Steve Brachmann

This week in Other Barks & Bites: the Fifth Circuit nixes an appeal lodged by PhRMA and other drugmaker industry organizations against the Medicare drug negotiation program under the Inflation Reduction Act; the Ninth Circuit finds that Boeing’s patent inventorship claims are not compulsory to Zunum Aero’s trade secret misappropriation case;

Yesterday, the U.S. Patent and Trademark Office (USPTO) announced that the agency had designated as informative a Patent Trial and Appeal Board (PTAB) decision in an ex parte appeal reversing an examiner’s rejection of patent claims directed to the isolation and detection of microRNA (miRNA) to determine a patient’s risk of radiation exposure for improper Markush groupings. Drawing primarily upon case law from the predecessor to the U.S. Court of Appeals to the Federal Circuit, the informative designation is notable for its alignment with recent Federal Circuit case law encouraging flexibility in Markush grouping analyses.

On Friday, the U.S. Court of Appeals for the Fifth Circuit issued a ruling answering multiple questions of first impression regarding copyright claims involving building plans, including the scope of protection under the Architectural Works Copyright Protection Act (AWCPA) for constructed buildings and floorplan renderings. Vacating the Western District of Texas’ dismissal of Kipp Flores Architects’ (KFA) copyright infringement claims, the Fifth Circuit affirmed the lower court’s dismissal of KFA’s claims under the Digital Millennium Copyright Act (DMCA) over alleged failures to include copyright management information (CMI) on new floorplans developed from KFA’s technical drawings.

This week in Other Barks & Bites: the Fourth Circuit affirms an injunction against a scheme to divert Turkish-label versions of Biktarvy into the U.S. for sale; the Federal Circuit nixes US Inventor’s challenge to the “right to exclude others” language printed on issued U.S. patents; SK Biopharmaceutical agrees to allow generic Xcopri to enter the U.S. market by 2032; and more.

Yesterday, a petition for writ of certiorari was filed at the U.S. Supreme Court taking aim at the federal judiciary’s conflation of subject matter eligibility with other areas of the patent statute, a growing concern in U.S. patent law since the Court decided Alice v. CLS Bank International (2014). Arguing that the U.S. Court of Appeals for the Federal Circuit used a single observation to answer both steps of the Alice/Mayo inquiry, the petitioner urges the Court to correct the Federal Circuit’s replacement of its flexible two-step Section 101 framework with rigid proxies that avoid the evidentiary safeguards of other patentability statutes.