Posts in IPWatchdog Articles

This week saw 26 Patent Trial and Appeal Board (PTAB) filings (all inter partes reviews [IPRs]) and just 28 new district court complaints—and notably and unusually, no new IP Edge filings. Most of the filings were related to three entities, the now-sprawling Bell Semiconductor campaign added a slew of new defendants, and Cedar Lane and Buffalo Patents, both campaigns comprised entirely of old Intellectual Ventures (IV) patents (both almost certainly transferred under IV’s late-stage low-cost time-limited backend deal structure). There was one (non-Fintiv) denial at the Board and a few IV patents were challenged directly by Honda; some pharmaceutical challenges were filed, but otherwise, it was a relatively quiet week in new filings, particularly in the district court (it’s the first week in as long as I can remember when there didn’t appear to be a single IP Edge filing, which certainly contributes to the lull).

Earlier this week, IPWatchdog hosted a webinar sponsored by the Innovation Alliance, now available to view for free here, in which panelists drew a roadmap for fixing the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB). Ultimately, they said: 1) thoughtfully exercise discretion to deny the inter partes review (IPR) petitions to ensure quiet title, 2) apply the clear and convincing standard of proof for invalidity to match the district court standard, 3) change the joinder rule so that time-barred parties aren’t allowed to join IPRs, 4) create a standing requirement to bring IPRs to end gaming by uninterested third-parties and 5) increase transparency at the PTAB— for example, with respect to panel changes and transfers. The participants who delivered these solutions were Dr. Marian Underweiser, an Intellectual Property Professional and former IBM Executive, Hon. Kathleen O’Malley (CAFC, ret.), currently Of Counsel with Irell & Manella, Jayson Sohi, the Director of IP Strategy at Netlist, and Gene Quinn, President & CEO of IPWatchdog, Inc.

The People’s Vaccine Alliance, a coalition of over 100 organizations, issued a statement this week alleging that the pharmaceutical industry is attempting to tighten its control of the world’s pandemic response plans. In the statement, the organization argues that “enshrining pharmaceutical companies’ demands in a pandemic treaty or other pandemic preparedness plans would normalize global inequalities and tie the hands of governments in future health crises.” The Alliance released the statement in response to the International Federation of Pharmaceutical Manufacturers & Associations’ (IFPMA) July statement titled the Berlin Declaration – Biopharmaceutical Industry Vision for Equitable Access in Pandemics during the World Health Summit, where stakeholders from politics, science, the private sector, and civil society gathered in Berlin from October 16-18.

The United States Patent and Trademark Office (USPTO) is overestimating the term of some of the patents it issues. The general rule is that a patent expires 20 years after the priority date of the application. This rule means that the longer the USPTO is processing an application, the fewer days of term the patent will enjoy if granted. To prevent substantial decrease in the term, Congress instructed the USPTO to extend the life of patents that have suffered delays during prosecution. This extension is known as Patent Term Adjustment (PTA). In addition, Congress burdened the agency with telling the patent applicants how much PTA they are entitled to. To tackle the resulting workload, the USPTO designated the task of applying complex PTA rules to a computer software.

On October 3, the U.S. Supreme Court once again requested the views of the Solicitor General (SG) in a Section 101 case, Interactive Wearables v. Polar Electric Oy. Last summer, there was excitement in the patent community when the SG, whose advice the Court usually follows, recommended granting review in American Axle v. Neapco. Although that petition was ultimately denied, this new case purports to fit the mold of American Axle. This has led some to hope that Interactive Wearables will also get the nod from the SG—and perhaps High Court review. To those eager for a Supreme Court decision that reins in patent eligibility jurisprudence, however, I regret to inform you that Interactive Wearables will not be that case. This case is quite unlike American Axle—and its claimed invention is in the heartland of what should be ineligible subject matter.

It is sometimes said that a lie gets halfway around the world before the truth has a chance to get its pants on. We have found, however, that it is often the slow-and-steady truth that wins the race in our deliberative justice system, which for patents has both administrative and judicial components. Our case-in-point is the Federal Circuit’s recent decision in Cooperative Entertainment, Inc. v. Kollective Technology, Inc., which reversed a Rule 12(b)(6) dismissal on patent ineligibility under 35 U.S.C. § 101. This case demonstrates how an invention that is potentially assailable on eligibility grounds can be given its best chance by a focused, consistent and synergistic patent prosecution and litigation strategy. Thus, it is not coincidental that your authors are a patent litigator and a patent prosecutor, respectively.

