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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


Prisoners Enforcing their Rights

Here is the outcome of a twitter poll on prisoner lawsuits. The poll was prompted by the pending lawsuit of Tormasi v. Western Digital. Tormasi is a patentee and has sued Western Digital for patent infringement.  The district court dismissed his case and that finding was affirmed by the Federal Circuit.  Both courts held that as a prisoner in N.J. state prison, Tormasi has lost his right to conduct any business, including enforce his patent rights.   The case is pending on a petition for writ o...
Tags: Law, Patent, Western Digital, Tormasi, Western Digital Tormasi, Federal Circuit Both


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


Invention of a Slave: 2021 Redux

by Dennis Crouch Tormasi v. Western Digital, Docket No. 20-1396 (Supreme Court 2021) Walter Tormasi is a prisoner in the New Jersey state prison system. He is serving a life sentence for murdering his mother when he was 16 years old after apparently receiving encouragement from his father, Attila. Tormasi is also a patentee.  His U.S. Patent No. 7,324,301 covers a computer hard-drive that allows for “simultaneously and independently” reading and/or writing on different carrier surfaces within t...
Tags: Supreme Court, Law, United States, New Jersey, Patent, Western Digital, Lewis, Trenton, Chen, Casey, Federal Circuit, Stoll, Wallach, John Kane, New Jersey New Jersey, Brooks Kushman


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


USPTO hiring hundreds of new patent examiners

From the USPTO: Qualified engineers, scientists, and graphic artists can apply now. The United States Patent and Trademark Office (USPTO) is seeking soon-to-be graduates and professionals with backgrounds in graphic design/art, as well as engineers with backgrounds in biomedical, computer, electrical, and mechanical engineering to apply for hundreds of entry-level patent examiner positions in Alexandria, Virginia. Patent examiners play a critical role in the agency’s efforts to foster innovation...
Tags: Law, Uspto, Patent, Alexandria Virginia, United States Patent and Trademark Office USPTO


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Andrea Shalal and Steve Holland: White House Considering Intellectual Property Waiver for COVID-19 Vaccines (Source: Reuters) Mikey Campbell: Apple Roped Into Juniper Networks Patent Lawsuit (Source: Apple Insider) Atty. Andrea Berenbaum: Federal Court upholds Health Canada’s Strict Interpretation of Patent Listing Deadline for KEYTRUDA Formulation Patent (Source: JD Supra) Alessandro Mascellino: Apple Granted Patent for Face Biometrics with Hybrid Illuminat...
Tags: Google, Law, Uspto, Oracle, Patent, Federal Court, Health Canada, Steve Holland, Andrea Shalal, Jorge L Contreras, Bits and Bytes, Juvan Bonni, Wissam Aoun, Daryl Lim, COVID, Reuters Mikey Campbell


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


IDEA Act (S.632)

I previously mentioned the IDEA Act (S.632) that is pending before the Senate.   The proposal would have the PTO collect demographic information about patent inventors. This includes “including gender, race, military or veteran status, and any other demographic category that the Director determines appropriate.”  The information is to be kept confidential and away from the application file (so that examiners are not biased).The proposal states that the collection is “voluntary . . . [information...
Tags: Law, Senate, Patent, Cruz, Sen Ted Cruz, PTO


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


The Public Private Nature of Patents

Patent law is a quirky mix of private and public law.  Individual inventors and their assigns are granted private property rights and the freedom-of-contract to license those rights as they see fit.  But, patents are designed to serve a public purpose, and  the courts have occasionally struck-down private agreements that go too-far — especially agreements that frustrate the invalidation or cancellation of wrongfully issued patents. In Kannuu Pty Ltd., v. Samsung Electronics Co., Ltd. (Fed. Cir. ...
Tags: Minnesota, Law, Samsung, FSC, Patent, Usc, NDA, Federal Circuit, IPR, Richard Epstein, Shawn Miller, PTAB, Jay Kesan Illinois, Mark Lemley Stanford, Inter Partes Review IPR, Brian Love


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


EDTex vs WDTex

Here is a simple chart counting law review articles discussing both patent law and either the “Eastern District of Texas” or “Western District of Texas” (or both).  Because of some law review delays and dating-games, Westlaw can really only provide data through 2019. W.D.Tex. is now the most popular district court for patent infringement claims, followed by Delaware.  E.D.Tex. still caries weight, but is no longer the go-to-district (because of venue restrictions).
Tags: Texas, Law, Delaware, Patent, Westlaw, Tex, Western District of Texas


Want an Eligible Patent: Explain the Technological Advance in Sufficient Detail

WhitServe LLC v. Dropbox, Inc., 19-2334 (Fed. Cir. 2021) (nonprecedential) The district court dismissed WhitServe’s patent infringement complaint with prejudice — finding the claims ineligible as a matter of law.  On appeal, the Federal Circuit has affirmed. WhitServe is the brainchild of patent attorney and inventor Wesley Whitmyer of Whitmyer IP Group.  The patent at issue here. U.S. 8,812,437. Claim 10, the focus of the case, is directed to an internet-based data-backup system and requires e...
Tags: Law, Patent, Fed, Federal Circuit, Dropbox Inc, Alice Mayo, WhitServe LLC, Wesley Whitmyer


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Mallory Hackett: AliveCor Aims to Ban Sales of Apple Smartwatches, Claiming Patent Infringement (Source: MobiHealthNews) Dom Amato: Patently Confusing: Vermont Businesswoman Testifies on Tricky US Patent System (Source: WCAX) Sean Silcoff: IP Experts Say Ottawa’s Proposed Regulations Could Harm Their Business and Drive Up Patent Costs for Domestic Innovators (Source: The Globe and Mail) Joff Wild: Aon’s $400m IP Fund; Nokia Seals Major Lenovo deal; LG Touts ...
Tags: Apple, Supreme Court, Law, US, Uspto, Globe, Vermont, Patent, Ottawa, Brad, Aon, Charles Duan, Macek, Filipe Espósito, Juvan Bonni, Mallory Hackett


