Posts Tagged: "patent"

The United States Patent and Trademark Office (USPTO) recently announced the COVID-19 Prioritized Examination Pilot Program, under which the USPTO will advance certain patent applications related to COVID-19 “out of turn,” resulting in prioritized examination for qualifying applications. Under this program, the USPTO reportedly aims to provide final disposition of qualifying applications within one year of the filing date, meaning that a final office action or notice of allowance will be mailed (or a notice of appeal will be filed) during this shortened one year timeframe. For comparison, it typically takes the USPTO roughly 16 months from the filing of an application to mail a first office action.

District court patent filings and filings with the Patent Trial and Appeal Board (PTAB) were relatively subdued this week, with 53 new complaints and 31 PTAB filings; the PTAB filings were puffed up by L&L Candle Company firing off three IPRs against Sterno company, three diaper IPRs dropped on Paul Hartmann AG, and Qualcomm IPRs as outlined below; the district court saw the typical activity, plus a pro se PTA suit and a few further complaints from frequent and longtime litigants Gil Hyatt and Lakshmi Arunchalam.

In a ruling concerning patent portfolios owned by Unwired Planet and Conversant, the UK Supreme Court has upheld lower decisions that English courts can determine fair, reasonable and non-discriminatory (FRAND) terms for worldwide patent licenses, and grant injunctions. The Court’s unanimous judgment in the three cases (Unwired Planet International Ltd and another v Huawei Technologies (UK) Co Ltd and another, Huawei Technologies Co Ltd and another v Conversant Wireless Licensing SÀRL and ZTE Corporation and another v Conversant Wireless Licensing SÀRL [2020] UKSC 37) was issued today (August 26), after the Court heard arguments in October 2019.

On August 13, Sand Revolution LLC filed a petition for writ of mandamus with the U.S. Court of Appeals for the Federal Circuit. The petition asks the Federal Circuit to decide whether U.S. District Judge Alan D. Albright of the Western District of Texas abused his discretion to deny a motion to stay district court proceedings pending completion of an instituted inter partes review (IPR) proceeding at the Patent Trial and Appeal Board (PTAB). A look at the underlying circumstances of Sand Revolution’s petition shows that this case, which began as a patent squabble between two competitors in Texas’ hydraulic fracturing industry, is becoming a legal showdown between the right of patent owners to a jury trial in Article III courts and the fate awaiting those patent owners once they’re trapped at a PTAB that is arguably riddled with constitutional due process problems.

On August 20, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed a district court’s dismissal of an appeal from the United States Patent and Trademark Office’s (USPTO) Patent Trial Background Appeal Board (PTAB) in Security People, Inc. v. Iancu. In particular, the CAFC held that the district court’s dismissal of the suit was correct because Congress “foreclosed the possibility of collateral APA [Administrative Procedure Act] review of inter partes review decisions by district courts, and because Security People [could not] bring an APA challenge when the statutory scheme separately establishe[d] an adequate remedy in a court for its constitutional challenge.”

As outlined in Part I of this two-part article, Waco, Texas residents exude a more western mentality than Marshall’s residents. The small town that once served as a pit stop between Dallas and Austin has turned into its own charming cosmopolitan city, serving almost as a bedroom community for those with periodic work in Dallas and Austin…. Instead of attorneys comparing Marshall to Waco, they would be more accurate to compare the Sherman division’s Denton and Collin counties to the Waco division. Comprising about 80% of panelists in a Sherman division jury selection, jurors from both Denton and Collin counties exude a more western independent mentality than other Eastern District of Texas (EDTX) jurors. Denton and Collin counties have recently transitioned from ranching and farming into commuter suburbs a couple of decades ago, and now the counties have their own stand-alone cosmopolitan and sporting areas. Although lacking the diversity of the Sherman division, over time the Waco division’s growth will likely align it more closely to the Sherman division—a division much more friendly to defendants than Marshall.   

I recently had the opportunity to conduct an interview with Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, via WebEx. The focus of our conversation was the COVID-19 pandemic: USPTO efforts to work with stakeholders, the role of intellectual property in finding cures and treatments, and general thoughts relating to what the Office is observing. Our conversation also veered into Bayh-Dole and the the letter just sent by three-dozen state Attorneys General asking the federal government to use march-in rights against Remdesivir.

As detailed in Part I of this article, the recent opinion in AAM, Inc. v. Neapco Holdings, LLC, No. 18-1763 (Fed. Cir. July 31, 2020) misreads and misinterprets Supreme Court precedent as having long imposed the enablement-like requirements set forth in the AAM ruling. Similarly, the Federal Circuit cases cited by AAM do not reflect some longstanding Section 101 eligibility rule that the claim alone must show, with “specificity,” the “way” or “how to” “achieve” such an invention, beyond a mere “result.”

This year, Germany shot to the top of Bloomberg’s rankings for the most innovative nation worldwide, breaking South Korea’s six-year winning streak. Germany is a thriving European center for innovation where patent activity, high-tech density, and value-added manufacturing are on the rise. The country is particularly renowned for its modern car technology. It has designed award-winning high-speed roadways, digitally networked mobility, and some of the most advanced driverless vehicles. In fact, German patents for driverless cars have doubled in the last five years, and its top three patent areas in 2017 were Transport (11,000+ patents), Electrical Machinery (7,000+ patents), and Mechanical Elements (6,000+ patents). If you wish to join the trend and patent your innovation in Germany, here is a walk-through of the German patent application process.

Several weeks ago, the Antitrust Division of the U.S. Department of Justice announced a positive Business Review Letter (BRL) concluding an eight-month review of Avanci’s new platform for licensing 5G standard essential patents. “In sum, the proposed 5G Platform has the potential to yield efficiencies by reducing transaction costs and streamlining licensing for connected vehicles,” wrote Assistant Attorney General Makan Delrahim, who heads the DOJ Antitrust Division. “Together these efficiencies may allow cellular standards-essential patent owners and vehicle manufacturers to focus resources elsewhere, such as investment in further research and development in emerging 5G technologies and applications. This possibility could enhance competition in these technologies, improve safety, and benefit American consumers.” The finding that the Avanci 5G platform could enhance competition is critically important for Avanci, and positively affects the technology licensing landscape.

With its recent opinion in AAM, Inc. v. Neapco Holdings, LLC, No. 18-1763 (Fed. Cir. July 31, 2020), and a 6-6 stalemate by the court’s active judges on whether to take the case en banc, the Federal Circuit has now adopted—under the rubric of 35 U.S.C. §101—a formalized set of enablement-like requirements for patent claims. For a simple “threshold” eligibility test, section 101 has grown remarkably complex. Indeed, since the Supreme Court’s 2012 Mayo and 2014 Alice decisions re-cast patent eligibility into a “two-step framework,” the Section 101 test adjudges not just subject-matter eligibility and the three “limited” exceptions thereto, but also patentability or “inventive-concept” challenges predicated on comparisons to the prior art, see 35 U.S.C. §§ 102-103. And now the enablement-type requirements imposed by AAM v. Neapco.