Posts in Patents

ED of Texas Adopts Magistrate’s Claim Construction in Finding No Infringement of Debit Card Patents

On March 16, the United States District Court for the Eastern District of Texas Marshall Division adopted the Report and Recommendation (R&R) of a magistrate judge and granted two motions of non-infringement for Simon Property Group L.P. (Simon) and Blackhawk Network, Inc. (Blackhawk). AlexSam, Inc. filed suit for patent infringement against Simon and Blackhawk, alleging infringement of U.S. Patent No. 6,000,608 (the ‘608 patent). AlexSam asserted that “[t]he ‘608 Patent covers a variety of important technologies relating to the debit card industry,” and “[t]he multifunction card system disclosed in the ‘608 Patent enabled consumers and retailers to use existing point-of-sales devices, the existing banking infrastructure, and a bank identification number (BIN) to perform financial transactions.”

Senators Tell Raimondo COVID Waiver Compromise Would Be a ‘Gift’ to China and Russia

Senators Thom Tillis (R-NC), Tom Cotton (R-AR) and Marsha Blackburn (R-TN) sent a letter yesterday to Secretary of Commerce Gina Raimondo expressing their “grave concerns” with the compromise language agreed on recently in the ongoing talks to waive intellectual property rights for COVID-related technology under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. On March 15, the European Union, United States, India and South Africa announced the compromise language. The text is not final and still must get official approval from all 164 World Trade Organization (WTO) member countries.

Data Show USPTO Patent Pro Bono Program is Working for Women and Minorities

Thirty percent of respondents to a survey of applicants using the U.S. Patent and Trademark Office’s (USPTO’s) Patent Pro Bono Program (PPBP) were African American or Black and 41% were female, according to the latest USPTO Director’s Blog. The demographic data were collected voluntarily in 2021from the 21 regional programs that administer the PPBP as part of the broader goal of diversifying the patent system. A 2019 USPTO study found that only 12.8% of all inventors named on U.S. patents are women, while a Harvard study said that white individuals are three times more likely to invent than Black individuals.

VLSI/Fortress IP Patents Likely Invalid Despite OpenSky’s Bad Behavior

You’ve probably heard about all of the VLSI drama: the eye-popping $2.18 billion judgment won by non-practicing entity VLSI (funded by Fortress IP), mysterious post-judgment inter partes reviews (IPRs) filed against the VLSI patents, and finally the now-notorious email from OpenSky offering to disrupt their own IPR in exchange for a fee. Folks have jumped all over the email from OpenSky for its obvious bad behavior, but they are also using it as an indictment of the entire Patent Trial and Appeal Board (PTAB). What is noteworthy here is not the email—this type of behavior is extremely rare. The real story here is what the system got right, and where it failed.

The Hudson Institute Memo Draws the Wrong Conclusions from Discrepancies in I-MAK’s Data

The debate around whether patents are unnecessarily propping up drug prices has been simmering for years. A recent policy memo from the Hudson Institute has thoughtfully raised concerns about the data underlying this debate, and the memo made its way up to the U.S. Senate Judiciary Subcommittee on Intellectual Property. While the memo may have successfully poked holes in some of the data, it draws questionable conclusions regarding what those holes might mean. Unpacking this debate is therefore necessary to guide the correct policy on the intersection of patents and drug prices.

Supreme Court Denies Petitions Challenging NHK-Fintiv and Section 285 Exceptionality Determination

On March 21, the U.S. Supreme Court issued an order list denying petitions for writs of certiorari in a pair of patent cases that had worked their way up to the nation’s highest court. In denying these petitions, the Supreme Court turns down Intel Corporation’s challenge to the NHK-Fintiv discretionary denial framework at the Patent Trial and Appeal Board (PTAB), while the Court also dismissed an appeal asking whether a patent infringement case can be determined to be exceptional for purposes of awarding attorney’s fees without a finding that the patent owner engaged in litigation misconduct.