Posts Tagged: "patent"

Time to Fix U.S. Innovation Policy to Ensure We’re Prepared for the Next Pandemic

“The COVID-19 crisis has once more highlighted the need for incentivizing investment and innovation—and thus, for patent laws that duly “promote” and protect such “progress,” precisely as our Founders envisioned,” writes Chief Judge Paul Michel, now retired from the Federal Circuit. As he so often is, Judge Michel is absolutely correct. Many are asking why testing for the coronavirus that causes COVID-19 has been slow to roll out, and why tests in many countries are inaccurate. Those familiar with U.S. patent laws understand the problem. There has been a deemphasis on medical diagnostics in America as the result of a series of Supreme Court and Federal Circuit rulings, coupled with Congressional inaction.

Patent Filings Roundup: Brine Battles, Enforcing the ‘One-Petition Rule’ and Matchmaker Patent Suits

District court patent filings are again high this week—73 new complaints filed (just a few shy of last week), but Patent Trial and Appeal Board (PTAB) cases are down a bit, with 18 newly filed inter partes review (IPR) and three post-grant review (PGR) petitions. Thus far, there has been no visible change in patent assertions based on the current economic and health crises affecting other industries, though PTAB filings continue to decline.

Will the Supreme Court Keep Kicking the Can or Stop It by Addressing Arthrex?

On April 6, Arthrex, Inc. filed a petition for certiorari in the U.S. Supreme Court on two discrete patent issues. Notably, one of the issues raised in Arthrex’s April 6 petition is likely to prove especially compelling to the Supreme Court, and may well tilt the balance for it being granted, as it provides an inroad to a constitutional Appointments Clause issue that is central to several other petitions by various parties on the same issue. Arthrex is widely anticipated to file another petition for certiorari on this issue stemming from the Court of Appeals for the Federal Circuit’s recent denial of a rehearing en banc in Arthrex v. Smith & Nephew wherein the main issue had been the Federal Circuit’s ruling that Patent Trial and Appeal Board (PTAB) judges were indeed unconstitutionally appointed under the America Invents Act (AIA), but that the Federal Circuit’s field expedient blue penciling of the underlying statutes corrected any constitutional flaws nunc pro tunc.

Golden v. United States Shows That the Federal Circuit Overstepped Its Bounds in Celgene

Last week, in Golden v. United States, the Federal Circuit again rejected the argument that the cancellation of a patent in an America Invents Act (AIA) post-grant proceeding violates the Fifth Amendment’s Takings Clause. Just as it did in other cases raising Patent Trial and Appeal Board (PTAB)-related Takings Clause issues, the appellate court in Golden relied on its July 2019 decision in Celgene Corp. v. Peter (931 F.3d 1342 [Fed. Cir. 2019]), rejecting the Takings Clause argument on the merits. See Collabo Innovations, Inc. v. Sony Corp., 778 F. App’x 954, 961 (Fed. Cir. 2019); Enzo Life Sci., Inc. v. Becton Dickinson & Co., 780 F. App’x 903, 911 (Fed. Cir. 2019). But unlike these previous decisions, the Federal Circuit’s analysis in Golden also included discussion and resolution of an important threshold jurisdictional question—an issue that, as we argued in a November 2019 IPWatchdog piece, should have precluded the Federal Circuit from reaching the merits of the Takings Clause argument in Celgene in the first place.

Are Machines ‘Agents’ for Purposes of the Patent Venue Statute? (Part I)

In its TC Heartland decision in 2017, the Supreme Court rejected the Federal Circuit’s interpretation of the patent venue law, and held that in order to bring a patent infringement lawsuit against a company in a given district, that company must either reside in that district or have a “regular and established place of business” and have committed an act of alleged infringement there. As expected, this has led to a decrease in the number of patent cases being filed in the Eastern District of Texas, and an increase in the number of cases being brought in other districts, including in the District of Delaware, where many companies are incorporated. The TC Heartland decision was welcome news to many companies that regarded the Eastern District of Texas as being pro-plaintiff. However, the TC Heartland decision has not stopped plaintiffs from seeking to push the envelope as to the meaning of a “regular and established place of business” in order to seek to establish venue in a more favorable venue. Indeed, according to the Q1 2020 Patent Dispute Report, the Western District of Texas has now apparently become the venue of choice for filing patent infringement actions and it is forecasted to surpass the District of Delaware for the most new filings in 2020. The report also included that this district has become the “preferred venue” for non-practicing entities to bring infringement actions and is on pace to have over 600 patent related cases, with NPEs comprising approximately 80% of all cases. While it is too soon to know if this part of a long-term trend, it does highlight the unsettled nature of patent venue law, and the likelihood that the Federal Circuit, and perhaps the Supreme Court, will have to provide additional guidance on this issue, and especially how technology may impact this review