Posts Tagged: "intellectual property"

There were only 16 new PTAB filings—all inter partes reviews (IPRs)—this week, with a whopping 70 new district court complaints filed.  Those numbers were driven primarily by: 1) frequent filer WSOU’s adding the first of what will likely be a tranche of new complaints (as is their wont) against U.S. manufacturer Dell to their ongoing campaigns against Huawei, ZTE, and Microsoft; and 2) by a sprawling suit on putative 2G and 3G patents by European patent aggregator SISVEL against at least 10 new targets, as well as various small-company disputes and the usual NPE activity.

Cochlear Bone Anchored Solutions AB (“Cochlear”) owns U.S. Patent No. 7,043,040 (“the ‘040 patent”), directed to a hearing aid for use in those with unilateral hearing loss. Oticon Medical AB, etc. (“Oticon”) successfully petitioned for inter partes review (IPR) of all claims of the ‘040 patent, and in those reviews the USPTO Patent and Trial Appeal Board (“PTAB” or “Board”) held claims 4-6 and 11-12 unpatentable, but maintained the validity of claims 7-10. Cochlear appealed the PTAB’s decision with respect to claims 4-6 and 11-12, while Oticon cross-appealed the PTAB’s determination in connection with claims 7-10. The Federal Circuit (Newman, O’Malley and Taranto) affirmed, but for claim 10, on which they vacated and remanded to the PTAB for further action.

As governments around the globe fight the COVID-19 outbreak, pharmaceutical companies race to develop a vaccine and potentially secure a patent for it. To speed the process, much of that effort builds on known drugs for other diseases. The World Economic Forum reports that 70 potential vaccines are currently in development around the world. According to a BBC report, research is in progress on more than 150 additional drugs globally, with many pre-existing drugs being trialed for potential usefulness in combatting COVID-19. Those which can are giving it their best shot—for people as well as profit. In the wake of this COVID-19 vaccine and patent sprint, questions arise concerning affordable and universal access: will governments, especially poorer ones, be able to secure affordable access to a vaccine if and when one becomes available? Can a patent owner actually be forced to license a COVID-19 vaccine for the benefit of the greater good? The answers are likely yes to both, depending where you are.

Last week, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision of the U.S. District Court for the Middle District of Florida in Lanard Toys Limited v. Dolgencorp LLC, Ja-Ru, Inc., Toys “R” Us-Delaware, Inc. The district court granted summary judgment in favor of Dolgencorp LLC, Ja-Ru, Inc., Toys “R” Us-Delaware, Inc. (the Appellees) on Lanard’s claims of design patent infringement, copyright infringement, trade dress infringement, and statutory and common law unfair competition. The CAFC, in an opinion authored by Judge Lourie, affirmed on all four claims.

The Enlarged Board of Appeal (EBA) of the European Patent Office published opinion G 3/19 “Pepper” on Thursday, May 14, holding that plants and animals exclusively obtained by means of an essentially biological process are excluded from patentability. The opinion, which arose via a referral from the EPO President, also set out principles regarding the interpretation of the European Patent Convention (EPC) that could apply in other technical fields. 

On May 11, 2016, President Obama signed into the law the Defend Trade Secrets Act (DTSA) which extended the Economic Espionage Act of 1996 (EEA), which provides a broad basis for civil federal jurisdiction for the theft of trade secret thefts. Thus, trade secret owners can sue in federal court so long as there is a connection between the trade secret and interstate or foreign commerce. However, the DTSA does not preempt states laws and parties can still bring an action under a state’s version of the Uniform Trade Secret Law. Two recent reports highlight a number of significant findings that are relevant to companies looking to protect and defend their trade secrets: In April 2020, finance consulting firm Stout Risius Ross, LLC published its 2020 “Trends in Trade Secret Litigation Report (the SR) and Lex Machina released its 2020 Trade Secret Litigation Report (LMR), in which it summarized data from the past decade and compared it against data from the previous year’s report.

The Federal Circuit’s recent Uniloc v. LG Electronics decision (April 30, 2020) may be very helpful for subject matter eligibility. This Federal Circuit panel (Moore, Reyna & Taranto) held software patent claims to be patent eligible subject matter. I find the decision clearly written, with many interesting aspects. What strikes me most, though, is that seemingly very broad software patent claims were held eligible. Additionally, the decision highlights the perils of concession in a 12(b)(6) motion to dismiss.