Federal Circuit Transitions

As expected, the Federal Circuit has announced the upcoming transition of Chief Judge from Judge Prost to Judge Moore scheduled for May 22, 2021.  Judge Prost has served as chief for seven years, and Judge Moore will begin her seven year term.  According to the court announcement, Judge Prost will continue in active service. Congratulations to the Court on a successful transition. Earlier this year, Judge Wallach announced his upcoming move to senior status set for May 31, 2021.  President Biden...
Tags: Law, Biden, Patent, Moore, Federal Circuit, Wallach, Prost, United States Court of Appeals, Tiffany Cunningham, Federal Circuit Transitions, Moore Tiffany Cunningham


Guest Post by Prof. Dmitry Karshtedt: Nonobviousness and Time

Dmitry Karshtedt is an Associate Professor of Law at GW Law whose work I’ve followed for years.  Below he introduces the core idea underlying his new article on nonobviousness forthcoming in the Iowa Law Review.  -Jason Nonobviousness and TimeDmitry Karshtedt Over the years, courts and commentators have said many thoughtful things about secondary considerations evidence and its role in the law of § 103, and reasonable minds have expressed significant disagreement about the value of this evidence...
Tags: Apple, Supreme Court, Law, Time, Samsung, Iowa, Graham, Patent, John Deere, Federal Circuit, Teleflex, KSR, PHOSITA, Dmitry Karshtedt, Jason Nonobviousness, Graham Supreme Court


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


Federal Circuit Moves Another Case Out of W.D.Tex.

In re TracFone Wireless, Inc. (Fed. Cir. 2021) In its second go-round in the case, the Federal Circuit has ordered District Court Judge Albright to grant TracFone’s motion to transfer its case to the S.D.Fla. on convenience grounds under 28 U.S.C. § 1404(a).  “We conclude that the district court clearly abused its discretion in denying transfer under § 1404(a).”  Generally, Section 1404(a) provides substantial discretion to the district court to determine whether or not to transfer a case to a d...
Tags: Florida, Law, Arizona, Delaware, Patent, Miami Florida, Albright, Fla, Federal Circuit, Mankato, Waco Texas, TracFone, Tex, TracFone Wireless Inc Fed, Patentee Precis, Karvenon


Sua Sponte Claim Construction

Olaf Sööt Design, LLC v. Daktronics, Inc. (Fed. Cir. 2021) Sööt’s patent covers a winch system used for major theatre productions.  A jury found Daktronics Vortek product infringed under the doctrine of equivalents and awarded $1 million in damages. On appeal, the Federal Circuit reversed, holding that “Under the proper construction, the Vortek product does not infringe claim 27 either literally or under the doctrine of equivalents.” The problem with this decision is that neither party appealed ...
Tags: Law, Patent, Federal Circuit, Markman, Soot, Olaf Sööt Design LLC, Sua Sponte Claim Construction, Daktronics Inc Fed, Daktronics Vortek


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


Patently-O Bits and Bytes by Juvan Bonni

Recent Headlines in the IP World: Kim Yun-Mi: BMS, Pfizer Win Final Suit for Eliquis Patent (Source: Korea Biomedical Review) David Hyman: Rakovina Therapeutics Inc. Receives European and Canadian Patents on Kt-2000 Series PARP-Inhibitors (Source: Cision) Susan Decker and Laurel Brubaker Calkins: Apple Wins New Trial in $506 Million Patent-Damages Award (Source: Bloomberg) Christopher Yasiejko: Peloton’s ‘Revolutionary’ Technology Faces Test in Patent Wars  (Source: Bloomberg) Gustavo Henri...
Tags: Law, Uspto, Toyota, Patent, Laurel Brubaker Calkins, David Hyman, Dmitry Karshtedt, Korea Biomedical Review, Bits and Bytes, Juvan Bonni, Hanley Flight Zimmerman, Kim Yun Mi, Rakovina Therapeutics Inc, Cision Susan Decker, Bloomberg Christopher Yasiejko, Bloomberg Gustavo Henrique Ruffo


Supreme Court on Patent Law for April 2021

by Dennis Crouch Here is a rundown of what’s happening with US Supreme Court cases: Decided: The court recently decided Google LLC v. Oracle America, Inc., holding that Google’s use of Oracle’s Java API was a fair use and therefore not copyright infringement.  The court made no determination as to whether the API was actually copyrightable in the first place. The case does not expressly decide any patent law issues, but does provide some guidance as to how courts should approach mixed questions ...
Tags: Google, Supreme Court, Law, Senate, US, United States, Commerce, Oracle, Patent, US supreme court, Stuart, Ftc, Kessler, Illumina Inc, Rick, PTO


Non-Transitory Innovation?

The (revised) chart above shows the percentage of issued utility patents whose claims include at least one reference to the term non-transitory. The chart does not reflect any kind of innovation transformation.  Rather, in a February 2010 memo, PTO Dir. Kappos announced that claims directed toward information stored in computer readable memory would be rejected as ineligible under Section 101. The USPTO recognizes that applicants may have claims directed to computer readable media that cove...
Tags: Law, US, Uspto, Patent, Fed, PTO, Gentry Gallery Inc, Berkline Corp, Dir Kappos, Gaz Pat Office


[Sponsorship Post]

Patently-O is sponsored by the MBHB firm.
Tags: Law, Patent, Sponsorship Post


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



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