Posts in Government

The first day of IPWatchdog’s PTAB Masters 2025 wrapped up with a session in which three IP luminaries weighed in on the future of key pending patent legislation, and the Patent Trial and Appeal Board (PTAB) more generally, under a Trump Administration. While the word “chaotic” was used, the panelists provided a roadmap for what the patent community should stay focused on amid all the noise.

The U.S. Court of Appeals for the Federal Circuit (CAFC) handed Apple a win when it confirmed today in a precedential opinion that the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB) has jurisdiction over expired patents brought before it in inter partes review (IPR) proceedings. While the CAFC has previously ruled in appeals from the PTAB involving expired patents, it has not “squarely addressed” the subject until now. The present appeal involves three IPR decisions brought by Apple, Inc. challenging various claims of Gesture Technology Partners’ U.S. Patent No. 8,878,949 for digital camera technology. In three separate decisions issued today, the CAFC affirmed the PTAB’s decisions on a number of other claims.

The U.S. court of Appeals for the Federal Circuit (CAFC) on Friday, January 24, affirmed the Patent Trial and Appeal Board’s (PTAB’s) decisions for Intel in three inter partes reviews (IPRs), on appeal following previous remands back to the Board in December 2021. In its 2021 decision, the CAFC found in part that Intel satisfied Article III standing requirements for appealing from the PTAB but remanded the case on a number of issues. The present appeal involves Qualcomm’s challenge to the PTAB’s new claim construction of the term “hardware buffer” in which it “changed its earlier construction, which excluded ‘a temporary buffer’ from the scope…to a broader construction, under which a ‘hardware buffer’ is ‘not limited to a ‘permanent’ buffer.’”

Donald Trump’s many executive actions on day one of his presidency included implementing a hiring freeze across the federal government. The order put hiring on hold for all Federal civilian employees, until such time as “the Director of the Office of Management and Budget (OMB), in consultation with the Director of OPM and the Administrator of the United States DOGE Service (USDS), shall submit a plan to reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.”

Dear Howard Lutnick [the Trump Nominee for Commerce Secretary]: In this busy transition season from one administration to the next, I am here to help! Lucky you! I have already penned an open letter to [the Department of Government Efficiency] DOGE regarding patents and America. I understand you are now interviewing candidates for the job of Director of the United States Patent and Trademark Office (USPTO). I have been in the fortunate position of having personally observed much of the last four decades of senior USPTO staff and their effectiveness.

Many articles in this forum and others have set forth lofty IP goals for the incoming Trump administration. Most of them are laudable. But there is one area that deserves more attention in terms of IP and tax policy: The United States needs to restore the ability to immediately deduct R&D expenses in the year in which they were incurred. And with all the talk of another tax bill being a top priority of the new Congress, there’s no time like the present.

At 12:01pm on Monday, January 20, 2025, a moment after President Donald J. Trump took the oath of office to start his second term as President, Coke Morgan Stewart was sworn in as the new Deputy Undersecretary of Commerce for Intellectual Property and Deputy Director of the United States Patent and Trademark Office (USPTO). Because she has been named as Deputy Undersecretary and Deputy Director, Stewart will immediately begin serving as Acting Undersecretary and Acting Director of the USPTO.

The U.S. Patent and Trademark Office (USPTO) today announced the findings of two reports conducted by third-party academic economists and submitted to Congress late last year, as required by the Unleashing American Innovators Act of 2022 (UAIA). One report examined the impact of patent application fees on entry into patenting, while the other focused on the USPTO’s fee structure and addressed issues such as “the potential impact on small and micro entities, whether fee structure changes are needed, and recommendations for administrative and legislative action.”

Today, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential ruling in Lynk Labs, Inc. v. Samsung Electronics Co., Ltd. affirming a final written decision by the Patent Trial and Appeal Board (PTAB) that invalidated Lynk Lab’s patent claims to alternating current driven LED lights and circuits. In so ruling, the Federal Circuit agreed with the PTAB’s determination that patent applications can be considered prior art printed publications as of the date of their filing, not their publication.

The U.S. Patent and Trademark Office (USPTO) today released an official Artificial Intelligence Strategy aimed at outlining the challenges faced by the Office both internally and externally, as the reach of AI impacts all aspects of innovation and society. According to the report, AI-related patent applications are up 33% since 2018 and appeared in 60% of all technology subclasses in 2023.

Donald Trump’s appointment of Elon Musk and Vivek Ramaswamy to head the new Department of Government Efficiency (DOGE) has given hope to many people who are impacted by inefficiency in government. One such group is American inventors, who seem to have been forgotten this election cycle in the midst of all the talk concerning those impacted by the Departments of Education and Labor. 

On its way out the door, the Biden Administration just released new guidelines  for those seeking to license inventions made at the National Institutes of Health (NIH) that could lead to new “drugs, biologics (including vaccines) or devices for the prevention, diagnosis or treatment of human disease.” The administration has claimed this is being done “to expand patient access to products that emerge from NIH-owned inventions.” The guidelines apply to all licenses, exclusive and non-exclusive.

In June 2023, as is widely known, more than 50 years of efforts to create a pan-European patent jurisdiction were finally successful and the Unified Patent Court opened its doors. Historically, there were two traditions within Europe, namely, the German principle of separation (often wrongly called also “bifurcation”), according to which infringement actions and nullity actions were separate and handled at different courts, and the otherwise prevailing principle of unity, according to which infringement and validity are examined in the same proceedings. With the creation of the Unified Patent Court, it was believed that a middle ground had been achieved between the two concepts, but the data shows that a “counterclaim gap” may be emerging.

The invalidation rate of patents in America Invents Act (AIA) proceedings, particularly inter partes reviews (IPRs), has been extremely high since the inception of the Patent Trial and Appeal Board (PTAB). Currently, a patent reaching a final written decision in an IPR will on average have 78% of its claims found invalid. Perhaps more surprising, when there is a final written decision, 70% of the time all challenged claims in the patent are found invalid.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed a Patent Trial and Appeal Board (PTAB) decision that upheld an examiner’s rejection of certain claims of a patent application for a cancer immunotherapy invention. The opinion was authored by Judge Lourie.