Posts Tagged: "patent"

When it Comes to Patent Reform, Watch What Google Does – Not What it Says

The debate over patent reform is heating up again. Last month, Google published a blog post on patent reform, purportedly aimed at promoting American innovation. In it, Google decried the rising tide of “wasteful patent litigation,” railed against the disfavored practice of “forum shopping” and advocated for pending legislation aimed at making it easier for large companies to challenge the validity of patents owned by smaller rivals — all in the name of promoting a patent system that “incentivizes and rewards the most original and creative innovators.”

The Push for Clean Energy Ignores Economic and U.S. Innovation Realities

During the last Presidential campaign, then candidate Biden famously promised to end fossil fuels. True to his commitment, President Biden has attempted to make the oil and gas industry less attractive to both corporations and investors. Unfortunately, clean energy is not ready as a solution for 21st century economies. But if the Biden Administration does want an alternative energy future, it better figure out how to fix a broken American patent system where virtually nothing is patent eligible, and it better also figure out how to keep the United Nations and developing countries from stealing proprietary rights of innovators. On the heels of the Biden Administration siding with developing nations in their effort to appropriate vaccine technology, UN Secretary-General Antonio Guterres is calling for all intellectual property on clean energy technologies to be busted, and the innovations handed over to developing nations for free.

USPTO to Crack Down on ‘Incremental’ Patents in Response to Biden Executive Order’s Drug Pricing Mandate

The U.S. Patent and Trademark Office (USPTO) yesterday announced in a joint blog post with the Food and Drug Administration (FDA) that the Office plans to execute a number of initiatives aimed at lowering drug prices, as directed in July 2021 by President Joe Biden’s “Executive Order on Promoting Competition in the American Economy.” The announcement came via a blog post jointly authored by USPTO Director Kathi Vidal and Food and Drug Administration (FDA) Commissioner Robert M. Califf. Biden’s Executive Order in part encouraged curbing some pharmaceutical companies’ practices, such as so-called pay-for-delay settlement agreements between brand pharmaceutical companies and generics manufacturers. The Order called for the USPTO and the FDA “to leverage [their] collective expertise in promoting innovation, competition, and the approval and regulation of safe and effective drugs to help provide relief to American families at the pharmacy.”

It’s Time to Give Up on the Charade of U.S. Patent Protection: Most Patents are Now Officially Invalid under American Axle

Last week, the Supreme Court refused certiorari in yet another patent eligibility appeal. I’ve lost count as to how many times the Court has refused to provide clarity to the fundamental question of patent eligibility since it last muddied the waters in Alice back in 2014. I stopped counting several years ago, when the number of petitions—pleas begging for help really—crossed over 50. But the petition in American Axle was supposed to be different. Yes, the Federal Circuit has been hopelessly, and helplessly, split for years—a division and impotence of their own making. In American Axle the self-castrated Federal Circuit seemed to believe the Supreme Court modern quartet of patent eligibility cases renders nothing of importance or value patent eligible. In fact, the Federal Circuit actually ruled that a drive shaft is not patent eligible because the operation of the drive shaft fundamentally relies on Hooke’s law.

Defending Breakthrough Innovations – Protecting University Patents at the ITC

Many universities recognize the value of their patent portfolios and the need to protect their intellectual property rights from unlicensed and unfair use. When licensing negotiations break down, universities generally seek to enforce their rights in U.S. district courts, but overlook a potentially more favorable forum: the United States International Trade Commission (ITC). The ITC is a unique patent forum with experienced judges, defined patent rules, and statutory mandates to provide a timely resolution. More importantly, the ITC was designed protect U.S. industries, including the research and development performed at universities. This is not a hypothetical exercise: one university recently utilized the ITC, blazing a path that others can follow. As explained below, more universities should follow suit.

Will Dobbs Cure the Plague of Patent Eligibility Nonsense?

For anyone surprised about the Supreme Court refusing certiorari in the America Axle v. Neapco case after the Department of Justice (DOJ) (aided by the Solicitor’s Office of the U.S. Patent and Trademark Office [USPTO]) submitted its brief for the Supreme Court’s review, the question arises: why would anyone be surprised? The brief at issue is garbage, and one wonders what exactly its purpose was.

To save time for concerned readers, the DOJ’s brief may be summarized as follows: (1) a bunch of decisions were made on patent eligibility by the Supreme Court over the last 50 years; (2) the Federal Circuit is divided on the exceptions to patent eligibility; and (3) the Solicitor would like clarification as to what is abstract and what is an inventive concept, but not if it involves evidence. That is, the DOJ and PTO now demand more subjective theory on Alice-Mayo while deliberately eschewing any objective basis for the test despite the fact that the claims in Bilski, Alice, and Mayo were considered abstract based on evidence in the record.

The Way FRAND Concepts are Applied in Other Sectors Illustrates the U.S. Government’s Orwellian View of Patent Rights

A while back, we set up an email alert to advise us of any legal developments involving fair, reasonable and non-discriminatory (FRAND) licensing. Somewhat to our surprise, the notion of requiring FRAND terms and conditions for obtaining access to the otherwise exclusive property rights of others is not limited to patents essential to industry standards. Rather, FRAND licensing concepts, or minor variations thereof (e.g. “just, reasonable and nondiscriminatory”), appear in government regulation of stockyards (see 7 USC §208), vehicular air pollution information (see California’s Health and Safety Code §43105.5 (7)), and airports (see La. R.S. §1:135.1), to name a few.

