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CAFC Upholds PTAB Ruling for Corcept, Finding Teva Failed to Show a Reasonable Expectation of Success

The U.S. Court of Appeals for the Federal Circuit in a precedential decision yesterday affirmed a Patent Trial and Appeal Board (PTAB) decision that Teva Pharmaceuticals had failed to prove Corcept Therapuetics’ U.S. Patent No. 10,195,214 would have been obvious. The patent covers methods of treating Cushing’s syndrome, a disease caused by excessive levels of the naturally occurring steroid hormone, cortisol. Chief Judge Moore authored the opinion.

Machine Learning Models: The Legal Need for Editability (Part I)

A widespread concern with many machine learning models is the inability to remove the traces of training data that are legally tainted. That is, after training a machine learning model, it may be determined that some of the underlying data that was used to develop the model may have been wrongfully obtained or processed. The ingested data may include files that an employee took from a former company, thus tainted with misappropriated trade secrets. Or the data may have been lawfully obtained, but without the adequate permissions to process the data. With the constantly and rapidly evolving landscape of data usage restrictions at the international, federal, state, and even municipal levels, companies having troves of lawfully-obtained data may find that the usage of that data in their machine learning models becomes illegal.

DOJ Issues Revised Draft Joint Policy Statement on Remedies for SEPs Subject to FRAND

The U.S. Department of Justice – Antitrust Division (DOJ) is requesting public comment on a new iteration of the Joint DOJ-USPTO-NIST Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary FRAND Commitments. The announcement comes in response to President Joe Biden’s July 2021 Executive Order on Promoting Competition in the American Economy, which asked the three agencies to review the 2019 statement.

Albright Grants Rare Preliminary Injunction Against Fitness Company

On December 1, Judge Alan Albright, sitting in the Waco Division of the Western District of Texas, granted a preliminary injunction (PI) to Gonza LLC, finding that all four factors of the judicial test for injunctive relief favored Gonza. IPWatchdog is told it is one of only a handful of PIs Albright has issued. On July 28, 2021, Gonza LLC sued Mission Competition Fitness Equipment (MCF) in the Waco Division of the Western District of Texas. Gonza sought both injunctive relief and damages arising out of MCF’s alleged infringement of its U.S. Patent No. 11,007,405 (the ‘405 patent). Gonza asserted that it developed the subject matter of the ‘405 patent, which discloses a neck exercise device with resistance bands that can be used to improve neck capabilities, during a period of over two years. In its complaint, Gonza contended that MCF released a knock-off device that used lower quality materials, but nonetheless infringed the ‘405 patent. Gonza argued that MCF’s infringement of their ‘405 patent created a loss of goodwill, eroded the market price, and caused extreme negative consequences for Gonza’s business.

Good Sports: Cleveland MLB and Roller Derby Teams Share GUARDIANS Name

The MLB baseball team formerly known as the Cleveland Indians has a new name that pays homage to the history of Cleveland. The team last rebranded in 1915, when it left behind its former name, the “Naps” (short for “Napoleons”) in favor of the “Indians.” Now, over a century later, the team has joined other sports franchises in retiring Native American names, mascots, and imagery imbued with negative and racist connotations. With the help of actor and Cleveland Indians fan Tom Hanks, the baseball team announced on July 23, 2021 that it would adopt a new name: the Cleveland Guardians.

Christopher & Weisberg is Seeking a Patent Attorney or Agent (Electrical & Mechanical Field)

Christopher & Weisberg, P.A. is seeking a Patent Attorney or Agent practicing n the Electrical & Mechanical field for the full-time, permanent, in-person position located in Plantation, FL. Christopher & Weisberg, P.A. is an IP Boutique firm located in South Florida with great people working together to serve great clients. This is not a posting for full-time remote or piece work. We want an attorney in our Plantation, FL office (Miami/Ft. Lauderdale Metro) that is an engaged member of a team, although a few people do work a few days per week remotely. We are looking for attorneys (or perhaps agents) with electrical/telecom/computer degrees, as well as mechanical/medical device backgrounds and hopefully industry experience.

Examining the Moderna-NIH COVID-19 Vaccine Debate in the Context of Bayh-Dole

In the wake of the development of COVID-19 vaccines, the Biden-Harris Administration has suggested major shifts in U.S. policy concerning patent protection. In May of this year, Ambassador Katherine Tai, the U.S. Trade Representative (USTR) announced the Administration’s support for waiving intellectual property protections for COVID-19 vaccines. Most recently, the National Institutes of Health (NIH) Director Dr. Francis Collins accused Moderna of excluding three NIH scientists as co-inventors of a key patent for the COVID-19 vaccine. This article explores an alternative possibility of the Administration exercising certain rights in the COVID-19 vaccine invention under the 1980 Bayh-Dole Act—one day after the bill’s co-sponsor, Senator Bob Dole, passed away—and whether such an exercise of rights is in line with past precedent or would be a violent disruption to the status quo.  

This Week in Washington IP: Improving Biomedical Research, Amending Section 230 to Hold Big Tech Accountable, and Promoting Privacy in the Tech Sector

This week in Washington IP news, the House of Representatives will host committee hearings discussing several draft pieces of legislation that would update the 21st Century Cures Act as well as reduce immunity to liability for major tech firms currently enjoyed under Section 230 of the Communications Decency Act. Over in the Senate, the Fiscal Responsibility Subcommittee will discuss how changes to privacy policies in Big Tech firms have impacted targeted advertising activities for a wide swath of the economy. Elsewhere, the Center for Strategic & International Studies hosts a debate on the topic of China’s tech crackdown and its potential impacts on innovation, and the Information Technology & Innovation Foundation will explore whether increased support for advanced renewables research can help the global community meet certain clean energy goals by the middle of this century.

