Posts in Courts

Justice Gorsuch Champions Patent Rights in Recent Dissent

In an energetic dissent in Thryv, Inc. v. Click-to-Call Tech., LP, 590 U.S. __ (Apr. 20, 2020), U.S. Supreme Court Justice Neil Gorsuch provides a compelling defense of patent rights, and he champions a patent owner’s ability to obtain judicial review of certain threshold administrative decisions from the Patent Trial and Appeal Board (PTAB). But while Justice Gorsuch’s insightful analysis is receiving accolades from many in the patent community, it failed to garner any support among his Supreme Court colleagues, save for one, Justice Sotomayor.

Patent Filings Roundup: Patent Suits Hold Steady in the Downturn

The traditional wisdom—that patent suits rise and fall with the economy—seems backward. With some data forthcoming on that point, both during the last downturn and this one, patent filings haven’t slowed much, if any. Last week, 22 Patent Trial and Appeal Board (PTAB) petitions were filed—one post grant review (PGR) and 21 inter partes reviews (IPRs)—just a few more than last week and down substantially now and on the year from the highs of a few years ago. But patent suits haven’t slowed, with 77 complaints nationwide this week, a docket chock full of repeat offenders, mostly comprising NPE aggregators like Oso IP and Equitable IP, with the occasional new campaign listed below or biopharmaceutical litigation, as listed below.

VoIP-Pal Implores Full CAFC to Review Whether a Rule 12 Motion Based on Section 101 Can Be Decided Before Claim Construction

Last week, VoIP-Pal.com, Inc. filed a combined petition for panel rehearing and rehearing en banc with the U.S. Court of Appeals for the Federal Circuit (CAFC) asking for review of a Rule 36 judgment in VoIP-Pal.Com, Inc. v. Twitter, Inc. That judgment affirmed a decision of the U.S. District Court for the Northern District of California that resolved a claim construction dispute in the context of a motion to dismiss under Section 101 as per Rule 12(b)(6) of the Federal Rules of Civil Procedure prior to claim construction. In the petition, VoIP-Pal asserted that the Rule 36 judgment conflicted with CAFC precedent and “the time has come for this court to reconsider whether a Rule 12 motion based on §101 should be decided before claim construction.”

The Thryv Ruling Says the PTAB is Supreme—So Now Let’s Make it Fair

Yesterday, the United States Supreme Court ruled that the Director of the United States Patent and Trademark Office (USPTO), by and through his designees, the Patent Trial and Appeal Board (PTAB), has the unchallengeable authority to institute inter partes review (IPR) proceedings even when they are brought outside the statute of limitations. Thus, the PTAB is now the most important patent court in the United States. This begs an important question that Congress must soon wrestle with regarding access to the PTAB. We have been told over and over again just how essential the PTAB is to the patent system. How necessary the PTAB is with respect to rooting out bad patents that never should have issued. And, honestly, the PTAB has been very, very good at killing patent claims and patents. But there is a fundamental unfairness at the PTAB. If the PTAB is so important, why are the fees so high? If the PTAB plays such a vital role in correcting the egregious mistakes of patent examiners (of which there are apparently many given the number of valuable patents that die upon review), why should only those patents that are owned by independent inventors, universities, start-ups and research and development companies be the targets? What about the truly ridiculous, idiotic patents that are issued to large entities?

Commenters Weigh in On Implications of High Court Ruling in Thryv v. Click-to-Call

Yesterday’s Supreme Court decision in Thryv, Inc. v. Click-to-Call Technologies was in some ways unsurprising, but has generated buzz among the patent community all the same. Many pointed to Justice Gorsuch’s dissent as being particularly poignant, and perhaps indicative of what issues will be front and center in other pending petitions at the Court, such as Arthrex v. Smith & Nephew. IPWatchdog Founder and CEO Gene Quinn said yesterday that, with the Thryv decision, “the Supreme Court sets hundreds of years of fundamental procedural law on its head…. No challenge is proper, and if the PTAB wants to institute outside the statutory time period there is nothing anyone can do.” Here is what some other members of the patent bar had to say.

CAFC Affirms TTAB Decision Finding Likelihood of Confusion Between STRATUS and STRATA Marks

The U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the Trademark Trial and Appeal Board (TTAB) that denied registration of Stratus Networks, Inc.’s trademark (the STRATUS mark) on grounds of likelihood of confusion with UBTA-UBET Communication Inc.’s registered trademark (the STRATA mark). The CAFC reviewed the Board’s factual findings for each of the considered DuPont factors, determined that the Board’s findings were supported by substantial evidence, and found no legal error in the Board’s determination.