the technology licensing landscape.

With its recent opinion in AAM, Inc. v. Neapco Holdings, LLC, No. 18-1763 (Fed. Cir. July 31, 2020), and a 6-6 stalemate by the court’s active judges on whether to take the case en banc, the Federal Circuit has now adopted—under the rubric of 35 U.S.C. §101—a formalized set of enablement-like requirements for patent claims. For a simple “threshold” eligibility test, section 101 has grown remarkably complex. Indeed, since the Supreme Court’s 2012 Mayo and 2014 Alice decisions re-cast patent eligibility into a “two-step framework,” the Section 101 test adjudges not just subject-matter eligibility and the three “limited” exceptions thereto, but also patentability or “inventive-concept” challenges predicated on comparisons to the prior art, see 35 U.S.C. §§ 102-103. And now the enablement-type requirements imposed by AAM v. Neapco.

Even patent litigants take vacations (or staycations, this year). Whether it’s because it’s August and the temperatures were topping 90 degrees in the District, or because lawyers were busy juggling the start of the grand remote learning experiment as the school year started, patent filings were at their lowest in months—with just 39 new district court complaints (a number itself propped up by a slew of new WSOU complaints, adding HP Inc. and HPE to the ever-growing party) and 28 new Patent Trial and Appeal Board (PTAB) filings, a number of which were filed by drone company DJI against a tranche of IBM-originating patents.

Section 156 of the Hatch-Waxman Act provides for restoring some of a patent’s term consumed during clinical testing and Food and Drug Administration (FDA) review of a New Drug Application (NDA) for a product covered by the patent. The extension afforded under Section 156 is of great importance to a drug manufacturer given that development of a new drug from discovery through FDA approval often takes a decade or more (10-15 years), leading to the loss of a significant portion of the term of a patent covering the drug. The dispute in Biogen International Gmbh v. Banner Life Sciences LLC, No. 2020-1373 (Fed. Cir. April 21, 2020) (Biogen v. Banner) centers around the very meaning of the term “product” as used in Section 156.

On August 13, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the U.S. District Court for the Northern District of Illinois in Kahn v. Hemisphere Inc, holding that “the district court did not abuse its discretion in dismissing the action, granting the defendants’ sanctions motion, denying the Khans’ sanctions motion, or denying Merit Medical’s motion for attorney fees under § 285.” Drs. Nazir Khan and Iftikhar Khan filed an action against Hemosphere Inc., CryoLife Inc., and Merit Medical Systems, Inc., and over 300 hospitals and individual physicians, for infringing a claim of U.S. Patent No. 8,747,344, which was directed to an arteriovenous shunt, by “manufacturing or implanting into patients the accused HeRO® Graft shunt.” The Khans sent a waiver of service of summons form and a copy of the complaint to the over 300 defendants, but only three returned a completed waiver form. The district court dismissed without prejudice the Kahns’ claims against Merit Medical, CryoLife, and three physicians  for  improper  venue because “the Khans had not contended that any of these defendants resided in the Northern District of Illinois, and the Khans had failed to plausibly allege that any of them infringed the asserted claim in the district and had a ‘regular and established place of business’ in the district.”

Why are the tech companies so in love with China? Are they are begging for China to steal their intellectual property? Sometimes it feels that way. The Wall Street Journal is reporting that U.S. companies that see their fortunes tied to China are raising concerns with the White House over a Trump Administration Executive Order that would ban WeChat from the United States. U.S. companies, including Apple, Ford, Walmart, Walt Disney, Procter & Gamble and Intel “are concerned the administration’s action could effectively cut them off from access to the lucrative China market, for example by ending their ability to accept payments or advertise on WeChat.”

By now, everyone in the IP arena has heard about the demands of more than 30 state and territorial attorneys general (AGs) regarding the promising COVID treatment remdesivir. These AGs seem to disrespect the exclusive rights of limited duration that patents afford. California Attorney General Xavier Becerra (D) and Louisiana Attorney General Jeff Landry (R) led a bipartisan effort getting colleagues to write the U.S. Department of Health and Human Services and call for what’s tantamount to eminent domain on intellectual property. To a conservative who works on IP matters, this demand in and of itself is troubling. Bedrock conservative principles include property rights, free enterprise and the rule of law. The AGs advocate government’s abrogation of all three of these foundational principles.

