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COVID-19 Patents

So far the USPTO has issued 148 patents that reference COVID-19 or SARS-CoV-2. I'm sure many-more to come. Link goes to the list: https://t.co/pd6ECKakFw pic.twitter.com/iEq1tTc5oF — Dennis Crouch (@patentlyo) May 7, 2021
Tags: Law, Uspto, Patent, Dennis Crouch


Corporate Lies Lose Patentee Million Dollar Verdict.

by Dennis Crouch Cap Export LLC v. Zinus Inc. (Fed. Cir. 2021) Zinus is the owner of U.S. Patent No. 8,931,123, which covers a particular bed frame that can assembled at home. A key feature of the invention is that back-side of the headboard includes a zippered compartment that can hold all of the pieces.  Rather than simply a bed-in-a-box, it is a bed-in-a-headboard. The district court first sided with the patent challenger and awarded sua sponte summary judgment of obviousness based upon a bed...
Tags: Supreme Court, Law, Patent, Cap, Federal Circuit, Lawrie, Lowrie, Dennis Crouch, Keystone Driller Co, Lourie, Zinus, Cap Export LLC, Zinus Inc Fed, Zinus Colin Lawrie, Mercoid Corp, Mid Continent Inv Co


Big Move: US Supports IP Waiver for COVID Vaccine

by Dennis Crouch In the USA, COVID vaccines have been widely distributed and are now available at no cost almost on-demand for anyone seeking vaccination.  Vaccines are not widely available in most other countries and global COVID cases are again at an all-time high. And, people around the world don’t really trust that Pfizer, Moderna, and J&J are going to be serving them anytime soon.  That is where the TRIPS waiver comes into play. TRIPS:  Countries around the world are asking for a waiver of...
Tags: Usa, Law, India, US, WTO, Pfizer, Biden, Patent, Dennis Crouch, J J Pfizer, Pfizer Moderna, Katherine Tai


Discovery of Prior Settlement Agreements and Common Interest Privilege

by Dennis Crouch In re Modern Font Applications LLC (Fed. Cir. 2021) The Federal Circuit denied MFA’s petition for mandamus on a discovery dispute, and Chief Judge Prost but wrote an interesting short opinion explaining the panel’s reasoning.  In the case, MFA has asserted its U.S. Patent No. 9,886,421 that covers  a method of displaying “non-standard fonts” on your handheld device when accessing a network-document. Alaska Airlines is the defendant in this case and submitted a discovery request...
Tags: Law, Cheney, Patent, Alaska Airlines, Fed, MFA, Federal Circuit, Prost, FRCP, Dennis Crouch, Modern Font Applications LLC Fed, MSTG Inc


Law School Canons: The Spoils of Discovery

Editor’s Note: Avery Welker is a 1L at Mizzou and likely a future patent attorney. He is starting a new series linking law school canonical cases with intellectual property counterparts. You can email ideas for future posts to [email protected]  – Dennis Crouch By Avery Welker The first line of class notes I took in Civil Procedure during our discovery module says, “Spoliation – OLD LEGAL DOCTRINE.” I’m not sure why I felt the need to emphasize that spoliation is an old doctrine at the time, ...
Tags: Law, Google Analytics, Ubs, Hermès, Skyline, Patent, Mizzou, ArcelorMittal, Larsson, Dennis Crouch, Zubulake, Avery Welker, UBS Warburg LLC, Skyline Steel LLC Skyline Plaintiff, PilePro LLC, Skyline Steel LLC


Supreme Court offers Hope on Eligibility Case

by Dennis Crouch American Axle & Manufacturing, Inc.,  v. Neapco Holdings LLC (Supreme Court 2021) The Supreme Court today called for the views of the Solicitor General (CVSG) in this important patent eligibility case. “The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.” In a pair of briefs filed in 2019, then Solicitor General Noel Francisco argued that the Court should hear a new eligibility case to clarify its precedent: “the Court’...
Tags: Supreme Court, Law, Court, Hp, United States, Patent, Hikma, Dennis Crouch, the Court, Trump Administration, Noel Francisco, Berkheimer, American Axle Manufacturing Inc, Biden Administration, Federal Circuit Narrows Application of Hooke, Vanda These


