Posts Tagged: "patent"

On July 14, the United States Court of Appeals for the Federal Circuit, with Judge Lourie writing for the majority, affirmed-in-part and vacated-in-part a decision of the United States District Court for the Eastern District of Texas in Packet Intelligence, LLC v. NetScout Systems, Inc. The CAFC affirmed the district court’s judgments on the issues of infringement, invalidity, and willfulness, but reversed with respect to pre-suit damages. Judge Reyna wrote separately, dissenting on the issue of patent eligibility under Section 101.

A strategy for the COVID-19 pandemic is testing for antibodies to determine possible immunity. Such diagnostic tests may suffer from a high false positive rate. Improving accuracy is therefore desirable. However, the U.S. Patent and Trademark Office (USPTO) is generally not receptive to diagnostic claims that improve accuracy. The recent case of CardioNet v. Infobionic, makes patenting more accurate diagnostics easier. CardioNet considered whether a more accurate cardiac monitoring device was eligible. Claim 1 recites a device that detects abnormal heart rhythms (atrial fibrillation or atrial flutter) in a patient. The district court held that the claims were directed to an abstract idea of identifying atrial fibrillation or atrial flutter “by looking at the variability in time between heartbeats and taking into account ventricular beats.” The Federal Circuit reversed and held an improved cardiac monitoring device was not an abstract idea.

On July 13, the European Patent Office (EPO) published a landscaping study titled “Patents and additive manufacturing: Trends in 3D printing technologies”. The study highlighted current trends and identified industry leaders in additive manufacturing (AM), i.e. 3D printing. It noted that between 2015 and 2018 the number of AM patent applications increased at an average annual rate of 36%, with more than 4,000 AM patent applications filed in 2018 alone.

On June 30, New Vision Gaming & Development filed a corrected appellant brief with the U.S. Court of Appeals for the Federal Circuit challenging two covered business method (CBM) reviews conducted at the Patent Trial and Appeal Board (PTAB) which canceled all claims of New Vision’s patents covering a gaming invention. Among other things, New Vision argues that the PTAB is constitutionally flawed, that its structure creates financial incentives for administrative patent judges (APJs) to grant validity reviews in a way that destroys due process for patent owners, and that the PTAB’s APJs have neither the judicial independence nor the oversight of Article III courts necessary to address the impermissible appearance of bias at that tribunal.

It was a banner week in the district courts, with 110 new filings, and the filings are showing signs of picking up—rather than slowing down—amidst the COVID pandemic.  Most of that, however, was driven by vape company Juul Labs, Inc.’s filing of some 39 new district court complaints.  An average 28 PTAB cases filed, all inter partes reviews this week, included the usual suspects—parties filing against the sprawling Neodron, Soundview, and Solas OLED campaigns, as well as medical device, battery, and streaming service competitor fights.

On July 8, the United States Court of Appeals for the Federal Circuit (CAFC), in Fitbit, Inc. v. Valencell, Inc., vacated a Final Written Decision of the United States Patent Trial and Appeal Board (PTAB) in an appeal from an inter partes review (IPR) of U.S. Patent No. 8,923,941 (the ’941 patent). In particular, the CAFC held that the PTAB erred in failing to consider the patentability of claims 3-5 of the ‘941 patent when determining that the claims were not unpatentable. Thus, the CAFC vacated the PTAB’s decision and remanded for consideration on the merits of patentability.

Two amicus briefs have now been filed in The Chamberlain Group’s bid to the Supreme Court 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.’” Former Federal Circuit Chief Judge Randall Rader has submitted a joint brief with Chargepoint, Inc.—which recently lost its own plea to the High Court to fix Section 101 law—and High 5 Games submitted a separate brief. Both are backing the petition and urging the Court to resolve the uncertainty around U.S. patent eligibility law once and for all, and sooner rather than later.