On August 10, The Hudson Institute hosted an online video webinar featuring Matt Ridley, member of the UK’s House of Lords and author of the recent book How Innovation Works (And Why It Flourishes in Freedom). The book explores a series of case studies about innovation across history in order to upend some conventional wisdom and make the argument that major innovations typically arise as a result of a series of contributions from sometimes unconnected individuals rather than top-down legislative frameworks or what Ridley calls “the myth of the heroic single inventor.” Moderating the conversation was Adam Mossoff, Professor of Law at George Mason University Antonin Scalia Law School and Chair of the Forum for Intellectual Property at the Hudson Institute. The conversation was highlighted by an intriguing and well-reasoned critique of Ridley’s book by Mossoff, who challenged some of the book’s statements on intellectual property and patents in particular.

On August 7, Techtronic Industries filed a brief in opposition to The Chamberlain Group’s petition to the U.S. Supreme Court asking for review of “whether the Federal Circuit improperly expanded § 101’s narrow implicit exceptions by failing to properly assess Chamberlain’s claims ‘as a whole.’” Techtronic’s brief asks the Court to deny the petition, and presents the following two questions in the case it is granted: “1) Whether the Federal Circuit, on the particular facts of this case, erred in analyzing the claims as a whole and 2) Whether Chamberlain forfeited and is estopped from making its current arguments about the scope and preemptive effect of its claims in view of its inconsistent arguments below.”

On August 10, Senator Tillis, the Chairman of the Senate Judiciary Committee Subcommittee on Intellectual Property, sent a letter to United States Patent and Trademark Office (USPTO) Director Andrei Iancu encouraging the Office to implement two administrative changes that would help to improve the effectiveness of the U.S. patent system. Noting that the Subcommittee has held a series of hearings on patent eligibility reform “with an eye toward improving the efficiency and effectiveness of U.S. patent law and its administration”, Tillis explained that he remains interested in finding ways to improve the patent system despite the inability of stakeholders to reach a consensus on legislative reforms as a result of the hearings. Tillis referred to a paper on patent reform by Stanford University professors Lisa Larrimore Ouellette and Heidi Williams that outlined three specific reforms to the U.S. patent system.

The 2012 Supreme Court decision in Mayo Collaborative Servs. v. Prometheus Labs changed the landscape for patenting diagnostic inventions in the United States. Patent eligibility/ineligibility in the United States stems from two sources: (1) 35 U.S.C. § 101, and (2) judicially-created exclusions, including laws of nature, natural phenomena, abstract ideas, and mental processes. In Mayo, the Supreme Court struck down method of treatment claims for being directed to a law of nature. While Mayo did not create this exclusion, it significantly expanded its applicability to diagnostic-based inventions. This paper explores Federal Circuit case law on patent eligibility of diagnostic-based inventions since the Mayo decision, as well as provides practical guidance on drafting diagnostic patent claims in light of these decisions.

This week, the district courts saw 77 new complaints—though at least 10 are re-filings of Uniloc v. Google cases being transferred from the Eastern District of Texas to the Northern District of California by stipulation, somewhat inflating the numbers, leaving us with a relatively low filing rate of 66 bona fide new complaints this week. The Patent Trial and Appeal Board (PTAB), for its part, saw 36 filings, driven up in part by a half-dozen petitions from LEGO® and Warner Bros. against assertion vehicle MQ Gaming, LLC.

In an August 3, 2020 modified opinion, the U.S. Court of Appeals for the Federal Circuit held certain claims directed to a method of preparation to be patent-eligible at Alice Step 1. The case is Illumina Inc. v. Ariosa Diagnostics Inc., 2019-1419 (Fed. Cir. 2020), and IP Watchdog has already published a more-detailed write-up on the modified opinion that can be found here. I write separately to highlight an interesting quote from the modified opinion that may have currency, not just in biotechnology, but also in computer technology and other arts.

The U.S. Court of Appeals for the Ninth Circuit today vacated a decision of the U.S. District Court for the Northern District of California finding that Qualcomm had engaged in unlawful licensing practices and reversed a permanent, worldwide injunction against several of Qualcomm’s core business practices. In May 2019, Judge Lucy Koh issued a 233-page order finding that Qualcomm had engaged in unlawful licensing practices and ordered in part that Qualcomm “must make exhaustive SEP licenses available to modem-chip suppliers on fair, reasonable, and non-discriminatory (“FRAND”) terms and to submit, as necessary, to arbitral or judicial dispute resolution to determine such terms…[and] submit to compliance and monitoring procedures for a period of seven (7) years.” Koh’s ruling was widely criticized, and today’s unanimous opinion was a total reversal of her findings.