Pre-Invention Innovations Not Captured by Employment Agreement Duty to Assign

by Dennis Crouch Bio-Rad Labs, Inc. v. ITC and 10X Genomics (Fed. Cir. 2021) At its core, this is an employer-inventor dispute in the area of gene sequencing technology.  Saxonov & Hindson co-founded company QuantLife that was bought out by Bio-Rad. The pair then became Bio-Rad employees. At both companies they signed agreements to transfer invention rights to Bio-Rad. In April 2012 the pair left Bio-Rad; in July 2012 formed 10X; and began filing new patent applications in August 2012. These app...
Tags: Law, California, US, Itc, Patent, Fed, Bio Rad, Federal Circuit, Dana Farber, Dennis Crouch, USITC, Ono Pharm Co Ltd, Bio Rad Labs Inc, Saxonov Hindson, Hindson, Saxonov


I’d be interested in your thoughts on this COVID thread.

This is often couched as a patent issue, but it is really a technology transfer (knowhow) issue. Patents are territorial (country-by-country). There are currently no issued patents in any less-developed country that would prevent people from making/using the vaccines there.2/ — Dennis Crouch (@patentlyo) April 29, 2021 via twitter.
Tags: Law, Patent, Dennis Crouch


Amgen v. Sanofi: Generally an Attack on Functional Claim Language

by Dennis Crouch In their forthcoming article, Professors Dmitry Karshtedt, Mark A. Lemley & Sean B. Seymore argue that the Federal Circuit has improperly and unduly limited the ability of chemical and biotech innovators to obtain genus claims — i.e., claims that cover “not just one specific chemical but a group of related chemicals.” The Death of the Genus Claim, 35 Harv. J.L. & Tech. (forthcoming 2021).  Now, the trio (along with others) have taken their prior work and converted it to an amicu...
Tags: Law, Patent, Fed, Amgen, Sanofi, Biogen, Federal Circuit, Amgen Inc, Dennis Crouch, Fed Cir, Seymore, McRO Inc, Bandai Namco Games Am Inc, LDRL, Karshtedt Lemley, Lemley Sean B Seymore


Naked TM Licensing Allowed, even if Insufficient establishing TM Rights

by Dennis Crouch The Federal Circuit has denied en banc rehearing in the interesting case of Authentic Apparel Group, LLC v. US.  In the case, the court enforced an agreement that was pretty-dang-close to a naked trademark license — holding that use of a mark for decoration on clothing still counts as a trademark-use for licensing purposes. In view of the clear shift in the law toward allowing trademark licenses, we do not agree with Authentic that a “decorative” use of a trademark is necessaril...
Tags: Law, US, Army, Patent, US supreme court, Fed, Federal Circuit, Dennis Crouch, Federal Circuit on TM Licensing, Authentic Apparel Group LLC


Punctilious Docketing Review

#appellatetwitter I looked at Federal Circuit appellate dockets from the 10 most recent decided appeals (from District Court). 10/10: EVERY DOCKET included at least one paper that had to be re-filed because of errors. pic.twitter.com/OovbF1t6og — Dennis Crouch (@patentlyo) April 27, 2021
Tags: Law, Patent, District Court, Federal Circuit, Dennis Crouch


Assignor Estoppel at the Supreme Court

by Dennis Crouch The U.S. Supreme Court heard oral arguments on April 21, 2021 in the pending assignor estoppel case of Minerva Surgical Inc. v. Hologic Inc.   The basic idea is that an inventor who signs the oath-of-inventorship and assign rights to a third party is estopped from later challenging the patent’s validity in court.   The inventor here (Truckai) filed for patent protection and assigned rights in his inventions to the company he started. That company then sold rights to Cytyc Corp w...
Tags: Supreme Court, Law, Patent, Usc, Fed, U S Supreme Court, Congressional, Minerva, Lear, Federal Circuit, Hologic Inc, Adkins, Hologic, Scott Paper Co, Dennis Crouch, PTAB


