The Federal Government’s Drug Price Negotiation Program Would Likely Violate Its Own Antitrust Laws

A recent U.S. Court of Appeals for the Third Circuit ruling upholding the federal Inflation Reduction Act (IRA)’s drug price negotiation program has been appealed to the U.S. Supreme Court, one of many challenges to the Act’s constitutionality. The IRA requires drugmakers to sell selected patented drugs to the government for its Medicare Parts B & D programs at a stipulated “maximum fair price”. If they don’t agree to these prices, then they face tax penalties on sales of the drug exceeding their profits from it, or the exclusion of all their drugs from Medicare and Medicaid purchases. This would foreclose access to up to 160 million patients, accounting for around 40% of US prescription drug spending or 20% of global prescription drug spending. US government purchases are valued at $200 billion annually.

Fourth Circuit Partially Reverses District Court in Latest Chapter of Decade-Long Blackbeard Copyright Case

On Friday, January 23, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in Allen v. Stein that likely ends a decade-long copyright battle over documentary footage of a state-sponsored salvage project exhuming a shipwreck associated with the famed pirate Blackbeard. Reversing and vacating rulings by the Eastern District of North Carolina, the Fourth Circuit found that an erroneous legal standard was used in allowing Allen to pursue a new theory for his copyright claims, remanding the case to the district court with directions to dismiss Allen’s complaint with prejudice.

Federal Circuit Vacates PTAB Decision, Finding Board Erred in Requiring Motivation to Combine

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday vacated and remanded a final written decision from the Patent Trial and Appeal Board (PTAB) in an inter partes review (IPR) proceeding. The court concluded that the Board erred by requiring petitioner Guardant Health, Inc. to show a motivation to combine steps that were already disclosed in sequence in a single prior art reference.

Undisputed Testimony on Portability of Setting Apparatus Dooms Orange’s CAFC Appeal

On Friday, the U.S. Court of Appeals for the Federal Circuit issued a nonprecedential ruling in Orange Electronic Co. Ltd. v. Autel Intelligent Technology Corp., Ltd. reversing the Eastern District of Texas’ denial of judgment as a matter of law (JMOL) to defendant Autel. The Federal Circuit did not reach Orange’s appeal of Eastern Texas’ JMOL ruling of noninfringement after finding that Autel’s asserted prior art met every limitation of the asserted claims, leading the appellate court to overturn the district court on obviousness instead.

Other Barks & Bites for Friday, January 23: USAA Petition on Section 101 Distributed for Conference; Fifth Circuit Says Trade Secret Claimants Must Apportion Damages; TRAIN Act Introduced in House

This week in Other Barks & Bites: a petition for writ filed by USAA to challenge the Federal Circuit’s application of Section 101 is distributed for conference at the U.S. Supreme Court; the TRAIN Act is introduced into the U.S. House of Representatives to give copyright owners the right to subpoena records for generative AI training; the USPTO extends the Patent Prosecution Highway program with other IP5 offices; the Federal Trade Commission files a notice of appeal to challenge its unsuccessful antitrust suit against Meta’s acquisitions of WhatsApp and Instagram; the Fifth Circuit rules expressly for the first time that parties claiming trade secret misappropriation must apportion their damages claims to exclude product value that is not attributable to the misappropriated trade secrets, and more.

CAFC Affirms Rule 12(b)(6) 101 Dismissal for Google in Precedential Ruling on Software Claims

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday, January 22, issued a precedential decision affirming a district court ruling that granted Google’s motion to dismiss a patent owner’s infringement suit for failure to state a claim. The CAFC agreed with the district court that the software claims in question were directed to a patent-ineligible abstract idea. The opinion was authored by CAFC Chief Judge Moore and joined by Judges Hughes and Stoll.

Creators Launch Campaign to Counter Big Tech’s Alleged AI Copyright Theft

On January 22, the Human Artistry Campaign, on behalf of a broad cross-section of the American creative community, launched a new advocacy campaign, titled “Stealing Isn’t Innovation.” The campaign’s core message is a direct protest against the “illegal mass harvesting of copyrighted works” by large technology companies to build and train their Generative Artificial Intelligence (GenAI) platforms.

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