Posts Tagged: "Article III"

Apple is Afraid of Inventors, Not Patent Trolls

Apple made headlines with its recent decision to close its stores in Frisco and my home town of Plano, Texas. The rumor is that Apple was afraid of the dreaded “patent troll.” However, Apple is not afraid of patent trolls. They are afraid of inventors. Whenever you hear the term patent troll, think of inventors. Inventors like my friend Bob Short, who solved an important technical problem in 1998 with his invention—a protocol that encrypts real-time audio and video transmissions. Apple wanted his technology for their FaceTime app, so they took it. Bob’s company, VirnetX, has spent six years trying to stop them and make them pay. Meanwhile Apple, Google, and other tech titans have spread propaganda and paid lawyers, academics, lobbyists, and politicians to destroy the U.S. patent system.

Elgin v. Dept. of the Treasury and Preserving Constitutional Issues Before the USPTO

Those who practice in the field of patents tend to focus almost exclusively upon developments in patent law and pay less attention to developments in other areas of law. This is to be expected; patent cases don’t usually overlap with issues such as employment law or criminal law; so why bother reading up on those subjects? And yet, it can actually be useful to keep abreast of Supreme Court decisions that on their faces do not pertain to patent law. A few days ago, IPWatchdog Founder and CEO Gene Quinn discussed one such case. Though that case was not patent-related, he felt the decision may be of interest to patent practitioners, especially those dealing with patent eligibility under section 101. In that same vein, following is a discussion of a (less recent) decision from the United States Supreme Court, Elgin v. Department of the Treasury, 567 U.S. 1 (2012), that patent practitioners may have overlooked. On its face, the case deals with employment law, but it includes aspects of federal administrative practice that can affect patent practitioners.

Federal Circuit Rules Momenta Has No Standing after Ceasing Development of a Biosimilar

Earlier this month, the Federal Circuit dismissed an appeal from the Patent Trial and Appeal Board (Board) where the Board upheld the patentability of a biologics patent. After Momenta Pharmaceuticals petitioned the Board for an inter partes review (IPR) of the patentability of Orencia® (abatacept), the Board sustained patentability and Momenta appealed. During the course of the appeal, Momenta ceased development of an abatacept biosimilar. The Federal Circuit held that the cessation of potential infringement mooted the injury and removed Momenta’s standing to maintain the appeal. Momenta Pharm., Inc. v. Bristol-Myers Squibb Co., No. 2017-1694, 2019 U.S. App. LEXIS 3786 (Fed. Cir. Feb. 7, 2019) (Before Newman, Dyk, and Chen, Circuit Judges) (Opinion for the Court, Newman, Circuit Judge).

Supreme Court Asked to Decide if AIA Creates Standing for Any Party to Appeal PTAB Decisions

Japanese manufacturer JTEKT Corporation recently filed a petition for writ of certiorari with the U.S. Supreme Court asking he nation’s highest court to determine whether federal statutes governing appeals from the Patent Trial and Appeal Board (PTAB) create a right for PTAB petitioners to have an appellate court review adverse final written decisions. If the case is taken by the Supreme Court the question will be whether the AIA creates standing for any dissatisfied party to appeal a PTAB final decision. The Court of Appeals for the Federal Circuit’s had decided JTEKT did not prove an injury in fact for the purposes of determining the existence of Article III standing in its appeal.

CAFC Vacates PTAB Decision to Uphold Conversant Wireless Patent Challenged by Google, LG

On Tuesday, November 20th, the Court of Appeals for the Federal Circuit issued a nonprecedential decision in Google LLC v. Conversant Wireless Licensing, which vacated a decision by the Patent Trial and Appeal Board (PTAB) to uphold the validity of patent claims owned by Conversant after conducting an inter partes review (IPR) proceeding petitioned by Google and LG Electronics… It is hard to reconcile decisions where the Federal Circuit bends over backwards to give more process and procedural rights to petitioners when for so long patent owners have been railroaded at the PTAB and then had those summary execution proceedings rubber stamped by the Federal Circuit. If increased scrutiny on the PTAB is a two-way street I welcome it.