Amgen v. Sanofi: Who Decides Full Scope Enablement

by Dennis Crouch Amgen Inc. v. Sanofi-Aventis (Fed. Cir. 2021) Patent claims typically cover an infinite number of potential infringing embodiments.  This seemingly renders true full-scope enablement an impossible task.  But the metaphysics are an illusion.  If we want valid patents, then there has to be some “good enough” threshold for enablement. The focus in Amgen is a particularly tricky type of claim: genus claim with functional limitations.  Here, the claim is directed to an isolated monoc...
Tags: Supreme Court, Law, Court, Whitney, Wood, Patent, Fed, Hyde, Amgen, Sanofi, Underhill, Federal Circuit, Amgen Inc, Mowry, Dennis Crouch, AK Steel Corp


US vs China – Moving toward Global Injunctions

by Dennis Crouch Ericsson v. Samsung, Docket No. 21-1565 (Fed. Cir. 2021) I wanted to briefly highlight this important pending Federal Circuit appeal involving parallel litigation in both the US and China. The Swedish company wants to litigate in the US, while the Korean company wants to litigate in China. US Case: Ericsson Inc. v. Samsung Elecs. Co., No. 2:20-CV-00380-JRG (E.D. Tex. Jan. 11, 2021) Chinese Case: Samsung Electronics Co., Ltd. et al. v. Telefonaktiebolaget LM Ericsson, (2020) E...
Tags: Texas, Law, China, US, Samsung, Patent, Wuhan, Ericsson, Fed, Samsung Electronics Co Ltd, Federal Circuit, Texas Court, Ericsson Samsung, China US, Dennis Crouch, FRAND


Law School Canons: Summer-y Judgment

Editor’s Note: Avery Welker is a 1L at Mizzou and likely a future patent attorney. He is starting a new series linking law school canonical cases with intellectual property counterparts. You can email ideas for future posts to [email protected] – Dennis Crouch By Avery Welker Grilling weather is coming up soon! You may be in the market for a new grill to set up in your backyard. Well, now you have to make a choice: will you go with the “Backyard Grill” or the “Backyard BBQ?” That’s not a choi...
Tags: Supreme Court, Law, Cotton, Patent, Fed, Variety, Fourth Circuit, Wal Mart Stores Inc, Wal Mart, Edwards, Mizzou, Fifth Circuit, Dennis Crouch, Tolan, Backyard Grill, Variety Stores Inc


Per se abstract?

Is the addition of a network computer implemented social network, with a novel and unconventional rating system, to a method of organizing human activity per se unpatentable as directed to an abstract idea? This is the question presented in NetSoc v. Match — Dennis Crouch (@patentlyo) April 12, 2021 Read the Petition  
Tags: Law, Patent, Dennis Crouch, NetSoc


Grant Rate by Size and Representation

by Dennis Crouch The chart below shows a measure of patent grant rate for a group of 30,000 recently completed patent prosecution cases. I reported earlier on the grant-rate differential based upon entity size classification: Large>Small>Micro. For this chart, I also added-in a second variable of whether the patent application filings were submitted by a registered US patent attorney or agent. As you might expect, those non-represented cases showed a much lower grant rate. The most surprising re...
Tags: Law, US, Uspto, Patent, Dennis Crouch


Another look at USPTO Allowance Rate

by Dennis Crouch Here is a different look at the USPTO grant rate that looks at two numbers for each quarterly period: how many patents issued, and how many applications were abandoned.  These can be added together as a total number of applications disposed-of during the period.  The percentage reported in the chart below is the percent of patents out of that total disposal. These numbers roughly conform to the work that examiners do on a quarterly basis, but I did not count allowances/rejection...
Tags: Law, Patent, Dennis Crouch