American Axle Denied: Patent Stakeholders Sound Off on SCOTUS’ Refusal to Deal with Eligibility

As we’re all aware by now, the U.S. Supreme Court denied the petition in American Axle & Mfg., Inc. v. Neapco Holdings LLC late last week, in its last Orders List of the term. This leaves it up to Congress and the U.S. Patent and Trademark Office (USPTO) to restore any semblance of clarity on U.S. patent eligibility law for now. In a statement sent to IPWatchdog following the denial, the U.S. Patent and Trademark Office said it is “committed to making every effort to ensure that the U.S. patent system is as clear and consistent as possible.” Whether Congress will take eligibility up again remains an open question.

Patent Filings Roundup: Centripetal Sees More IPRs; Microsoft Engineer Sues Seven in Waco

Another light summer week in the patent world saw just 19 new petitions (all inter partes reviews [IPRs]), with 65 new district court cases (roughly average), including 75 newly terminated cases.  Five petitions were denied, with six granted; Peloton appears to have settled their dispute with Ifit (and dismissed the five related IPRs and district court suit); Peloton has been targeted by a few others. Flexiworld expanded its campaign against a number of Chinese and other foreign entities; Zoom was sued again by yet another York Eggleston subsidiary; and, after years of dormancy, more new Empire IP campaigns (AR Designs and Nearby Systems] signal the return of a once-frequent repeat player on the monetization scene.

SCOTUS Kicks Patent Eligibility Cases to the Curb in Last Move of the Term

The U.S. Supreme Court has denied certiorari in American Axle v. Neapco Holdings, Inc., leaving it up to Congress and the U.S. Patent and Trademark Office (USPTO) to restore any semblance of clarity on U.S. patent eligibility law for now. Many expected that the Court would grant the petition after the U.S. Solicitor General in May recommended granting review. The SG’s brief said that inventions like the one at issue in American Axle have “[h]istorically…long been viewed as paradigmatic examples of the ‘arts’ or ‘processes’ that may receive patent protection if other statutory criteria are satisfied” and that the U.S. Court of Appeals for the Federal Circuit “erred in reading this Court’s precedents to dictate a contrary conclusion.”

Patent Litigation Financing: Fighting Efficient Infringement with Funding

Today, many companies make the business decision to infringe patented technology instead of paying a royalty to license it—so called efficient infringement. The calculation is that it will ultimately be less expensive to ignore the patent rights of innovations than to take a license in an arm’s length negotiation. Over the last 15 years, that calculus has largely proven correct, with changes to numerous laws and the introduction of additional administrative processes all conspiring to make it easier to challenge issued patents. This means that litigation is often the only way for an innovator to protect valuable intellectual property and to stop infringement. Unfortunately, lacking leverage and financial resources, many patent owners cannot stop infringement—in some instances, even after a jury trial.

USPTO Report Underscores Split on State of U.S. Patent Eligibility Jurisprudence

The U.S. Patent and Trademark Office (USPTO) has published its study on patent eligibility jurisprudence in response to a March 2021 request from Senators Thom Tillis (R-NC), Mazie Hirono (D-HI), Tom Cotton (R-AR) and Chris Coons (D-DE). The study, titled “Patent eligible subject matter: Public views on the current jurisprudence in the United States,” is based on more than 140 comments received following a USPTO request of July 9, 2021, and unsurprisingly concluded that many (mostly larger) high-tech and computer-related companies like the current state of the law; life sciences, startups and SMEs do not; but everyone agrees that consistency, clarity and predictability are needed. The study did not make any recommendations, and indicated that the Office will be continuing to solicit feedback via listening sessions and written comments and that it is also broadening the scope of stakeholders it reaches out to.

CAFC Reverses Contempt Finding for Disclosures of Confidential Discovery Information to Develop Joint Defense Strategy

On June 28, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in Static Media LLC v. Leader Accessories LLC reversing a contempt finding entered in the Western District of Wisconsin over alleged violations of a protective order from a design patent infringement case between Static and Leader. Circuit Judge Jimmie Reyna authored a brief dissent from the majority opinion, arguing that Leader’s disclosure of certain confidential information with another company sued by Static for the development of a joint defense strategy was a violation of the district court’s protective order.

The TRIPS Waiver: What Does it Mean to Change the Rules of the Game?

A terrible idea – wayward and ill-conceived, criticized by all economic, political and geopolitical fronts – has come to fruition. The World Trade Organization’s (WTO) TRIPs waiver on patents related to COVID-19 vaccines will disincentivize the entire industry from investing in vaccine production. To understand what happens next, let’s understand history first.

CAFC Sends Centripetal Back to Drawing Board in Case with Cisco Due to Judge’s Stock

Centripetal Networks will have to start from square one in its long-running case against Cisco after the U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday vacated a judge’s decision awarding Centripetal enhanced damages and royalties exceeding $2.75 billion. The CAFC ruled that Judge Henry C. Morgan, Jr. of the United States District Court for the Eastern District of Virginia was disqualified from hearing the case after becoming aware of his wife’s ownership of $4,687.99 in Cisco stock, ultimately reversing the district court’s denial of Cisco’s motion for recusal and vacating all orders and opinions of the court, including the final judgment in favor of Centripetal.