Posts Tagged: "patent"

Eleven amicus briefs were docketed during the last two business days of 2020 in United States v. Arthrex, Inc., et al., which is scheduled for oral argument on March 1, 2021. Several of the briefs were filed by independent inventors, who implored the Court to acknowledge the stories of entrepreneurs and small inventors who have been adversely impacted by the Patent Trial and Appeal Board (PTAB), in part because Administrative Patent Judges (APJs) are presently unaccountable.

On December 29, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed a district court’s decision dismissing Simio’s patent infringement action against FlexSim Software Products (FlexSim) and finding Simio’s claims patent ineligible under 35 U.S.C. § 101 (Simio v. FlexSim Software Products, Inc.). The CAFC also affirmed the district court’s dismissal of Simio’s motion for leave to file an amended complaint on the grounds of futility and, alternatively, on the ground that Simio failed to show good cause for its untimely motion for leave to amend.

In Part I of this five-part series, the authors reviewed the law behind subsequent patent applications. In Part II, we reviewed the different types of subsequent applications. In Parts III and IV we discussed various implications of the types of subsequent applicants. And now, in Part V, we provide practice tips drawn from the case law cited in this series, as well as derived from omphaloskepsis.

American Axle & Manufacturing, Inc. filed a petition for certiorari with the U.S. Supreme Court on December 28, 2020, asking it to review the Federal Circuit’s July 31, 2020 modified judgment and October 2019 panel opinion in a closely-watched Section 101 patent eligibility case involving driveshaft automotive technology. The Federal Circuit has been sharply divided by the issues presented, leading Judge Moore to refer to the original panel’s analysis as “validity goulash” and to state that the “majority’s Nothing More test, like the great American work The Raven from which it is surely borrowing, will, as in the poem, lead to insanity.”

In 2015, Randy dela Fuente launched Snapizzi. Randy had bet big, putting his career, savings, and company at risk. Later, Randy brought in a business partner, Chris Scoones, who cleaned out his savings and mortgaged his house. But they believed in the patent. On the patent’s government-issued cover, it stated that Snapizzi would have the “right to exclude others from making, using, offering for sale, or selling” the invention. This meant that U.S. Patent No. 8,794,506 would protect their company from infringers and give them enough time to carve a toehold in the market. That patent cover also said that the patent was “granted under law”, which meant that it was a legally granted and presumed valid property right. In America, we are a nation of laws. Randy trusted the U.S. government, and this made the burden of huge risk much more tolerable. But in December 2019, a court held that the claims are all ineligible for patenting because they are “abstract ideas”.

On December 23, the United States Court of Appeals for the Federal Circuit (CAFC) vacated a decision of the USPTO’s Patent Trial and Appeals Board (PTAB), holding that the PTAB’s conclusion that Raytheon Technology Corp.’s (Raytheon’s) patent was non-obvious lacked substantial evidence. See General Electric Company v. Raytheon Technologies Corporation. The CAFC also found that General Electric Company (GE) had alleged sufficient facts to establish that it was engaging in activity that created a substantial risk of future infringement, and therefore had standing to bring the appeal.

While coronavirus spent the majority of 2020 wreaking havoc on earth, pharmaceutical companies have been busy at work trying to invent a vaccine to combat it. Several companies, such as Pfizer, Moderna and AstraZeneca, have competed neck and neck to be the first to deliver a cure to the world. Renowned pharmaceutical companies have been successful in developing the vaccine, which will be protected under the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS).

As the world bids good riddance to 2020, cursed as it has been by the COVID-19 pandemic and its attendant shutdown of major swathes of the globe’s economy, this list of the Top 10 Patents of 2020 hopefully serves as a reminder that—although the world has missed out on concerts and sporting events aplenty—this year has not been a wasted opportunity for inventors. The world of patent law may be steeped in the tradition of legal precedent but the technologies covered by patents themselves are forward-looking, promising days of driverless vehicle commutes, personalized cancer treatments and fewer awkward moments on Zoom calls. This list does not purport to be an authoritative collection of the most economically valuable technologies protected by patents during 2020, but it offers an honest assessment of technologies that may provide an array of social benefits to consumers long after we ring out the current year.