MedImmune Licensee Standing Does not Apply to Portfolio License

by Dennis Crouch The Federal Circuit’s new decision in Apple Inc. v. Qualcomm Inc. (Fed. Cir. 2021) offers an interesting standing puzzle. After some heated litigation, Apple licensed 20,000+ Qualcomm patents as part of a six-year covenant-not-to-sue which resulted in the litigation being dismissed with prejudice.  Meanwhile, the parallel inter partes reexaminations (IPRs) moved forward with regard to two particular Qualcom patents within the package of 20,000+. Although the PTAB granted Apple’s...
Tags: Apple, Supreme Court, Law, Medimmune, Qualcomm, Patent, Apple Inc, Federal Circuit, IPR, Genentech Inc, Dennis Crouch, PTAB, MedImmune Inc, Qualcomm Inc Fed


Google v. Oracle and the Mixed Question of Law and Fact

by Dennis Crouch In Google LLC v. Oracle Am., Inc., 593 U. S. ____  (2021), the Supreme Court spends a few pages walking through procedural aspects of the fair use defense. Like many patent law doctrines, fair use is a mixed question of law and fact. The defendant’s use of the asserted copyrighted work and its impact on the plaintiff are typically factual issues that must be proven by evidence as weighed by the factfinder (often a jury). These are questions such as “how much of the copyrighted w...
Tags: Google, Supreme Court, Law, Court, Village, Amd, Oracle, Patent, U S Bank, Federal Circuit, FRCP, Dennis Crouch, Markman, Oracle Am Inc, Westview Instruments Inc, Google LLC


USPTO Grant Rate 2021

by Dennis Crouch The following chart provides one look at USPTO historic patent grant rate for patent applications filed over the past 20 years.  The chart groups together patent applications as of their filing-month and then simply reports the percentage patented, abandoned, and still-pending.  The red-line in the chat excludes the still pending applications and thus reports the grant rate of disposed-of applications. A few notes. There are many ways to calculate a patent grant rate.  This on...
Tags: Law, Uspto, Patent, PTO, Dennis Crouch


The AIA Patents have Arrived

by Dennis Crouch The America Invents Act of 2011 included a major reshuffling of what counts as “prior art” against a given patent. 35 U.S.C. § 102 was substantially rewritten with a new focus on an application’s effective filing date, and zero focus on whether a patent applicant was the “first to invent.”  The new law applies only to post-AIA patents.  The Act defines these as any patent that “contains or contained at any time” a patent claim “that has an effective filing date” on or after Marc...
Tags: Law, US, AIA, Patent, PTA, Dennis Crouch, Optical Systems


Transitions: Andrei Iancu

by Dennis Crouch Former USPTO Director Andrei Iancu has returned to private practice — back at his Southern California firm Irell & Manella. Iancu had been managing partner of the firm before being nominated by President Trump to lead the Patent Office. Congratulations to Dir. Iancu on navigating the tricky political waters of Washington DC these past several years.  I hope that Iancu’s measured success during rather extreme times will encourage others to step-up as well.
Tags: Patent


Certificates of Correction 2021

by Dennis Crouch For the most part, Certificates of Correction are boring, simple, and quite common. 35 U.S.C. § 254 & 255 provide for correction of minor mistakes by the PTO and applicant respectively.  PTO mistakes are fixed when a mistake is “clearly disclosed by the records of the Office.”  For applicant-mistakes, the correction is allowed for “clerical or typographical nature, or of minor character” made in good faith.  Larger mistakes should be corrected via Reissue.  Errors can also be co...
Tags: Law, AIA, Patent, Fed, Board, Honeywell, PTO, Federal Circuit, Dennis Crouch, Fed Cir, PTAB, Arkema Inc, SIPCO LLC, Honeywell Intl Inc, PGR Panel, Election Sys Software LLC


