Posts in Patentability


Federal Circuit Affirms PTAB’s Finding of Implicit Disclosure

The Federal Circuit recently issued an opinion affirming the Patent Trial and Appeal Board’s (“PTAB”) finding of obviousness of a hot-spot technology patent based on implicit …

Can I hold on long enough until the madness stops?

If someone told me when starting my career in 1976 that I would discover a process that has been beyond the reach of professionals and experts for over 62 …
By Jeffrey Killian
8 days ago 33

Dissecting Dissents for Ex Parte Appeals

Dissent is not the highest form of judgment for judges on the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office (USPTO).  …
By Eli Mazour & Sora Ko
11 days ago 8

Where is the line between patentable subject matter and non-patentable products of nature?

A conflict exists between the incentive to invent and the breadth of patent-eligible subject matter. It has become difficult to recognize the line between patentable subject matter …

Analyzing Amicus Briefs Filed in Support of Granting Cert. in Helsinn

On June 25th, the the U.S. Supreme Court agreed to hear Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., on appeal from the Federal Circuit. …
By Steve Brachmann
26 days ago 1

Federal Circuit Treatment of ‘Commercial Success’ in Hatch-Waxman Cases

In order to establish that the commercial success factor supports a non-obviousness finding, the patentee must establish that a connection (or nexus) exists between the novel aspects …
By Theodore Chiacchio
1 month ago 1

Narrowly Construing the Bright-line Eligibility Prohibition Does Not Prevent Policing of Overbroad Claiming

Narrowly construing the § 101 eligibility exception for abstract ideas is not only suggested by Supreme Court guidance, but also could potentially allow for increased coherence and consistency while …
By Jeremy Doerre
1 month ago 15

In an Abstract Idea Context, Little Is Unmistakably Within the Bright-line Eligibility Prohibition

It seems clear that the Supreme Court did not intend to categorically prohibit patenting of everything which can be characterized as an abstract idea at some level …
By Jeremy Doerre
1 month ago 44

The Implicit Exception to § 101 for Abstract Ideas Should Be Narrowly Construed

There is an alternative route is available to stay true to Supreme Court eligibility jurisprudence: Apply the Supreme Court’s standard approach of narrowly construing statutory exceptions …
By Jeremy Doerre
1 month ago 33

Nasal Spray Patents Covering Migraine Drug Zomig Not Invalid As Obvious

The sole question on appeal was whether it would have been obvious to make zolmitriptan into a nasal spray. The Federal Circuit agreed with the district court …

Federal Circuit invites SAP America to Respond to InvestPic Petition for Rehearing

InvestPic filed a combined petition for panel rehearing and rehearing en banc on June 19, 2018, making two arguments. First, that the original decision must be vacated and remanded …
By Gene Quinn
3 months ago 3

Blockchain Patenting Strategies in view of the Berkheimer Decision

The same factual analysis required in Berkheimer under step 2B should apply to fundamental economic practice analysis of claims under step 2A. The questions have similar factual …
By Thomas Isaacson
3 months ago 1

Supreme Court to hear Helsinn v. Teva, decide AIA Secret Sales

On Monday, June 25, 2018, the United States Supreme Court granted cert. in Helsinn Healthcare S.A., v. Teva Pharmaceuticals USA, Inc. The single question presented by Helsinn in …
By Gene Quinn
3 months ago 15

USPTO issues guidance on patent eligibility of method of treatment claims in light of Vanda Pharmaceuticals

On June 7, 2018, the USPTO issued new guidance to its examining corps in the form of a memorandum discussing the Federal Circuit’s April 13, 2018 decision in Vanda Pharmaceuticals …
By John M. Rogitz
3 months ago 3

Rethinking Article III Standing in IPR Appeals at the Federal Circuit

In 2011, as part of the American Invents Act (“AIA”), Congress significantly restructured the way in which previously issued patents could be challenged.   In some cases, existing post-issuance …

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