Last week, the leadership of the Judiciary Committees and IP Subcommittees from both houses of Congress received letters seeking to address misinformation being presented by critics of the Patent Eligibility Restoration Act, a bill proposed by Senator Thom Tillis (R-NC) that would abrogate several U.S. Supreme Court rulings on patent eligibility under 35 U.S.C. § 101. Both the Council for Innovation Promotion (C4IP) and University of Akron Law Professor Emily Michiko Morris not only supported Congressional passage of Tillis’ patent eligibility bill but also pushed back on criticisms that the bill would enable biotech firms to patent genes as they exist in the human body.

Systemic-level studies and data regarding impact on investment and innovation, as detailed in Part II of this series, are not the only way to demonstrate the substantial harm that the current state of patent eligibility has inflicted on the U.S. innovation ecosystem. Other robust evidence shows that current Section 101 law has harmed innovation by removing the incentives to develop and commercialize particular inventions of public importance. As another form of harm, the vagueness and breadth of the Alice/Mayo framework have also enabled accused infringers to transmogrify Section 101 into a litigation weapon in inappropriate cases that has created unnecessary burdens and costs on innovators and the courts.

Yesterday, the United States Intellectual Property Alliance (USIPA) issued the results of a nationwide survey designed to determine the level of intellectual property awareness among American adults. Perhaps unsurprisingly, USIPA’s survey found that, while most American believed they understood IP, seven out of 10 survey respondents could not identify examples of intellectual property when asked. This new research should add new urgency to the efforts of IP advocates who are trying to increase participation in the U.S. IP system.

This week in Washington IP news, the United States Patent and Trademark Office (USPTO) is hosting events on blockchain and drafting provisional patent applications, while the Brookings Institution is hosting an event on the regulation of cryptocurrency markets. Also in the cyber world, three authors will make their case for a more holistic and aggressive U.S. approach to cyberspace strategy at The Heritage Foundation.

Alice Corp v. CLS Bank Int’l, 134 S. Ct. 2347 (2014) sent rejections under 35 U.S.C. § 101 skyrocketing from under 10,000 per year prior to the Alice decision to nearly 35,000 the year the Supreme Court handed down its decision (2014). Peaking at just over 100,000 rejections in 2018, the USPTO’s January 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG) helped to stabilize and ultimately lower the number of rejections under Section 101 to just over 20,000 in 2021. Though this number may continue to drop – the data on Section 101 rejections for 2022 is not yet complete – one thing is for sure: The number of rejections under Section 101 post Alice still far outnumber the Section 101 rejections made prior to Alice by at least 10,000 per year. As illustrated in Fig. 1 (data gathered using juristat.com), the majority of rejections under Section 101 made since 2014 are still Alice rejections, which leaves room for this number to decrease further.

As discussed in Part I of this series, the process of implementing IP management software (IPMS) poses many complexities and dangers. To ensure as successful an IPMS implementation as possible, companies and law firms should apply best practices early on. The earlier they begin taking these steps, and the more deeply they dig into the issues, the greater their chances of avoiding the most common implementation pitfalls.

The International Center for Law and Economics (ICLE) released a white paper on Thursday arguing that Section 512 of Title 17 of the Copyright Act has been a failure, and it should be reevaluated and overhauled. Congress passed Section 512 as part of the Digital Millennium Copyright Act (DMCA), and authors Kristian Stout and Geoffrey Manne argue the federal courts have written out key provisions in the law. Stout and Manne write that Section 512 has succeeded in allowing online service providers (OSPs) such as social media companies to grow and thrive by providing a safe harbor provision as long as they take down infringement promptly. However, the authors argue that the law has failed to provide proper incentives and systems to prevent digital piracy

This week in Other Barks & Bites: the Third Circuit affirms a partial denial of preliminary injunctive relief in a trade secret case involving processors for cremation equipment; Netherlands’ patent office announces that oil and gas patents held by major Russian energy firms are unenforceable in that country; the Federal Circuit finds that patent claims covering methods of digital recording physical activity survive Alice/Mayo at step two on the pleadings over a dissent from Judge Hughes; a joint study by the European Patent Office and the European Union Intellectual Property Office shows that 82 million EU jobs are being supported by IP-intensive industries; the U.S. Patent and Trademark Office announces a webinar on its request for comments on initiatives for robust and reliable patent rights; and both the Federal Trade Commission and U.S. Department of Justice participate in policy dialogues on digital competition with counterparts in the European Union and the Group of Seven.

Autonomous vehicles are paving the way as the next big innovation in personal transportation. With new technology, first comes the excitement of breakthroughs in any industry. Then comes the patent litigation arguments over who owns the technology and who can profit off the patents related to the technology. We are seeing this pattern again and perhaps the beginning of the self-driving cars patent wars. Earlier this year, the U.S. Court of Appeals for the Federal Circuit upheld the patentability of all challenged claims in a patent held by Velodyne LiDAR, Inc., one of just a handful of companies that makes LiDAR (light detection and ranging) systems for self-driving cars.