Eileen McDermott

The U.S. Patent and Trademark Office (USPTO) today announced new guidance on empaneling procedures for the Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB). Under the guidance, PTAB and TTAB management will “avoid empaneling cases to judges who hold stock or bonds (publicly traded or privately held) in any of the disclosed parties or real parties in interest, regardless of the dollar value.”

Just two days after hundreds in the intellectual property community stood for U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman following her thoughtfully delivered words at IPWatchdog LIVE 2023, the CAFC’s Judicial Council released a 375-page Order suspending Judge Newman from all cases. The Council also released a slew of other documents today, including Newman’s August 31 response to the initial recommendation that she be suspended.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed a district court’s grant of summary judgment that Baxalta, Inc. and Baxalta GmbH’s Hemophilia patent claims are invalid for a lack of enablement. The court said the facts of the case are “materially indistinguishable from those in Amgen.”… While Baxalta tried to argue its screening process does not require the type of trial and error described in Amgen and instead “predictably and reliably generates new claimed antibodies every time it is performed,” the court said “this does not take the process out of the realm of the trial-and-error approaches rejected in Amgen.”

Judge Pauline Newman, who is currently in the midst of a very public fight with the Chief Judge of her court, received two lengthy standing ovations at IPWatchdog LIVE on Monday as she accepted her induction into the IPWatchdog Masters Hall of Fame, and also presented the inaugural Pauline Newman Award to Henry Hadad of Bristol-Myers Squibb. Newman had a message for those in attendance that hinted at the need for a possible “major upheaval” of the judicial system for IP rights.

On day two of IPWatchdog LIVE, J. John Lee, Chief Counsel for Intellectual Property for the U.S. House of Representatives, Committee on the Judiciary, told those who are skeptical of the chances for Senators’ Tillis and Coons’ Patent Eligibility Restoration Act (PERA) to move forward that a House version of the bill is likely to be introduced in the near future. Lee, who is principal advisor on IP issues and helms the Subcommittee on Courts, Intellectual Property, and the Internet, was speaking on a panel titled “Politics, Policy and Legislation at the Intersection of Intellectual Property,” which also featured David Jones of the High-Tech Inventors Alliance; Joe Matal of Haynes Boone, LLP and former U.S. Patent and Trademark Office (USPTO) Acting Director and Acting Solicitor; and Eli Mazour of Harrity & Harrity.

The third annual IPWatchdog LIVE conference opened with panels examining global trends in IP policy and a review of U.S. Supreme Court case law, as well as the presentation of the third annual Paul Michel Award, which each year honors a respected industry leader and advocate for fairness in the IP community. On a panel that detailed some of the most recent U.S. Supreme Court’s IP decisions, retired U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Paul Michel described the arguably contradictory holdings in Google v. Oracle and Warhol v. Goldsmith as “useless” in terms of substantive guidance from the Court. “These two cases represent a failure on the part of the Supreme Court to provide meaningful guidance to users who need it now,” Michel said. Professor Llew Gibbons of the University of Toledo College of Law explained the holdings in each of the cases and concluded that “I couldn’t find a principled reason other than ‘we want to come out differently’” for the Court’s ruling in Warhol, considering the Google decision.

Amici have submitted briefs and a response has been filed in recent weeks with respect to U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal’s petition to the U.S. Supreme Court for review of a decision that said the USPTO was wrong to reject a trademark application for the mark TRUMP TOO SMALL. The February decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) held the Office’s application of Section 2(c) of the Lanham Act to reject TRUMP TOO SMALL was unconstitutional. Specifically, the CAFC panel held that “applying section 2(c) to bar registration of [Steve] Elster’s mark unconstitutionally restricts free speech in violation of the First Amendment.”

A Pulitzer Prize-winning author and a number of Tony, Grammy and Peabody award winners are the latest to sue OpenAI for copyright infringement based on the way it trains its popular chatbot, ChatGPT. In July, comedian Sarah Silverman and authors Christopher Golden and Richard Kadrey brought a similar suit against OpenAI.