Posts Tagged: "intellectual property"

Regeneron has lost a significant battle in its fight with Kymab over patents for transgenic mice. In a 4-1 split decision today, the UK Supreme Court found the patents invalid for insufficiency, reversing the decision of the Court of Appeal. (Regeneron Pharmaceuticals Inc v Kymab Ltd. [2020] UKSC 27.) Regeneron had sued Cambridge, UK-based Kymab, alleging that the latter’s Kymouse transgenic mouse platform infringed two patents (EP 1,360,287 and EP 2,264,163) also known as the Murphy patents). The two patents at issue cover Regeneron’s VelocImmune platform, which is used to produce antibodies for treating diseases, including COVID-19. In February 2016, following a trial in the High Court, Mr Justice Henry Carr revoked the patents for insufficiency. However, in March 2018 the Court of Appeal reversed that finding and found the patents to be infringed in a judgment written by Lord Justice Kitchin.

On June 16, the USPTO published a final rule in the Federal Register revising the rules of practice regarding patent term adjustments in light of the U.S. Court of Appeals for the Federal Circuit’s (CAFC) 2019 decision in Supernus Pharmaceuticals v. Iancu, which held that reductions to patent term adjustments must be equal to the time in which the applicant failed to make reasonable efforts to conclude processing or examination of an application.

You may have seen a web series featuring Jerry Seinfeld called Comedians in Cars Getting Coffee. The basic premise of the show is that Seinfeld and another famous comedian take a drive in a classic car and stop along the way at a coffee shop to share stories. It’s essentially a moving talk show without an audience. Examples of comedians who’ve appeared on the show include Tina Fey, Jim Carrey, Stephen Colbert, Chris Rock, Eddie Murphy, Jimmy Fallon and many others. One notable exception to the guest being a comedian occurred when then-sitting President Obama was Seinfeld’s guest. The series debuted on the Sony-owned Crackle video streaming platform and moved over to Netflix for its tenth season in July 2018. What you may not know is that there has been litigation surrounding the series. On February 9, 2018, plaintiff Christian Charles filed a lawsuit in federal court in New York City alleging copyright infringement and related claims against Seinfeld and a number of other defendants involved in the series. The case is Christian Charles v. Jerry Seinfeld et al., United States District Court for the Southern District of New York, Case No. 18-cv-01196. The following facts are taken from Charles’s Second Amended Complaint (i.e., this is Charles’s version of events, not Seinfeld’s).

While perusing the Patent Gazette looking for interesting, recently issued patents to discuss during Intro to Patent Prosecution, I stumbled across U.S. Patent No. 10,668,819, titled Enhanced wireless charging. Issued on June 2, 2020, this patent was filed on May 22, 2017. The reason this particular patent caught my attention as I was looking for software patents and other high-tech patents and claims I could dissect for students was because the invention is to a wireless vehicle charging station. Those familiar with the Federal Circuit’s decision in ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759 (Fed. Cir. 2019), will recall that Chief Judge Prost (joined by Judge Chen) ruled that the claims directed to a wireless vehicle charging station of U.S. Patent No. 8,138,715, were abstract and patent ineligible. A review of the disclosure and claims of the recently issued ‘819 patent and the now several years old ‘715 patent tell the whole story and offer a valuable drafting lesson in this new age of eligibility uncertainty.

For over a decade, the National Intellectual Property Rights Coordination Center (IPR) has been at the forefront of the United States government’s response to combating global intellectual property (IP) theft and enforcement of its international trade laws. The IPR Center brings together over 25 global partners, including government and law enforcement agencies focused on IP enforcement. Steven Francis is the IPR Center Director and is also the Assistant Director for Global Trade Investigations at Homeland Security Investigations, with over 22 years of federal law enforcement experience. This month, I had the opportunity to interview Francis about the work of the IPR Center, particularly during Covid-19, and how the center is partnering with the stakeholder community through initiatives such as Operation Stolen Promise.  

Certainly, patents that read on a potential cure for COVID-19 deserve special treatment. After all, the cure for COVID-19 is not only crucial to save lives all over the world, but also to avoid the collapse of the global economy. Yet, what such special treatment might look like and how special a treatment is necessary is where opinions diverge. In the United States, activists demand that the government should have the rights to the anti-retro viral drug, ‘Remdesivir’. The Open Covid Pledge proposes that all IP related to COVID-19 should be made freely available. Its founding adopters were technology companies such as Facebook, Microsoft, Intel, IBM and Amazon. In contrast, among pharmaceutical companies, the idea of giving up all related IP for free has been viewed critically. With this in mind, the question is therefore not whether patents related to COVID-19  should be given away for free or not, but rather how the profit motive can be managed in public- private partnerships for the benefit of public health.

This week in Washington IP events, Tuesday kicks off with a House Space Subcommittee hearing on research and development into social distancing configurations in air travel seating, while the House IP Subcommittee holds a hearing on Thursday to explore innovation and technology used by the federal court system in their response to COVID-19. The Senate Commerce Committee will likely look at funding for rural broadband initiatives during a Wednesday hearing on Federal Communications Commission oversight. Among tech policy institutes, the Information Technology and Innovation Foundation discusses the future of autonomous vehicle systems in goods transportation, while New America hosts several events this week on digital payment systems, meat produced without animal agriculture, Section 230 liability provisions for online service providers and broadband initiatives to aid American schoolchildren. 