The doctrine of equivalents allows a patentee to raise a claim of infringement even when each and every element of the patented invention is not identically present in the allegedly infringing product/process. The doctrine is aimed at preventing an infringer from gaining the benefit of a patented invention by making insubstantial changes. Disclosure-dedication doctrine is a bar to the doctrine of equivalents. Under the disclosure-dedication doctrine, when a patentee discloses subject matter but does not claim it, the patentee dedicates the unclaimed subject matter to the public and cannot recapture it through the doctrine of equivalents. The public can then practice the unclaimed subject matter without fear of infringement.Eagle Pharmaceuticals Inc. v. Slayback Pharma LLC, No. 2019-1924 (Fed. Cir. May 8, 2020) (“Eagle Pharm”) is the most recent Federal Circuit case involving this doctrine. In Eagle Pharm, the Federal Circuit considered whether a patentee can avoid dedication on the ground that the disclosure occurred in an embodiment distinct from the claimed invention. The court answered the question in the negative.

This morning, the United States Patent and Trademark Office (USPTO) announced that Secretary of Commerce Wilbur Ross reappointed Commissioner for Patents Drew Hirshfeld for a second five-year term. Commissioner Hirshfeld’s original term was set to expire this month. Hirshfeld began his career with the USPTO in 1994 as a Patent Examiner, became a Supervisory Patent Examiner in 2001, and was promoted in 2008 to Group Director in Technology Center 2100 (Computer Architecture Software and Information Security).

The USPTO’s recent landmark decision (16/524,350) concluding artificial intelligence (AI) cannot be a named patent inventor perhaps sparked fears of super-robots inventing critical technologies that, alas, receive no patent protection. If an AI identifies new, more efficient battery chemicals, will that new battery be unpatentable? If an AI builds chemical compounds that become the next wonder drug, will that drug-maker…

The most dominant, divisive issue in patent law over the last decade—Section101-eligibility and the Supreme Court’s Mayo-Alice framework—appears to have just become more divisive. Indeed, at least part of the reason for the controversy is that, with Mayo-Alice as the governing test, courts as a preliminary matter can decide Section101-eligibility based on considerations of an “inventive concept” and patentability—issues the Court once declared were “not relevant” to the separate eligibility provision of the Patent Act. Be that as it may, the Federal Circuit has recently issued certain decisions indicating that Section 101 now incorporates another vast area of invalidity; viz., the requirements for “enablement” under 35 U.S.C. §112(a). See, e.g., Customedia Technologies, LLC v. Dish Network Corp., 951 F.3d 1359, 1365-66 (Fed. Cir. March 6, 2020). In this article, we examine how this new requirement for Section 101 has emerged, the recent precedent on the issue, and the Patent Act’s requirements that undermine such Section 112(a) considerations for a Section 101-eligibilty test.

On July 9, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed in-part and vacated in-part a decision of the U.S. District Court for the Northern District of California in Uniloc 2017 LLC v. Apple, Inc.  In particular, the CAFC concluded that the district court did not abuse its discretion in denying Uniloc’s requests to seal its own confidential information. However, the CAFC concluded that the district court failed to properly assess whether third-party information, including licensees’ names, addresses and royalty rates, should be sealed.

Along with cat memes, TikTtok videos and electoral manipulation, the Internet is enriching people’s lives with the instant quiz. Whether seeking to gauge one’s resemblance to a Game of Thrones character or satisfaction with an online purchase, the instant online quiz, questionnaire or survey is a powerful mechanism for businesses, governments and nonprofits to learn about potential customers, constituents and supporters. As with anything that can create value, a lawyer’s advice will eventually be sought to learn how to protect the client’s brands and works from appropriation and misuse by third parties. The protectability of a quiz as a species of intellectual property is now before the Southern District of New York in the case of Metabeauty, Inc. v. HelloAva, Inc., et. al., a lawsuit filed by my client Metabeauty, Inc. against a venture-backed online platform that recommends skincare and cosmetic products.

Versatile video coding (VVC), also known as Future Video Coding (FVC) or H.266, is a video compression standard that was released on July 6 and is being positioned as the successor to High Efficiency Video Coding (HEVC or H.265). CPA Global has reviewed the key aspects of the standard and factors which could impact its licensing and adoption and we have identified and analyzed the key patented technologies that have a possibility of being relevant to the VVC standard. The standard was in the process of being finalized at the time we conducted our analysis and we have therefore referred to Draft 8 of VVC, which was approved by JVET in the Brussels meeting from January 7-17, 2020.