Posts in Patents

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a decision today in In re Magnolia Medical Technologies, Inc., affirming a Patent Trial and Appeal Board (PTAB) decision from an ex parte reexamination that found claim 1 of U.S. Patent 10,039,483 anticipated and therefore unpatentable.

Broad functional genus claiming was previously a standard strategy for innovators seeking IP protection for antibodies. Prior guidance from the USPTO, including the “newly characterized antigen” test, encouraged broad claiming of antibodies based upon their function alone. For decades, that effectively allowed innovators to claim much more than they in fact discovered in practice. In the wake of the Supreme Court’s Amgen decision, courts have adopted the reasoning articulated in Amgen to strike down functional genus antibody claims for lacking either enablement or written description.

A faith-technology company has done something the IP world should notice. Gloo — a Boulder, Colorado, firm that serves churches, ministries, and Christian universities, and now trades on the Nasdaq — built a benchmark it calls Flourishing AI Christian, or FAI-C. The finding is blunt: Today’s leading large language models, tested on questions of meaning, character, and faith, come up short. On a 100-point flourishing scale, the frontier models averaged 61. On the faith dimension, they scored worst of all.

In any patent dispute, the strength of the patent still matters. But increasingly, it is not the only thing that matters—or even, in some cases, the thing that matters most. That means where a patent dispute takes place cannot be a tactical afterthought or viewed as a choice of federal district courts in the United States alone. This is true today more than ever because despite patents ostensibly being property—at least according to the Patent Act—which tribunal and which judges make the ultimate decisions affecting the patent often matter most of all because patents and patent enforcement have become driven by ideology and the type of fervor normally reserved highly emotionally charged discussions, like religion and politics.

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a decision today in Dental Monitoring SAS v. Align Technology, Inc., affirming a district court ruling that found several patent claims covering deep learning based dental image analysis invalid as directed to ineligible subject matter under Section 101. Dental Monitoring SAS owns U.S. Patent 11,049,248 and U.S. Patent 10,755,409, both of which relate to dental arch image analysis. The ‘248 patent covers “a method for assessing the shape of an orthodontic aligner using a deep learning device,” while the ‘409 patent covers a method for acquiring and analyzing an image of a dental arch using the same type of device.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today denied a request for mandamus relief by Lambeth Magnetic Structures, LLC, who asked the CAFC to direct the  U.S. District Court for the Western District of Pennsylvania to vacate its order staying a patent infringement suit pending resolution of an ex parte reexamination (EPR) of the asserted patent claims.

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a decision today in Linfo IP, LLC v. Trustpilot, Inc., dismissing an appeal brought by Linfo IP, LLC as moot. The dismissal followed Linfo and Trustpilot, Inc.’s settlement of their dispute while the appeal was still pending.

On July 2, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the dismissal  of Etison LLC d/b/a ClickFunnels’ patent infringement suit against HighLevel Inc., holding the disputed website creation patents claim ineligible subject matter under 35 U.S.C. § 101. While the CAFC found that the district court erred by treating a single claim as representative of all asserted claims without adequately addressing ClickFunnels’ argument that the two dependent claims at issue contained a distinct limitation,  the panel ultimately concluded that the error was harmless

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision Thursday in TrackTime, LLC v. Amazon.com Services LLC, vacating a district court’s indefiniteness ruling on one TrackTime patent. It also affirmed a jury verdict of invalidity on a related patent asserted against Amazon.com Services LLC and Audible, Inc.

Over the past year, while advising clients on standard essential patent (SEP) matters and following the rapid development of SEP litigation in Brazil, I found myself revisiting a question that foreign clients often ask: Is Brazil really a jurisdiction where patent rights can be effectively enforced? The question is particularly common among technology companies evaluating enforcement strategies across multiple jurisdictions. While Brazil is one of the world’s largest markets, many foreign patent owners remain less familiar with its courts than those of the United States, Europe, China or Japan. Recent SEP litigation provides an interesting lens through which to answer that question.

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision today in Otsuka America Pharmaceutical, Inc. v. Hetero Labs Limited, affirming a preliminary injunction that blocks Hetero Labs Limited from launching a generic version of the neurological drug Nuedexta. The court also vacated a district court order that had excused Otsuka from posting a bond pending appeal, remanding the issue for further proceedings. Circuit Judge Dyk dissented in part from the majority’s claim construction and would have reversed the injunction.

Most patent attorneys know the Jerome Lemelson story—the prolific inventor whose aggressive use of continuation and continuation-in-part applications resulted in some patents remaining pending for decades, earning the label of “submarine patents.” While Lemelson’s tactics sparked controversy and eventual legislative reforms aimed at curbing undue delays, one principle emerged clearly from his experiences: new matter in patent law must receive a new priority date…. To patent applicants, 35 U.S.C. § 132(a) means that the detailed description of their non-provisional patent applications must be perfect when filed, and that even if new information is discovered after filing, no changes can be made. In practice, this is an extremely harsh standard, and is disproportionately punitive to small business inventors who lack the deep pockets to absorb repeated filing costs and years of delay.

Patent monetization is often discussed as if the hard part begins when a patent owner makes the decision to license, sell, finance, or enforce its patent assets. That is a mistake and demonstrates a lack of understanding of the difficulties and complexities of patent monetization. By the time a patent owner is sitting across the table from a potential licensee, buyer, lender, litigation funder, or accused infringer, much of the outcome has already been fully determined. The real work begins years earlier in preparation for monetization.

On the same day it granted a trademark petition, the U.S. Supreme Court denied certiorari in a number of patent cases as its term nears an end, including the closely-watched case of Hyatt v. Squires, which challenged the U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) approach to the doctrine of prosecution laches. In addition to the Hyatt case, the Court also denied cert today in Finesse Wireless LLC v. AT&T Mobility LLC, et. al.; Polar Electro Oy v. Firstbeat Technologies Oy; and Ortiz & Assoc. Consulting, LLC v. Vizio, Inc.