Posts Tagged: "Patent Litigation"

Last week, the U.S. Supreme Court received several amicus briefs filed in support of the petition for writ of certiorari filed in Biogen International GmbH v. Mylan Pharmaceuticals Inc. If cert is granted, this case will ask the nation’s highest court to clarify the written description requirement under 35 U.S.C. § 112. The appeal follows a contentious decision this March from the U.S. Court of Appeals for the Federal Circuit to deny panel rehearing and rehearing en banc of an earlier ruling affirming the Northern District of West Virginia’s invalidation of Biogen’s patent claims covering a method of treating multiple sclerosis (MS) under Section 112.

A company’s knowledge of IP trends and its own internal IP strategy is crucial to a wide range of issues the company may face—including litigation, business expansion, and retaining its talent. Being prepared for IP issues your company may face externally, as well as developing a strategic plan internally for your company’s IP portfolio, will better position your organization on multiple fronts. Below are 10 reasons your company should pay attention to these IP trends.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed a district court’s ruling denying Innovation Sciences’ post-trial motion for judgment as a matter of law (JMOL) that claims of three of its patents are not invalid and that Amazon.com, Inc. infringed them, or, alternatively, a new trial. The CAFC said that substantial evidence supported the district court’s finding of anticipation, which Amazon proved via expert testimony relating to a prior art home automation software called HAL.

For most people, what comes to mind when they hear the word “patent” might be an invention like the lightbulb—Thomas Edison’s version rather than Sawyer and Man’s, probably—or the telephone—another hotly-contested invention between Alexander Graham Bell and the lesser-known Elisha Gray….What the average person might not be aware of is the type of patent intended to protect “any new, original, and ornamental design for an article of manufacture.” This is the domain of the design patent…. Traditionally, design patents covered physical designs that had some tangible effect on the shape, or texture of the “article of manufacture.” Over time, design patent protection extended to cover screen layouts and graphical user interfaces (“GUIs”)…. Two recent cases are some of the rare examples of a company arguing infringement solely based on GUI design patents.

On July 18, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in CareDx, Inc. v. Natera, Inc. affirming a summary judgment ruling of the District of Delaware, which invalidated claims from three Stanford University patents licensed by CareDx as patent  ineligible. The decision marks yet another blow to medical diagnostic testing, this time in the context of organ transplants, and the prospects of their developers for obtaining enforceable patent rights.

On July 11, Teva Pharmaceuticals USA filed a Petition for Writ of Certiorari to the U.S. Supreme Court asking it to review a decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in which the CAFC found that Teva could be held liable for inducement based on sections of a “skinny label” that provided information about unpatented uses. Teva claims that the decision by the CAFC would upend the legal rules governing the modern prescription-drug marketplace. The petition notes that the decision would wreak doctrinal havoc in two equally disturbing ways. First, the court’s decision eliminates the key element of inducement liability requiring plaintiffs to prove that a defendant took active steps to encourage the direct infringement. Secondly, it effectively nullifies a Congressional act that was enacted to bring low-cost generic drugs to market, which is precisely what Teva was doing.

Interactive Wearables, the petitioner in yet another patent eligibility case that the U.S. Supreme Court is being asked to review, filed a reply brief on July 11 distancing its petition from that of American Axle & Manufacturing, Inc.’s, which was denied certiorari on June 30, 2022. The brief characterizes U.S. patent eligibility doctrine as being “perilously fractured” and narrows its arguments to focus on the third question presented in its petition, since the first two were addressed, and have now been rejected by the Court, in the American Axle case.

The U.S. Court of Appeals for the Federal Circuit today held in a precedential decision that Thales DIS AIS Deutschland GMBH cannot stop Philips from seeking an exclusion order at the International Trade Commission (ITC) to enjoin Thales from importing its products relating to wireless network technology into the United States.

Recently, we submitted comments for the record to the Senate Judiciary Committee’s IP Subcommittee in response to its June 22 hearing on the Patent Trial and Appeal Board (PTAB), titled: “The Patent Trial and Appeal Board: Examining Proposals to Address Predictability, Certainty and Fairness.” The hearing focused on Senator Leahy’s PTAB Reform Act, which among other changes, would eliminate the discretion of the Director to deny institution of an inter partes review (IPR) petition based on an earlier filed district court litigation involving the same patents, parties and issues. Here is the net of what we told them:

Despite the U.S. Supreme Court’s rejection of the petition in American Axle v. Neapco just a few days earlier, inventor David Tropp on July 5 again asked the Court to unravel U.S. patent eligibility law. Tropp, who owns two patents relating to luggage lock technology that enables airport screening of luggage while still allowing the bags to remain locked, is asking the Court to answer the question: “Whether the claims at issue in Tropp’s patents reciting physical rather than computer-processing steps are patent-eligible under 35 U.S.C. § 101, as interpreted in Alice Corporation Pty v. CLS Bank International, 573 U.S. 208 (2014).”

The U.S. Court of Appeals for the Federal Circuit (CAFC) earlier today held in a precedential decision that a typographical error in a prior art document would have been dismissed by a person of ordinary skill in the art (POSITA) and thus could not be used to prove obviousness. The appeal was brought by LG Electronics, Inc, against ImmerVision, Inc. and related to claims of U.S. Patent No. 6,844,990 for “capturing and displaying digital panoramic images.”

On July 6, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in US Inventor v. Hirshfeld, an appeal from a lawsuit first filed in February 2021 to challenge the U.S. Patent and Trademark Office’s (USPTO’s) development of the Fintiv framework for discretionary denials of petitions for Patent Trial and Appeal Board (PTAB) proceedings. Although the appeal comes to the Fifth Circuit following the district court’s dismissal due to the plaintiffs’ lack of Article III standing, much of the oral arguments focused on whether the Fifth Circuit or the U.S. Court of Appeals for the Federal Circuit had proper jurisdiction to hear the appeal.

Recession woes, war in Ukraine, and rising inflation have to date had little effect on the patent litigation marketplace—emphasizing the “non-correlated” in “non-correlated asset”—and it was borne out in the courts last week, where litigation exploded, with 135 new patent filings, more than double the average—though this keeps with a trend of seeing filings spike at the ends of annual quarters. That spike is normally, as it is here, driven by dozens of IP Edge filings across various subsidiaries (here, some of them going after local and regional newspapers struggling to stave off bankruptcy). This week also saw 82 denials of Patent Trial and Appeal Board (PTAB) petitions, with the roughly average number of petitions (2 post grant reviews and 34 inter partes reviews [IPRs]).