We also spent a good deal of time discussing obviousness, KSR, and how at least sometimes, perhaps even often depending on the wording of the rejection from the examiner, you really only need to argue a lack of teaching, suggestion and motivation to persuade examiners that the claims you seek are nonobvious and allowable. “Evidence is still a requirement for motivation to combine,” Rogitz said. “On some level the TSM test is still the controlling test because… if you need evidence for a suggestion or motivation… that’s the TSM test still.”

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What makes the ITC such an important venue for intellectual property rights owners is the ability to rather quickly obtain injunctive relief in the form of an exclusion order. This is an important tool for patent owners because since the Supreme Court issued its landmark decision in eBay v. MercExchange in 2006, it is has been increasingly difficult, in fact absolutely impossible for many patent owners to obtain any form of injunctive relieve against infringers even after the infringer has been adjudicated as being liable as an infringer and the patent in question has withstood all challenges in all forums.

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During our conversation we explore much of what is happening in DC relating to patents and innovation, and specifically discuss matters ranging from proposed guidelines from the National Institute of Standards and Technology relating to use of march-in rights to control drug prices, to the recently introduced RESTORE Act, which is little more than one-page would largely if not completely overrule the Supreme Court’s eBay decision and create a presumption that victorious patent owners who have proved infringement and withstood all invalidity challenges would be presumed to be entitled to injunctive relief.

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If you are an inventor of a consumer product there are reputable companies looking for inventions and ideas to bring to market, and their business model is built on taking products to market over and over again, and they are in constant need of new products and improvements. They also realize litigation is wasteful when you are dealing with products that often have a 1-, 2- or 3-year shelf life, so they are willing to do deals that allow them to quickly get products onto shelves and into the stream of commerce, and inventors get paid.

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This week our conversation is with Patrick Kilbride, who is a public policy expert with significant expertise at the intersection between market economics, innovation and intellectual property. At the beginning of our conversation Kilbride explains that “one of the most remarkable things about the American economy is that what we have done historically does seem to be so unique.” He then pointed to five distinguishing features, which we spend the rest of our conversation discussing. According to Kilbride, what makes the U.S. unique is that the American economic approach enables risk taking and failure, fosters competition and ensures goods and services can cross state lines, provides property rights, is based on the rule of law, and establishes markets.

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Pharmacy benefit managers, or simply PBMs, are often owned by either the pharmacies themselves or sometimes by insurers, which creates a lot of self-dealing to say the least. These PBMs are middlemen who receive 50% of the value of the drug, significantly raising drug prices. This has nothing to do with IP whatsoever.

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The term Artificial Intelligence itself has largely become the generic term used to describe a variety of related but different concepts, often wrapping together AI, Machine Learning and Generative AI as if they all relate to the same thing, or as if there is a single technology that is, in fact, AI. These related but different technologies differ in scope, function, techniques used, and they also differ in terms of trustworthiness and reliability. Much of what will discuss today will tackle the technical issues that face the industry and innovators in this space. Specifically, we will discuss the various practical manifestations of AI, ML, and Generative AI as they currently exist in 2024, and are likely to exist in the near future. We will attempt to separate fact from fiction with respect to what these technologies can currently do, what the technology does well versus what the technology struggles with, and what the industry can expect moving forward.

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This week on IPWatchdog Unleashed, we turn our attention to patent policy and the Biden Administration, particularly the Adminstration’s efforts to make it more difficult for pharmaceutical companies to obtain and keep patent rights. For this episode, I spoke with Brad Watts, who is Vice President for Patents and Innovation Policy at the Global Innovation Policy Center at the U.S. Chamber of Commerce. Prior to joining the Chamber, Brad spent eight years working in the U.S. Senate, his last several years as Republican Chief Counsel on the Senate Judiciary Subcommittee on Intellectual property, where he was responsible for planning and implementing Senator Thom Tillis’ (R-NC) and the Republican party’s legislative agenda on all aspects of intellectual property.

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Ordinarily, patent practitioners do not need to really think about prosecution laches, but laches has become a rather hot topic as the United States Patent and Trademark Office (USPTO) and courts have initiated what can only be characterized as an assault on an applicant’s statutory right to seek and file additional claims if those claims are supported by the initial disclosure.

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This week we venture into the world of patent monetization from the viewpoint of a patent owner and non-practicing entity. Our conversation is with Brad Close, a one-time patent prosecution attorney, one-time patent broker, and current patent owner engaged in patent monetization efforts, licensing and, of course, litigation.  We start our conversation addressing life as an NPE, and the arguments that are often made against NPEs owning and enforcing patents.

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This week our conversation is with Scott McKeown, a shareholder with Wolf Greenfield and the author of PatentsPostGrant.com, and Steve McBride, a partner with Carmichael IP. In this wide-ranging conversation, we cover what is happening at the United States Patent and Trademark Office (USPTO), specifically discussing the office’s proposed changes to terminal disclaimers for obviousness-type double patenting, the proposed Patent Trial and Appeal Board (PTAB) rules, director review as it pertains to inter partes review (IPR). We also discuss pending legislation on Capitol Hill, specifically discussing the Patent Eligibility Restoration Act (PERA) and The Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL), which deals with statutory reforms to PTAB.

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IPWatchdog is excited to introduce IPWatchdog Unleashed, an original podcast where each week we will journey into the world of intellectual property to discuss the law, news, policy and politics of innovation, technology, and creativity. With analysis and commentary from industry thought leaders and newsmakers from around the world, IPWatchdog Unleashed is hosted by world renowned patent attorney and founder of IPWatchdog.com, Gene Quinn.

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