Posts Tagged: "patents"

Petitioner Distances Eligibility Case from American Axle, Imploring SCOTUS to Weigh in on ‘Quasi-Enablement’ Analysis

Interactive Wearables, the petitioner in yet another patent eligibility case that the U.S. Supreme Court is being asked to review, filed a reply brief on July 11 distancing its petition from that of American Axle & Manufacturing, Inc.’s, which was denied certiorari on June 30, 2022. The brief characterizes U.S. patent eligibility doctrine as being “perilously fractured” and narrows its arguments to focus on the third question presented in its petition, since the first two were addressed, and have now been rejected by the Court, in the American Axle case.

The Case for Patenting AI: U.S. Patent Laws Better Get Smart or Get Left Behind

The idea of patented inventions brings to mind machines fully realized – flying contraptions and engines with gears and pistons operating in coherent symphony. When it comes to artificial intelligence (AI), there are no contraptions, no gears, no pistons, and in a lot of cases, no machines. AI inventors sound much more like philosophers theorizing about machines, rather than mechanics describing a machine. They use phrases like “predictive model” and “complexity module” that evoke little to no imagery or association with practical life whatsoever. The AI inventor’s ways are antithetical to the principles of patent writing, where inventions are described in terms of what does what, why, how, and how often.

Federal Circuit Denies Thales’ Request to Bar Philips from Heading to the ITC

The U.S. Court of Appeals for the Federal Circuit today held in a precedential decision that Thales DIS AIS Deutschland GMBH cannot stop Philips from seeking an exclusion order at the International Trade Commission (ITC) to enjoin Thales from importing its products relating to wireless network technology into the United States.

‘A Study in Scarlet’—Powers of Attorney and USPTO Rulemaking, Part I: A Hidden Guidance Document

This two-part article explains the United States Patent and Trademark Office’s (USPTO’s) practices with respect to powers of attorney. The pattern of neglect of administrative law identified here with regard to powers of attorney alone imposes a $30 to $40 million per year excess burden on the public. For the USPTO’s rules as whole, the costs are about $2 billion per year. Over the last 18 months, about 100 patent attorneys signed on to letters to ask the USPTO to do the simple right thing: conform its practices to the rule of law.

The PTAB Reform Act Will Make the PTAB’s Problems Worse

Recently, we submitted comments for the record to the Senate Judiciary Committee’s IP Subcommittee in response to its June 22 hearing on the Patent Trial and Appeal Board (PTAB), titled: “The Patent Trial and Appeal Board: Examining Proposals to Address Predictability, Certainty and Fairness.” The hearing focused on Senator Leahy’s PTAB Reform Act, which among other changes, would eliminate the discretion of the Director to deny institution of an inter partes review (IPR) petition based on an earlier filed district court litigation involving the same patents, parties and issues. Here is the net of what we told them:

Federal Circuit Holds Transcription Error Cannot Be Used to Prove Obviousness

The U.S. Court of Appeals for the Federal Circuit (CAFC) earlier today held in a precedential decision that a typographical error in a prior art document would have been dismissed by a person of ordinary skill in the art (POSITA) and thus could not be used to prove obviousness. The appeal was brought by LG Electronics, Inc, against ImmerVision, Inc. and related to claims of U.S. Patent No. 6,844,990 for “capturing and displaying digital panoramic images.”

Fifth Circuit Panel Questions Appellate Jurisdiction of US Inventor’s APA Claims Over Fintiv’s Lack of Notice and Comment Rulemaking

On July 6, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in US Inventor v. Hirshfeld, an appeal from a lawsuit first filed in February 2021 to challenge the U.S. Patent and Trademark Office’s (USPTO’s) development of the Fintiv framework for discretionary denials of petitions for Patent Trial and Appeal Board (PTAB) proceedings. Although the appeal comes to the Fifth Circuit following the district court’s dismissal due to the plaintiffs’ lack of Article III standing, much of the oral arguments focused on whether the Fifth Circuit or the U.S. Court of Appeals for the Federal Circuit had proper jurisdiction to hear the appeal.

Patent Filings Roundup: Suits Explode at End of Q2; Fortress 4G LTE Multi-District Litigation Against Auto Industry Goes to Michigan; Rare Derivation Denial

Recession woes, war in Ukraine, and rising inflation have to date had little effect on the patent litigation marketplace—emphasizing the “non-correlated” in “non-correlated asset”—and it was borne out in the courts last week, where litigation exploded, with 135 new patent filings, more than double the average—though this keeps with a trend of seeing filings spike at the ends of annual quarters. That spike is normally, as it is here, driven by dozens of IP Edge filings across various subsidiaries (here, some of them going after local and regional newspapers struggling to stave off bankruptcy). This week also saw 82 denials of Patent Trial and Appeal Board (PTAB) petitions, with the roughly average number of petitions (2 post grant reviews and 34 inter partes reviews [IPRs]).

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.”

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.

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.

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.