The Federal Circuit has been criticized for creating categories of abstract ideas when applying Alice v. CLS’s two-prong framework and for refusing to define the contours of an abstract idea. Naturally, this causes uncertainty for those drafting patent claims. A typical view is that claims can be drafted by analogizing to them to the decisions. However, analogical reasoning has limited utility where the Federal Circuit continues to define new abstract ideas. This article argues that Alice’s definition of a patent-eligible claim is consistent with the Federal Circuit’s decisions and that this definition can be a useful analytical tool while drafting claims.

Earlier this year, the World Intellectual Property Organization (WIPO) received hundreds of submissions commenting on the Draft Issues Paper on Intellectual Property Policy and Artificial Intelligence. Contemporaneously, the notable DABUS cases were rejected by the EPO, UKIPO, and USPTO on the ground that AI cannot be named as inventor. The uncertainty in the ownership/inventorship of AI technology could impede investment and development of AI technology. This article aims to look into the WIPO submissions and arguments for addressing AI inventorship. Considering balancing the incentive of fostering AI technology and genuine inventorship, this article suggests seeing AI as a tool, or a pet, and that requiring the applicant to disclose any AI technology involved is the better resting place.

This week in Other Barks and Bites: the U.S. Patent and Trademark Office proposes adjustments to trademark fees, issues a final rule on patent term adjustments under Supernus, launches a priority examination program for COVID-19-related trademarks and service marks, and seeks nominations for members of the Patent Public Advisory Committee (PPAC) and Trademark Public Advisory Committee (TPAC); the Federal Circuit strikes down patent suits filed by PersonalWeb Technologies under the Kessler doctrine; the Copyright Office announces virtual forums on agency modernization efforts and upcoming Section 1201 rulemaking; Mylan successfully invalidates Biogen’s Tecfidera patent claims in district court; the WTO issues a panel opinion finding that the Saudi Arabian government wrongfully prevented the enforcement of IP rights; and the Seventh Circuit affirms the denial of an attorney’s fee award in a case involving frivolous copyright claims.

A bipartisan group of senators has introduced legislation to stop the theft of U.S. intellectual property by foreign governments, with a focus on China. The bill, titled the “Safeguarding American Innovation Act,” was introduced today by Senators Thom Tillis (R-NC), Rob Portman (R-OH), Tom Carper (D-DE), Marco Rubio (R-FL), Maggie Hassan (D-NH), James Risch (R-ID), Joe Manchin (D-WV), Chris Coons (D-DE), Josh Hawley (R-MO), Jeanne Shaheen (D-NH), John Barrasso (R-WY), Catherine Cortez-Masto (D-NV), Rick Scott (R-FL), Mike Braun (R-IN), and Marsha Blackburn (R-TN).

Since the Alice decision, the U.S. courts have adopted different views related to the role of the preemption test in eligibility analysis. While some courts have ruled that lack of preemption of abstract ideas does not make an invention patent-eligible [Ariosa Diagnostics Inc. v. Sequenom Inc.], others have not referred to it at all in their patent eligibility analysis. [Enfish LLC v. Microsoft Corp., 822 F.3d 1327] Contrary to those examples, recent cases from Federal Courts have used the preemption test as the primary guidance to decide patent eligibility. Inventive concepts enabled by new algorithms can be vital to the effective functioning of machine learning systems—enabling new capabilities, making systems faster or more energy efficient are examples of this. These inventions are likely to be the subject of patent applications. However, the preemption test adopted by U.S. courts may lead to certain types of machine learning algorithms being held ineligible subject matter.

Societies are always most vulnerable in times of crisis. Right now, America is in the midst of the COVID-19 outbreak, subsequent economic devastation, and justified nationwide protests for social and criminal justice reform—perhaps an unprecedented level of unrest. As such, it is also perhaps more important than ever for us to demonstrate our ability to unite, cooperate, and innovate. Fortunately, through the improved protection of our intellectual property (IP), America has an opportunity to do exactly that. COVID-19 has demonstrated the equal importance of encouraging and protecting America’s innovators. Worldwide manufacturing shutdowns, part of the global effort to slow the spread, exposed our country’s reliance on China for many of our basic necessities and raw materials. America often generates the ideas of tomorrow. But, until we can generate the ensuing products as well, independence from China will be impossible. This reliance, and lack of investment in domestic production, is proving to have serious consequences.

Last week, Facebook and the USPTO both filed briefs in response to a U.S. Court of Appeals for the Federal Circuit (CAFC) Order requesting that the parties and the U.S. Patent and Trademark Office (USPTO) file supplemental briefs explaining their views regarding the effect of the Supreme Court’s April 20, 2020 decision in Thryv, Inc. v. Click-To-Call Techs, LP on the CAFC’s March 18, 2020 decision in Facebook v. Windy City Innovations.  In Facebook, the CAFC ruled that the USPTO’s Patent Trial and Appeal Board (PTAB) erred both in allowing Facebook to join itself to a proceeding in which it was already a party, and in allowing Facebook to add new claims to the inter partes reviews (IPRs) at issue through that joinder.

On June 11, the Fifth Chamber of the Court of Justice of the European Union (CJEU) issued a decision in Brompton Bicycle Ltd. v. Chedech/Get2Get in which the EU’s highest court held that European copyright law extends protection to product shapes producing a technical result when the shape is an original work resulting from the author’s intellectual creation. The decision is notable both for the CJEU’s departure from the advocate general’s opinion in the case as well as its sharp contrast to U.S. copyright law, where copyright protection is expressly prohibited for product designs that have utilitarian, functional aspects.