Posts Tagged: "patent"

District court patent filings exploded this week with 126, while Patent Trial and Appeal Board filings were down substantially, with just 11 inter partes reviews (IPRs) and two post grant reviews (PGRs) filed. The district courts saw the return of serial filer WSOU (this time against F5 Networks) as well as a new round of suits in AGIS Software Development LLC (discussed below), a surprising (even for them) number of new IP Edge suits, and a fair number of new defendants added to existing non-practicing entity (NPE) suits. Raymond Anthony Joao continues to add defendants quickly to various subsidiaries, and Leigh Rothschild had a few new cases, in a week dominated by NPE filings.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on February 1 held in part that the United States Patent and Trademark Office’s (UPSTO) Patent Trial and Appeal Board (PTAB) erred in finding a claim anticipated when the petition for inter partes review had only asserted obviousness as to the claim. M&K Holdings, Inc. v. Samsung Electronics Co. Ltd. (CAFC, Feb 1, 2020). The CAFC vacated the PTAB’s decision on that claim but affirmed the holding of unpatentability as to the rest of the asserted claims.

For better or for worse, there is no such thing as a worldwide patent. There is, however, something that approximates a worldwide patent application that can ultimately result in a patent being obtained in over 150 countries around the world. This patent application is known as an international patent application, or simply an international application. The international treaty that authorizes the filing of this single international patent application is the Patent Cooperation Treaty, most commonly referred to as the PCT.

The United States has a clear need for patent reform, but does our legislature understand how to implement that reform? For decades, a shortcoming to our approach to patent reform has been misidentifying the problem as “patent trolls” (more generally, bad actors). Based on a misidentified problem, we have implemented a decades-long policy to systematically weaken patent rights, in an attempt to deter this archetypal bad actor. If we instead use economic principles to address patent reform, we would understand the root problem to our patent system—exorbitantly bloated transactional costs.

The United States is not even two weeks into the administration of President Joe Biden and it’s likely that the administration’s selection for Director of the U.S. Patent and Trademark Office (USPTO) will not become clear for a few months yet. Many members of the U.S. innovation community, however, are well aware of the high stakes in play with that selection. The tenure of outgoing Director Andrei Iancu was lauded across many sectors of the U.S. patent system, perhaps with the exception of the tech sector. As we consider candidates for the next USPTO head, perhaps we should look to the political moment in which we find ourselves to guide our search.  

The Court of Justice of the European Union (CJEU) last week ruled against Qualcomm in an antitrust case over UMTS-compliant baseband chipsets. The case dates back to April 2010, when UK company Icera Inc. filed a complaint accusing Qualcomm of predatory pricing by supplying three chipsets to its customers Huawei and ZTE at below cost price…. The judgment gives the Commission the green light to seek a broad range of information in antitrust investigations, which may have implications for actions against other tech companies.

Martha Jones of Amelia County, Virginia, is believed by many to be the first black woman to receive a United States patent. Her application for an “Improvement to the Corn Husker, Sheller” was granted U.S. patent No. 77,494 in 1868. Jones claimed her invention could husk, shell, cut up, and separate husks from corn in one operation, representing a significant step forward in the automation of agricultural processes.

Courts around the world have determined appropriate methodologies for calculating damages on standard essential patents (SEPs) for which patent holders have made an assurance to license on fair, reasonable and non-discriminatory (FRAND) terms. Determinations of patent holdup, licensee holdout, use of worldwide portfolio licensing, incremental value rule, etc. are included in these decisions. The court determines damages based on the below-referenced judgments and FRAND terms when reviewing SEP infringements. Under most patent laws, infringement damages are set based on factors including actual loss due to infringement, if the actual loss is difficult to determine, gains of the infringer, and if both actual loss and gains are not available—determination of appropriate multiples of a reasonable royalty fee. 

Companies that have a strong, diversified patent portfolio can establish themselves as key innovators within a particular field and secure a freedom to operate in that field. In some situations, companies may also choose to enforce patent rights granted to them by these patents in a litigation, either offensively against an alleged infringer or as a defense to patent infringement claims against them.

Recently, the Day One Project, an initiative of the Federation of American Scientists, released a transition document drafted by a collection of veteran policymakers discussing a range of policy ideas to be implemented at the U.S. Patent and Trademark Office (USPTO) starting from the earliest days of the Biden Administration. The ideas advocated by the Day One Project focus on a mix of policies related to diversity, international IP systems, patent quality, agency budgeting and governance and ways that the USPTO can contribute to broader administrative policy initiatives. While there are many sound policy positions advocated by the Day One Project, patent owners may want to be aware of the document’s stance on the “public benefit of PTAB review of a patent” as well as the agency’s role in developing policy on patentable subject matter reform. Interestingly, the policy document indicates that there is broad consensus for continuing policies from the Trump Administration relating to China’s influence on the world of intellectual property.

On January 27, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed in-part and vacated in-part a decision of the Patent Trial and Appeal Board (PTAB) in its inter partes review of claims 1—20 of U.S. Patent No. 8,370,106 (the ‘106 patent) assigned to KEYnetik, Inc. (KEYnetik). Judge O’Malley concurred in part and dissented in part. In particular, the CAFC concluded that the PTAB did not err in its claim construction regarding an orientation detection limitation and a sequence limitation. Further, the CAFC affirmed the PTAB’s decision that the Petitioner’s references could be combined. However, the CAFC also found that the PTAB failed to properly assess the appellant’s argument regarding a reasonable expectation of success when combining references and therefore vacated the decision and remanded the case so that the Board could make such a determination.

My head was turned by the recent news of President Trump’s final-day pardon of Anthony Levandowski, the former head of Google’s self-driving car unit who was recruited into Uber with full knowledge that he had downloaded 14,000 confidential files on his way out, and who was later convicted of trade secret theft. I was struck by the White House statement of justification. It said that Levandowski – who hadn’t yet served a day of his 18-month sentence – “has paid a significant price for his actions.” I have no doubt that Levandowski has “paid a significant price” for his misdeeds, but it caused me to think about the price paid by others who were involved in this fiasco of a hiring, most specifically Uber. Salacious stories like this one serve as a reminder of all the things that can go wrong when we hire someone from the competition. Especially when we stop thinking about risk and see only upside. So, let’s talk about that risk and what you can do to keep yourself out of trouble – and never, ever need a presidential pardon.

District Court patent filings were down again this week with just 46—two thirds of usual output—and the continued absence of any new WSOU filings may point to some kind of strategy reset (or not;  it could just be a lull.). Board filings were at their usual pace with 32, though a huge portion of those were filed by BMW and Mercedes against Oso IP subsidiary Stragent, LLC or Medtronic (against Speyside Medical, LLC). This week saw another five denials under the Board’s discretion, mostly on cases already reported on.

Artificial intelligence (AI) is a rapidly growing sector of the life sciences industry, with broad-ranging applications in drug discovery, biotechnology, medical diagnosis, clinical trials, precision and personalized medicine and patient monitoring. The recent uptick of AI use in this industry is likely due to the increasing availability of “big data.” AI technologies including machine learning, deep learning, and natural language processing can be harnessed to process vast data sets to identify new drug candidates, optimize drug dosing, match patients with drug trials and diagnose diseases. Recognizing this potential, global biopharma companies have invested heavily in AI technology—the AI in life sciences market was valued at USD 1092.44 million in 2019 and is expected to reach USD 3445.60 million by 2025.