Recently, the U.S. Court of Appeals for the Federal Circuit has issued several rulings defining some of the contours of the impact of its decision last year in Arthrex v. Smith & Nephew, in which the Federal Circuit found that administrative patent judges (APJs) at the Patent Trial and Appeal Board (PTAB) had been unconstitutionally appointed because they were principal officers under the Appointments Clause. The Federal Circuit’s recent decisions show several limits to the impact of Arthrex, which has spurred a large number of PTAB appeals since the Federal Circuit denied a motion to stay issuance of the Arthrex mandate this March, requiring the PTAB to conduct remanded proceedings under the case.

Is imitation really the highest form of flattery? Nintendo might not think so after seeing dbrand’s latest Switch skin set. The Nintendo Switch has become extremely popular amidst social distancing, work from home, and stay at home requirements during the COVID-19 pandemic. The console’s combination of handheld and traditional features, along with its wide variety of games, appeals to a large audience and provides an engaging way to spend time at home.

On May 13, 2020, the United States Court of Appeals for the Federal Circuit (CAFC) upheld a decision of the United States District Court for the District of Minnesota in Schwendimann v. Arkwright Advanced Coating, Inc. In particular, the CAFC affirmed the District Court’s holding that Jodi A. Schwendimann was a patentee entitled to pursue infringement claims despite the patent assignment being improperly recorded at the time the infringement action was filed.

As predicted following oral arguments, the U.S. Supreme Court today ruled that Marcel Fashion Groups, Inc. cannot preclude Lucky Brand Dungarees, Inc. from raising new defenses under federal preclusion principles, but left open the possibility that it may be appropriate to apply claim preclusion to defenses in certain circumstances. The opinion was authored by Justice Sotomayor. The Second Circuit decision was ultimately reversed and the case remanded, continuing the long battle between the two brands.

Technology innovation in artificial intelligence (AI) is accelerating at a breakneck pace, and the ability to innovate, adopt and integrate AI techniques to evolve business models will separate those businesses that recover from the COVID-19 pandemic from those that will fail. Four artificial intelligence technologies are poised to lead the global economy out of the pandemic-induced recession. Applications for these technologies across verticals abound. Smart strategic and financial investors are scouring the market for new ways to digitally disrupt established businesses. Throughout the COVID-19 pandemic, the importance of sharing critical information across countries about the spread of coronavirus has been emphasized. However, much remains unsaid about how COVID-19 could have been managed more efficiently by using advanced data technologies that have transformed businesses. Here are four areas where AI could change the face of the post-COVID economy

The U.S. District Court for the District of Massachusetts on May 4 denied a motion for partial summary judgment by Palomar Technologies, Inc., holding that the estoppel bar relating to inter partes review (IPR) proceedings did not apply to two prior art references that had not been raised in a prior IPR hearing at the Patent Trial and Appeal Board (PTAB). Palomar brought suit against MRSI Systems, LLC in the Southern District of California on July 6, 2015 for infringement of Palomar’s U.S. Patent No. 6,776,327. In October of 2015, MRSI petitioned the PTAB for IPR of all 48 claims of the ‘327 Patent on the grounds of anticipation or obviousness based on five prior art references. The PTAB instituted and ultimately upheld 47 of the 48 claims.

On May 8, the U.S. District Court for the District of Colorado granted National Geographic’s Motion to Dismiss Stouffer’s amended complaint in Stouffer v. National Geographic Partners, LLC. Stouffer sued National Geographic for trademark infringement, unfair competition, and deceptive trade practices. In response, National Geographic asserted that Stouffer’s claims were trademark-based and must be dismissed in order to protect National Geographic’s First Amendment interests. The Court addressed the question of what protections the First Amendment provides to those accused of trademark infringement and ultimately granted National Geographic’s motion to dismiss with prejudice.

Since the Supreme Court’s Alice decision in 2014, many patent prosecutors in Industrial & Mechanical Technologies practice groups have been spared the headaches that the decision created for their colleagues in Electrical & Computer Technologies practice groups. So, it came as quite a surprise, perhaps unwelcome to some, when the Federal Circuit decided American Axle v. Neapco, invalidating claims for a method for manufacturing propshafts as being directed to ineligible subject matter under Section 101 of the U.S. Patent Act…. Almost six months later, it appears that Neapco was right, at least when it comes to patent prosecution in the mechanical arts. Indeed, both anecdotal evidence and prosecution data aggregated by Juristat demonstrate that the American Axle decision has not affected the prosecution of mechanical inventions before the USPTO in any significant way.