Other Barks and Bites for Friday, June 15: U.S. Chamber Calls Out Senator Sanders for Abuse of Power, USPTO Creates Process to De-Designate Precedential PTAB Decisions, and Roche Sues Indian Sellers of Expired Accu-Chek Devices

This week in Other Barks and Bites: the D.C. Court of Appeals finds that the Administrative Procedures Act waives sovereign immunity in the context of copyright rule promulgation; the U.S. Chamber of Commerce calls out Sen. Bernie Sanders for abusive subpoenas targeting a pharmaceutical executive at Novo Nordisk; the U.S. Patent and Trademark Office establishes an online process for de-designating precedential decisions of the Patent Trial and Appeal Board; Oracle stock rose by 13% in Wednesday trading following the announcement of a deal with OpenAI; members of North Carolina State University’s 1983 NCAA champion men’s basketball team sue the NCAA over the use of name, image and likeness rights; and Martin Shkreli is sued for improperly releasing copies of a one-of-a-kind Wu-Tang Clan album.

‘MacGyvering’ Inventorship – It’s Much More than a TV Trope

Richard Dean Anderson popularized the famous character of Angus MacGyver in the 1980s TV Show, MacGyver. The character of MacGyver overcame obstacles by making equipment out of anything he could find, such as a paper clip, a piece of gum, and a tennis shoe – all compiled miraculously to somehow defeat the bad guy and save the day. While MacGyver is a TV institution that demonstrates the resourcefulness of the inventor persona in popular media, in patent law, inventorship is more complex and requires the application of U.S. Codes and case law with a thorough factual analysis of the contributions of the inventors.

SCOTUS Reverses CAFC’s ‘TRUMP TOO SMALL’ Ruling: Names Clause is Constitutional

The U.S. Supreme Court has reversed the U.S. Court of Appeals for the Federal Circuit’s 2022 decision in Vidal v. Elster, which held the U.S. Patent and Trademark Office’s (USPTO’s) application of Section 2(c) of the Lanham Act to reject the mark TRUMP TOO SMALL was unconstitutional. The High Court today held that the Lanham Act’s names clause does not violate the First Amendment. While all of the justices agreed that the names clause does not violate the First Amendment, they differed on the proper analysis to reach that conclusion.

Federal Circuit Issues Mixed Ruling on Trade Secret Misappropriation of Blood Analyzer

The U.S. Court of Appeals for the Federal Circuit (CAFC), on June 11, 2024, affirmed-in-part and reversed-in-part a U.S. district court ruling surrounding an alleged trade secret misappropriation. In 2014, Alifax, a company that specialized in producing clinical instruments, filed a lawsuit against Alcor Scientific (“Alcor”), which operated in the same general area of clinical development, alleging trade secret misappropriation under the Rhode Island Uniform Trade Secrets Act (RIUTSA).

Ethical Dimensions of Patents: The Impact of the WIPO Treaty on Genetic Resources

The morality of patents remains a pressing issue, particularly concerning genetic resources and traditional knowledge. Ethical concerns persist due to the historical exploitation of these resources without proper recognition or compensation to indigenous communities. Article 1 of the World Intellectual Property Organization (WIPO) Treaty on Patents, Genetic Resources, and Traditional Knowledge outlines its objectives, emphasizing transparency, fairness, and the protection of rights for indigenous communities. Despite progress, differing legislative and judicial approaches across jurisdictions often fail to uniformly protect these communities’ rights.

USPTO Strikes Expanded Paneling Option from New PTAB Operating Procedure

The U.S. Patent and Trademark Office (USPTO) today announced that it has updated its Patent Trial and Appeal Board (PTAB) Standard Operating Procedure (SOP 1) on “Assignment of Judges to Panels.” The 16th revisions to SOP 1 deletes a section on “expanded panels,” among other changes. According to the USPTO’s announcement, the revision “aligns with recently updated Paneling Guidance, Standard Operating Procedure 4, and Director Review procedures.” Just yesterday the Office issued a final rule on pre-issuance circulation and internal review of PTAB decisions.

AI and the Word that’s Been Missing from the Patent Eligibility Case Law

The artificial intelligence (AI) revolution poses new problems for deciding patent eligibility, problems for which the current body of U.S. Court of Appeals for the Federal Circuit case law and U.S. Patent and Trademark Office (USPTO) policy is ill-equipped to address. In particular, Alice Step 2, one of the most misunderstood doctrines in all of patent law, has the potential to become even more muddled when considering AI inventions. This is because the case law, as well as examiner practice, have tended to over-emphasize the importance of the conventionality or genericness of computers recited in the claims or described in the specification.

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