Pre-Litigation Investigation of Patent Validity

by Dennis Crouch I previously wrote about the Federal Circuit’s decision in WPEM, LLC v. SOTI Inc., 2020-1483 (Fed. Cir. Dec. 9, 2020).  The case focuses on pre-filing investigation — the amount of investigation that a patentee must conduct before filing a patent infringement lawsuit. Here, WPEM filed an infringement action against SOTI, but later dismissed the action after learning that the patent claims were very likely invalid.  The district court awarded attorney fees to the defendant based ...
Tags: Law, Circuit, Patent, Federal Circuit, FRCP, Soti, Dennis Crouch, Fed Cir, WPEM LLC, WPEM, SOTI Inc, Accused Technology


Ford v. Montana: Supreme Court on the Scope of Personal Jurisdiction

Note – this is a civil procedure case that I’ve been following. Many lawyers will be interested, even if not directly related to intellectual property. Dennis Crouch Ford Motor Co. v. Montana 8th Judicial District (Supreme Court 2021) Markkaya Gullett was killed in a Ford Explorer crash near her home in Montana.  Gullett’s estate sued Ford on a product liability type claims.  Ford argued that the state lacks personal jurisdiction over the global auto company.  The Supreme Court has sided with Gu...
Tags: Minnesota, Supreme Court, Law, California, Montana, Ford, Patent, Bms, Thomas, Ford Motor Co, The Supreme Court, Roberts, Bristol Myers Squibb Co, Alito, Daimler AG, Kagan


Texas is Big: Albright did not Abuse Discretion in Moving Case from Midland to Waco.

by Dennis Crouch In re True Chemical Solutions, LLC (Fed. Cir. 2021) This is another mandamus petition out of Judge Albright’s courtroom — this time denied.  The patentee True Chem filed the declaratory-judgment lawsuit against PCC in the Midland division of W.D.Tex. back in 2018, before Judge Albright joined the bench.   In 2019 the case was reassigned to Judge Albright who conducted some of the proceedings in his Waco courtroom. Texas is big — the Western District of Texas is larger than most ...
Tags: Texas, Law, Patent, Midland, Albright, Waco, PCC, Federal Circuit, Midland Odessa, Tex, Western District of Texas, Dennis Crouch, Waco Division, True Chemical Solutions LLC Fed, True Chem, Waco Although True Chem


Patent rights, Taxes, and Printing Money

by Dennis Crouch One reason that patents remain a popular government program is that the system does not require any collection of taxes from the populace.  Rather, the government gives away property rights to individuals (or their corporate assignees ) who prove themselves worthy by disclosing a new and useful invention and who pay fees to run the system.  The patent-give-away is different than the land-giveaway associated with American Westward Expansion (often known as “Land Patents”). Altho...
Tags: Law, US, Patent, Midwest, Dennis Crouch, Duell, American Westward Expansion


Who gets to become a Patent Attorney?

by Dennis Crouch The USPTO has released a new Request for Comments about changing the qualification rules to sit for the Patent Bar Exam (“Admission to the Examination for Registration to Practice in Patent Cases”) that are set forth in the General Requirements Bulletin (GRB). To be clear, the proposals in this RFC are quite modest and narrow: Allowing graduate degrees (Masters / Doctoral) in an accepted science/engineering field to count for qualification under Category A. Adding a few additio...
Tags: Law, US, Uspto, Biden, Patent, PTO, Dennis Crouch, Hirono, Drew Hirshfeld, Andrei Iancu, Dir Iancu, Patent Bar Exam, Dir Hirshfeld, Tillis Coons


Exclusive: You keep using that word; I don’t think you know what it means.

The pending Supreme Court case of Warsaw v. Sasso offers an interesting question about whether there is actually some middle ground of patent-related cases subject to dual Federal and State jurisdiction.  by Dennis Crouch There are two different statutes regarding Federal Court exclusive jurisdiction over patent cases.  One giving US district courts exclusive original jurisdiction over US patent cases and the second giving the Federal Circuit exclusive appellate jurisdiction over appeals in pate...
Tags: Supreme Court, Law, Congress, US, Indiana, United States, Patent, Warsaw, Fed, Federal Court, Medtronic, Barrett, Minton, Gunn, Federal Circuit, Sasso



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