Posts in Patents

Every experienced patent attorney knows what is written below is true, but if you want the quiet parts to be spoken loudly, keep reading. This article isn’t revolutionary, but it screams a truth that everyone with an interest in patents needs to understand. Patent invalidation rates by the Patent Trial and Appeal Board (PTAB) are often used to attack the quality of examination by the U.S. Patent and Trademark Office (USPTO). While I agree that there is room for improvement in examination quality, patent invalidation rates should not be used as a barometer for how well the USPTO is examining patent applications.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed a district court’s grant of a motion for judgment on the pleadings that a patent to facilitate interoperability between multimedia systems was directed to an ineligible abstract idea. District Judge Mark Scarsi of the U.S. District Court for the Central District of California, sitting by designation, authored the opinion.

Earlier today the United States filed a Statement of Interest in Radian Memory Systems, LLC v. Samsung Electronics Co. (Civil Action No. 2:24-cv-1073), a patent infringement matter in the United States District Court for the Eastern District of Texas, Marshall Division. The filing was made by attorneys from both the U.S. Department of Justice, Antitrust Division, and the United States Patent & Trademark Office (USPTO), and suggests that the court should find the existence of irreparable harm to be in favor of the patent owner. Ultimately, the government argument boils down to this: Patent infringement in many cases causes irreparable harm to the patent owner, and monetary damages are extremely difficult to calculate and, therefore, monetary damages are insufficient.

This week on IPWatchdog Unleashed, we enter the patent litigation world for a conversation about gaming patent litigation. For too long, popular sentiment has been that patent owners are bad actors simply because they are patent owners. A more nuanced but still grossly overbroad view is that patent owners are not per se bad actors, but if you are a patent owner who has the audacity to enforce a patent against an alleged infringer then you are most definitely a bad actor. Obviously, just being a patent owner does not make one a bad actor, and neither does enforcing a patent against an alleged infringer. But this patent troll narrative has been quite successful

The U.S. Supreme Court today invited the Solicitor General of the United States to weigh in on whether the U.S. Court of Appeals for the Federal Circuit (CAFC) was correct in reversing a district court’s grant of Hikma Pharmaceuticals’ motion to dismiss Amarin Pharma, Inc.’s complaint against it for induced infringement last June.

On Wednesday, predictive analytics firm Recentive filed a combined petition  for panel rehearing and rehearing en banc with the U.S. Court of Appeals for the Federal Circuit challenging that court’s invalidation of Recentive’s machine learning patent claims this April. As Recentive argues, the Federal Circuit’s decision to eliminate all patent protection for novel machine learning applications using established models conflicts with the U.S. Supreme Court’s patent-eligibility standard under 35 U.S.C. § 101 and chills U.S. innovation an incredibly important area of emerging technology.

In the latest Director Discretionary Denial decision, Acting U.S. Patent and Trademark Office (USPTO) Director Coke Morgan Stewart granted AXA Power’s request for discretionary denial based on “settled expectations” of the patent owner—a doctrine that is shaping up to be a key factor in Stewart’s interim discretionary denial process.

On Wednesday, June 18, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued an opinion affirming in part and vacating in part the Patent Trial and Appeal Board’s (PTAB) decision regarding Avago Technologies’ U.S. Patent No. 8,646,014. The patent, titled “Multistream Video Communication With Staggered Access Points,” addresses methods for reducing latency in video streaming systems. Specifically, it enables a video receiver to select from multiple streams the one expected to minimize latency, defined as the delay from a user’s request for content to its playback.

The U.S. Patent and Trademark Office (USPTO) today held a “USPTO Hour” webinar in which it shared the results thus far of its 2022 pilot program, the “Deferred Subject Matter Eligibility Response (DSMER) Pilot.” The DSMER Pilot was announced in January 2022 in response to a 2021 letter sent to the Office by Senators Thom Tillis (R-NC) and Tom Cotton (R-AR) asking then-interim Director Drew Hirshfeld to “initiate a pilot program directing examiners to apply a sequenced approach to patent examination,” rather than the traditional “compact approach.”

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision today holding that it does not have jurisdiction to review appeals outside of final decisions on the merits from the International Trade Commission (ITC) that affect the entry of articles…. Realtek appealed the ITC’s denial of its motion for sanctions against Future Link, arguing that both the ITC ALJ and the Commission itself violated the Administrative Procedure Act (APA) by rejecting the sanctions request. The ITC and Future Link argued that the CAFC did not have jurisdiction to hear the appeal and that Realtek did not have standing.

While the Alice v. CLS Bank decision has been with us for over 10 years, subject matter eligibility case law still seems to defy predictability.  The recent Contour IP Holding case gives us a new data point and another curve on the road.  In Contour IP Holding, a patented video streaming technology was initially struck down in the district courts as ineligible, only to be revived by the Federal Circuit in a rare 101 reversal.  Standing in contrast to Yu holding those claims to digital photography ineligible, Contour provides insight and an opportunity to save your inventive technology from subject matter challenges. 

Senators Marsha Blackburn (R-TN) and Mazie Hirono (D-HI) today signed onto the Patent Eligibility Restoration Act of 2025 as co-sponsors with Senators Thom Tillis (R-NC) and Chris Coons (D-DE). PERA 2025 was introduced on May 1 in both the Senate and the House of Representatives by Tillis, Coons and Representatives Kevin Kiley (R-CA) and Scott Peters (D-CA). The bill would essentially eliminate all judicially-created exceptions to U.S. patent eligibility law and has been introduced each year since 2023.

This week on IPWatchdog Unleashed I speak with F. Scott Kieff, former Commissioner on the International Trade Commission, and Joshua Hartman, head of Merchant & Gould’s ITC practice group. Our conversation, which took place on June 4, focused on the landmark ruling by the Federal Circuit in Lashify, Inc. v. International Trade Commission, which was a big win for small business patent owners. We discuss the consequences of the Lashify ruling and the politics of the decision, including whether the decision fits within an America First view of domestic and global markets. Kieff also discusses the historical evolution of the ITC, why it was initially created, and how it is purposefully deadlocked politically to require cooperation.

The U.S. Supreme Court on Monday declined to grant a number of IP petitions, including one in which a divided panel of the U.S. Court of Appeals for the Federal Circuit (CAFC) ruled in October 2024 that NexStep, Inc. failed to prove Comcast Cable Communications had infringed its patents under the doctrine of equivalents.

Today, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential ruling in Optis Cellular Technology, LLC v. Apple, Inc. vacating infringement and damages judgments awarded to Optis by the Eastern District of Texas. The CAFC also reversed summary judgment rulings upholding Optis patent claims under 35 U.S.C. § 101, found that other claims did not invoke means-plus-function analysis under 35 U.S.C. § 112 ¶ 6), and ruled that the district court’s jury instructions deprived Apple of its right to a jury trial under the Seventh Amendment—a constitutional argument that has not fared as successfully for patent owners protecting their intellectual property rights in administrative proceedings.