Senator Bob Dole: A Staunch Defender of His Country, and Our Patent System

If you’re going into a desperate fight, there are some people that you want on your side. One was Robert Dole, who passed away yesterday, December 5, at 98 years old….. It was characteristic of his generation—and of Bob Dole—to honor his fallen colleagues, even when he was bound in a wheelchair. Few who saw it will ever forget Senator Dole insisting on getting up and walking to the coffin of his friend, Senator Daniel Inouye, who lost an arm fighting in Italy, close to where Dole was wounded. Even though his health was deteriorating last year when we honored Bayh-Dole’s 40th anniversary, Senator Dole made a very gracious video tribute to his former colleague, Senator Birch Bayh. That Birch Bayh and Daniel Inouye were Democrats made no difference to Bob Dole.

Inventing Chaos with the Moderna/NIH Dispute

Moderna and the National Institutes of Health (NIH) are poised for a legal battle over inventorship of a vaccine for COVID-19. While a court may resolve the dispute over inventorship for the patent application, court review of current inventorship rules could be a slippery slope to chaos. Moderna and NIH collaborated on developing a functional vaccine for COVID-19, which is not in dispute. As a result of the collaboration, a vaccine labeled “mRNA-1273” was created and a U.S. patent application was filed by Moderna, with no NIH scientists listed as inventors. Moderna has commented that, after an internal review, no NIH scientists designed the actual vaccine claimed in the U.S. patent application. NIH has commented that it believes three scientists should be included in the U.S. patent application as co-inventors with the Moderna scientists.

The PTAB Desperately Needs Reform, Not Preservation

The Patent Trial and Appeal Board (PTAB), created by the America Invents Act (AIA) just over 10 years ago, is the most electrifying lightning rod in the industry. As explained repeatedly by Members of Congress at the time the AIA was enacted, the purpose was to create a streamlined, less expensive, alternative administrative means to challenge the invalidity of issued patents. Sadly, with that being the stated purpose, the creation of the PTAB can be objectively characterized as nothing other than an abysmal failure. What has evolved is anything but streamlined, and certainly not inexpensive, even compared with district court litigation.

Five Must-Have Tips for Expediting Trademark Lawsuits in Brazil

Civil processes and procedures in the Brazilian Courts have been increasingly expedited due to the digitalization of case files and the assignment of courts specialized in specific matters (for instance, in corporate and intellectual property law). But the timeframe for judicial disputes involving IP rights in Brazil can be expedited even more for foreign companies by complying with the following procedural requirements.

Other Barks & Bites for Friday, December 3: Senate Republicans Question FTC’s Khan on Zombie Votes, USPTO’s Hirshfeld Gives Update on Small Claims Patent Tribunal Study, and Cellspin Soft Challenges Denials of USPTO Director Review at CAFC

This week in Other Barks & Bites: Moderna loses out on two appeals from PTAB final written decisions in part due to a lack of Article III standing; a group of Senate Republicans send a letter to FTC Chair Lina Khan regarding the agency’s use of “zombie votes;” the 2021 International Property Rights Index reflects an overall decline in the state of intellectual property rights globally; Joff Wild announces that he’s stepping down as editor-in-chief of Law Business Research at the end of the year; Register Perlmutter exercises her authority to extend the commencement date for the Copyright Claims Board by up to 180 days; the FTC files an antitrust suit challenging the legality of Nvidia’s $40 billion acquisition of chip supplier Arm; the Tenth Circuit affirms that RICO claims involving a university’s alleged theft of a novel algorithm developed by a student were time-barred; and Cellspin Soft files a supplemental brief at the Federal Circuit challenging the USPTO’s authority in denying requests for Director review of PTAB decisions under Arthrex. 

Mechanisms, Governance, and Policy Impact of SEP Determination Approaches

Standard Essential Patents (SEPs) are on the rise; the number of newly declared patents per year has almost tripled over the past five years. There were 17,623 new declared patent families in 2020, compared to 6,457 in 2015 (see Figure 1). The 5G standard alone counts over 150,000 declared patents since 2015. Similarly, litigation around SEPs has increased. One of the driving factors of recent patent litigation is the shift in connectivity standards (eg, 4G/5G, Wi-Fi) that in the past were mostly used in computers, smartphones and tablets, but are now increasingly implemented in connected vehicles, smart homes, smart factories, smart energy and healthcare applications. Another reason why litigation may rise further is the belief that large SEP owners such as Huawei, ZTE or LG Electronics may soon sell parts of their SEP portfolios, which may likely end up in the hands of patent assertion entities (PAEs). One way or another, it is anticipated that the majority of patent holders will actively monetize their SEPs covering standards such as 5G, Wi-Fi 6 or VVC in this fast-moving, high-investment environment. Any company adopting these standards must decrease operational risk and expense exposure by taking a proactive strategy towards SEPs rather than a reactive one.

Ramey & Schwaller is Seeking a Litigation Attorney

Ramey & Schwaller is looking for a litigation attorney with 3-5 years of litigation experience in federal court. The full-time, permanent position, located in Houston, TX, will be handling cases from cradle to grave. This is a fun, very active position with immediate exposure to all aspects of patent litigation.