Posts in US Supreme Court

Blame for the Weakened U.S. Patent System Cannot Be Pinned on the PTAB Alone

It is time to recognize the elephant in the room. The Patent Trial and Appeal Board (PTAB) is broken. And, if we want to be perfectly fair and reasonable in our assessment of the reasons that the PTAB is failing, the blame must trace all the way back to Congress. The creation of three new ways to invalidate patent rights was at best ill-conceived. The manner in which it was done clearly put the finger of infringers on the scale of justice. The creation of an open-ended second window for patents to endlessly be challenged without title ever quieting and ownership ever settling is making a mockery of patent ownership.

Patent Eligibility Under Section 101: Has the United States ‘TRIPPED’ Up?

The present U.S. eligibility jurisprudence, and especially that of the Federal Circuit, not only creates serious issues of U.S. domestic law but also arguably places the U.S. in violation of its obligations under the TRIPS treaty with respect to inventions at both ends of the subject-matter spectrum. Acts of Congress, including Section 101, where fairly possible, ought to be construed so as not to conflict with international law or with an international agreement with the United States, particularly where, as with TRIPS, the United States was the moving spirit behind the treaty. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Although there may have been room for doubt prior to the en banc refusal in Athena and the Australian decision in Ariosa, it is submitted following Judge Moore’s dissent that the situation has become a virtual certainty.

Romag Fasteners: IPO Departs From Other Amici in Urging SCOTUS to Require Willfulness to Award Trademark Profits

The Intellectual Property Owners Association and four other associations have filed amicus briefs with the Supreme Court in the case of Romag Fasteners v. Fossil, Inc., Fossil Stores, I. Inc., Macy’s Inc, and Macy’s Retail Holdings, Inc. The case will examine whether lower courts have discretion under the Lanham Act with respect to how to award damages in trademark infringement cases, or whether courts are required to establish that the infringement was willful before awarding profits. While the American Bar Association (ABA), the International Trademark Association (INTA), the American Intellectual Property Law Association (AIPLA) and the Intellectual Property Law Association of Chicago (IPLAC) support adopting a more flexible approach that would not make willfulness a prerequisite to recover profits, IPO argues that the plain language of the statute necessitates such a requirement.

The Great Escape: Efficient Infringers Increasingly Seek to Abuse Antitrust Law

Last week the United States Court of Appeals for the Federal Circuit issued an important decision that might be easy to overlook. In Intellectual Ventures I LLC v. Capital One Financial Corporation, the Federal Circuit dodged the antitrust question presented by finding that a prior ruling had collateral estoppel effect. Still, the arguments raised by Capital One against Intellectual Ventures are part of a disturbing trend. Unwilling licensees who engage in a scheme of efficient infringement to avoid paying for patent licenses are increasingly looking to creative antitrust theories to escape liability for their actions. Efficient infringement is a cold-hearted business calculation whereby businesses decide it will be cheaper to use patented technology without paying than to license it and pay a fair royalty to the patent owner. This calculus is made on the part of large entities who realize there are a certain number of patent owners that are just simply not going to assert their patents for one reason or another, frequently because they don’t have the money to do so. Then there is another group of those that will assert their patents but will not win. The calculation progresses to realize that there is a small group of those who are likely to both assert patents and prevail, thanks to all the hurdles put in place (i.e., patent eligibility challenges, the Patent Trial and Appeal Board, etc.). The calculation further recognizes that even if a patent owner prevails, a permanent injunction is virtually impossible to obtain as the result of the Supreme Court’s decision in eBay v. MerchExchange, and damages are likely to be minimal thanks to a continual judicial erosion in damages available to victorious patent owners. This cold-hearted business approach to using intellectual property without paying has gone on for decades, but with the weakened state of the U.S. patent system since 2006, it has grown progressively worse.

Trading Technologies Asks Supreme Court to Restore Congress’ Purpose in Creating the Patent Act

Trading Technologies International, Inc. (TT) has filed a petition for certiorari with the U.S. Supreme Court asking it to clarify U.S. patent eligibility law, including whether the Court should overrule its “abstract idea” precedents. The petition relates to the Federal Circuit’s April 2019 decision siding with the Patent Trial and Appeal Board (PTAB) that certain claims of TT’s patents for graphical user interfaces (GUI) for electronic trading were eligible for covered business method (CBM) review and also patent ineligible. IPWatchdog has written much about this and related Trading Technologies cases. Though earlier Federal Circuit panels had found other TT patents not eligible for CBM, as the court found they were directed to technological inventions, Judge Moore said in her April opinion that the patents at issue here—numbers 7,533,056, 7,212,999, and 7,904,374—”relate to the practice of a financial product, not a technological invention,” and that “the specification makes clear that the invention simply displays information that allows a trader to process information more quickly.”

Ordinary Observer Test Is ‘The Sole Controlling Test for Determining Anticipation of Design Patents’

In Curver Luxembourg SARL v. Home Expressions, Inc. (CAFC, Sept. 12, 2019)—which already has become a rather infamous design patent case—the claims at issue recited an “ornamental design for a pattern for a chair,” while the figures illustrated only the fabric pattern, not associated with any article of manufacture. The alleged infringing article was a basket, and the Federal Circuit held “because we agree with the district court that the claim language “ornamental design for a pattern for a chair” limits the scope of the claimed design in this case, we affirm.” While the case may thus be disheartening for those who would seek to broaden the scope of protection obtainable via a design patent to surface ornamentation separable from an article of manufacture (which the Court takes care to say is within the sole purview of copyright protection), what the Court takes on one hand, it gives on another.