Posts Tagged: "patent"

The most significant development in IP in Europe in 2023—indeed arguably the most significant in nearly 30 years—was the launch of the Unitary Patent and Unified Patent Court on June 1. The full implications of this are explored here. Beyond the UP and UPC, however, there were a number of. important developments in Europe affecting all the main IP rights.

In Part I of our year end summary of key developments regarding patents subject to a commitment to license on a Fair Reasonable and Non-Discriminatory (FRAND) or Reasonable and Non-Discriminatory (RAND) basis, we looked at various developments involving patent pools and reviewed some interesting damages awards and interlocutory decisions. In this installment, we consider a pair of antitrust cases dismissed in 2023 and explore what may come next on the policy front.

Another year of IP is behind us, and it is time to reflect on what mattered most—what decisions will affect practice for years to come and/or continue to play out in the courts as we move into 2024? Below are reflections on milestones from this past year—some positive, some negative, and some neutral–at least for now.

The patents granted by the U.S. Patent and Trademark Office (USPTO) tell the story of society’s innovative future. While the true value of a technological advance develops over time, the following selection of patents of 2023 represent meaningful advances in several emerging areas of technology. From artificial intelligence (AI) systems for retail checkout to improved mRNA drug delivery, these innovations have been chosen for their likeliness to make a significant real-world impact in 2024 and beyond.

Senator Thom Tillis sent a letter today to President Joe Biden asking him to answer three broad questions related to his proposal earlier this month that would allow government agencies considerable discretion in deciding whether and when to “march in” on patents. As we previously reported, the National Institute of Standards & Technology (NIST) and the Department of Commerce published a Federal Register Notice on December 8 seeking comments on a proposed framework for exercising march-in rights under the Bayh-Dole Act that would significantly broaden the criteria for compulsory licensing of patented technology developed with federal funding, particularly with respect to drug pricing.

Unsurprisingly, the UK Supreme Court today ruled that Stephen Thaler’s AI Machine, DABUS, cannot be granted patents for inventions it autonomously created. While the Court suggested that questions such as whether inventions like DABUS’ should be patentable and if the meaning of the term “inventor” should be expanded are important ones that should be considered at a policy level, the present case was concerned solely with the interpretation of the present law, which clearly does not contemplate non-human inventors.  

Throughout 2023, a number of legislative initiatives impacting intellectual property rights were introduced in the United States Congress or signed into law by the President. In some instances, these efforts are meant to try and re-balance the various, sometimes competing, interests of the public and the innovators. In other instances, the legislation is aimed at weaponizing the intellectual property right procurement process to reward some and punish others. Various pieces of legislation as well as Executive Directives directed at artificial intelligence also have been introduced at different levels. This piece, however, leaves those AI issues for others to address. Below is a summary of some of the key legislative efforts in 2023 touching on U.S. IP rights.

Apple confirmed to media outlets on Monday that it will halt sales of certain Apple watches following the October International Trade Commission (ITC) ruling issuing a limited exclusion (LEO) order against the products. In its October ruling, the ITC found Apple violated section 337 by importing Apple Watches that infringed on two Masimo patents that covered technology related to reading blood-oxygen levels.

On December 15, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in ParkerVision, Inc. v. Vidal affirming the Patent Trial and Appeal Board’s (PTAB) invalidation of ParkerVision’s patent claim to down-converting electromagnetic (EM) signals in wireless communication networks. In so holding, the Federal Circuit upheld the PTAB’s use of claim construction conflicting with parallel proceedings in the Western District of Texas on the grounds that the patentee defined the term “storage element” as a lexicographer.

On June 1, 2023, the Unified Patent Court (UPC) opened, providing a new venue for patent litigation across all 17 ratifying European Union member states. The court represents a significant shift in patent litigation in the EU, which is poised to impact the global patent strategy of U.S. and multinational companies. Through the European Patent Office (EPO), inventors have long been able to obtain patent protection across most of the EU through a single application. Once the EPO grants a European Patent, inventors have the option of obtaining local patent protection in any member state that they select without the need for further examination or review. However, historically, once the EPO granted a patent, there was no single enforcement or invalidation mechanism, leaving it up to the member states to enforce patent rights.

Although the proceedings before federal district courts may not garner as much attention as those of the U.S. Court of appeals for the Federal Circuit or the Supreme Court, they can be an important proving ground for the decisions rendered by those courts. And 2023 was no exception to that rule. As discussed below, the Zogenix v. Apotex and Teva v. Eli Lilly decisions provide a glimpse into what litigants can expect in the aftermath of the GSK v. Teva and Amgen v. Sanofi decisions, respectively. These cases will have an especially significant impact on the life sciences industry, and watching how these decisions are applied by the district courts should be a priority for practitioners in this space.

In 2023, the U.S. Supreme Court decided four intellectual property cases. The cases touched all of the major fields of intellectual property—two cases interpreted the federal trademark act (Jack Daniel’s and Abitron), one case involved patent enablement (Amgen), and one case explicated the federal copyright statutes (Goldsmith). The decisions were split along party lines, with two cases finding in favor of intellectual property owners (Jack Daniel’s and Goldsmith) and two cases in favor of the accused infringers (Abitron and Amgen).

Innovators that invest in R&D are the driving force behind today’s rapidly evolving technological landscape. However, implementers that rely on – and as a result benefit from – those innovations to sell their own products and services aren’t usually eager to pay those innovators. But by paying the innovators, the implementers are actually helping make sure that the cycle of innovation continues. Matteo Sabattini, the new President and Chief Licensing Officer of Convida, joins Eli on this episode of the Clause 8 podcast to talk about this important dynamic.

As 2023 draws to a close, here’s a gift of five golden Federal Circuit patent cases! These decisions issued by the U.S. Court of Appeals for the Federal Circuit (CAFC) significantly impact patent practitioners in several areas, including patent prosecution, litigation, and inter partes reviews (IPRs).

The U.S. Supreme Court yesterday denied a petition for writ of certiorari asking the Court to reconsider the U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) June ruling that the petitioner said signals an expanding practice of reversing agency decisions in lieu of remand. In the CAFC’s decision, the court reversed a Patent Trial and Appeal Board (PTAB) judgment that affirmed patent claims in part due to the commercial success of MacNeil IP’s WeatherTech vehicle floor tray. The CAFC also affirmed a PTAB ruling that invalidated three claims of one of MacNeil’s patents in its battle with Yita LLC, a Seattle-based auto parts company.