Chief Judge McMahon, in deciding the defendant’s motion to compel arbitration, ruled the arbitration clause did not prevent Jedi from accessing the federal district court and refused to compel arbitration. “The fact that Mr. Haan signed up for SCRUFF is insufficient to conclude that his actions bound Jedi to Perry’s TOS,” McMahon wrote. “For there to be an agreement to arbitrate, there must be evidence that Jedi (not Haan) knowingly agreed to Perry’s TOS and the arbitration clause contained within it. Since Jedi never signed up for SCRUF, there must be evidence that Jedi authorized Haan to assent to the clause on its behalf.”

Novel and non-obvious can be easily used to describe the events of 2020, both here in the United States and around the world. Despite all the challenges, there have been positive developments in the way we conduct business—and that certainly was true at the U.S. Patent and Trademark Office (USPTO). Below we recap some of the most significant developments at the USPTO in 2020 and topics to keep an eye on in 2021.

Earlier today, Judge Rodney Gilstrap of the United States Federal District Court for the Eastern District of Texas issued a temporary restraining order against Samsung in a FRAND (fair, reasonable and non-discriminatory licensing rates) lawsuit filed by Ericsson on December 11, 2020. The Order gives Samsung until January 1, 2021 to file any opposition to the continuation of the temporary restraining order, and gives Ericsson until January 5, 2021 to respond if, or more likely when, Samsung, files an objection. At first glance to the trained eye this seems shocking, but as is so often the case in the world of standard essential patents (SEPs) and FRAND, there is much more than meets the eye.

If you’re looking for some positive patent news from 2020, count the heightened civic awareness of our intellectual-property/innovation policies, as a result of the global pandemic, as a silver lining. But our present task is to report on the 2020 highlights from the Federal Circuit; unfortunately, it’s all downhill from here. If 2019 had Section 101 law as its defining issue, given the Federal Circuit and
Supreme Court’s slate of rulings and non-rulings, 2020 only seemed to make the Section101 exclusions even broader. The capstone was AAM, Inc. v. Neapco Holdings LLC, 966 F.3d 1347 (Fed. Cir. 2020), the Federal Circuit’s denial of en-banc consideration (again) of Section 101 rulings that, all judicial protests aside, seemed to plainly expand a reviewing court’s power under Section 101 (again). And in ways many would’ve thought unimaginable just six-to-eight years ago, when Mayo-Alice emerged from the Supreme Court with only “inventive-concept” tests ringing about. Neapco’s panel ruling in the fall of 2019 was the proverbial shot across the Section112 bow.

The week before Christmas brought the biggest post-grant review (PGR) bulk filing to date, with 10 matters all stemming from a pharmaceutical dispute between Allergan and BTL Medical Technologies (and one other, unrelated). That’s a steady average of 30 inter partes reviews (IPRs) propped up by the glut of 11 PGRs stemming from that dispute, discussed below. The 81 district court cases were again propped up by WSOU adding their usual dozen or so complaints and a new defendant, this time adding Salesforce to their ever-growing campaign asserting some of their 4,000 or so Nokia patents against seemingly the entire world.

In Part I of this series, the authors reviewed the law behind subsequent patent applications. In Part II, we reviewed the different types of subsequent applications. Part III discussed some of the implications of these for prosecution and litigation, and Part IV will examine some further implications. In the fifth and final installment in this series, we will distill all of the information covered to provide concrete practice tips for practitioners.

While China is becoming an increasingly attractive patent filing destination for foreign companies, foreign counsels are often confused by the country’s inventive step requirement. Indeed, Chinese patent examiners often use abstract legal terms, such as “prominent substantive features” and “notable progress,” in their inventive step analysis. This article provides an overview of the inventive step requirement in China, in comparison with the non-obviousness standard in the United States.