Posts filtered by tags: Dennis Crouch[x]


 

More Monkey Business in IP Law

by Dennis Crouch In re: Infinity Headwear & Apparel, Docket No. 18-01998 (Fed. Cir. 2019). This case is fairly silly – The claims at issue cover a hooded blanket and stuffed toy combination — found invalid reexamination. On appeal, the patentee argued that the PTAB had conducted an improper claim construction that “equated a monkey with the claimed hood.” Unlike the present invention, however, Katz’s hooded jacket includes a stuffed monkey attached to, or forming, the back portion of the hood. ...
Tags: Law, Patent, Fed, Katz, Federal Circuit, Dennis Crouch, PTAB


Federal Circuit has No Opinion; Senju Asks the Supreme Court for Its

by Dennis Crouch Back in 2017, I published an article condemning Federal Circuit’s ramped-up practice of issuing R. 36 judgments in cases on appeal from the USPTO.  Rather than simply arguing about policy, I looked at the statute and concluded that Section 144 of the Patent Act requires the Federal Circuit to issue its opinion, not just judgments . Dennis Crouch, Wrongly Affirmed Without Opinion, 52 Wake Forest L. Rev. 561 (2017). Over the past two years many petitioners have raised this argume...
Tags: Supreme Court, Law, Court, Graham, Fda, Patent, U S Supreme Court, Federal Circuit, Ding, Patent Trial and Appeal Board, Patent and Trademark Office, Dennis Crouch, Akorn, Akorn Inc, Wake Forest L Rev, John Deere Co


If you want it, Claim it

by Dennis Crouch Two prosecutions lessons from this case: (1) if you are concerned about obviousness, be careful of broadening statements in the specification; (2) if you want to claim a particular action, particularly claim it.   BTG Int’l. Ltd. v. Amneal Pharms. LLC (Fed. Cir. 2019) [BTG_Decision] This is a consolidated appeal from four different district court cases and five different inter partes review cases.  All the cases focus on BTG’s U.S. Patent No. 8,822,438 (hormone based chemotherap...
Tags: Law, BTG, Patent, District Court, PTO, Federal Circuit, Dennis Crouch, PTAB, BTG Int ' l Ltd, Amneal Pharms LLC Fed


Although Motivated to Try; No Reasonable Expectation of Success

by Dennis Crouch Novartis Pharm. v. West-Ward Pharm. (Fed. Cir. 2019) West-Ward (now known as Hikma) is seeking to make and sell a generic version of the Novartis chemotherapy drug everolimus (Afinitor).  After filing its Abbreviated New Drug Application (ANDA), Novartis sued, alleging infringement of its U.S. Patent 8,410,131. Following a bench trial, the district court sided with the patentee – finding the claims enforceable – not obvious. Novartis Pharm. Corp. v. West-Ward Pharm. Int’l Ltd.,...
Tags: Law, Novartis, Patent, Fed, Hikma, RCC, Pfizer Inc, Procter Gamble Co, Federal Circuit, Dennis Crouch, Apotex Inc, Teva Pharm USA Inc, PHOSITA, Novartis Pharm Corp, West Ward, West Ward Pharm Int ' l Ltd


How Smart is your Cleaning Robot?

by Dennis Crouch iRobot Corp. v. USITC (Fed. Cir. 2019) Back in 2017 iRobot (maker of the Roomba) complained to the USITC about infringing autonomous vacuums being imported into the US.  The patentee won on some grounds, but lost on others. This appeal focuses on iRobot’s U.S. Patent 9,486,924 which allows for scheduling of the cleaning via mobile phone.  After conducting its investigation, the ITC found no infringement .  A divided appellate panel has affirmed. The issue on appeal is claim-co...
Tags: Law, US, Itc, Irobot, Patent, Bryson, Mayer, Federal Circuit, Dennis Crouch, Dyk, iRobot Corp, USITC, USITC Fed


Federal Circuits decides that 100% is different than One Hundred Percent

by Dennis Crouch E.I. DuPont de Nemours & Co. v. Unifrax I LLC (Fed. Cir. 2019) In 2014, DuPont sued Unifrax for infringing its patented flame-barrier that is both lightweight and thin. U.S. Patent 8,607,926 (“Composite Flame Barrier Laminate for a Thermal and Acoustic Insulation Blanket”). The jury sided with DuPont — finding the asserted claims infringed and not proven invalid.  Over a dissent from Judge O’Malley, the Federal Circuit has affirmed — finding that substantial evidence supports th...
Tags: Law, Uspto, DuPont, AIA, Patent, O'Malley, Reyna, Federal Circuit, Dennis Crouch, Dupont De Nemours Co, Unifrax, Federal Circuits, Unifrax I LLC Fed, Cecil Quillin


Does a “Blocking Patent” also Block Objective Indicia of Nonobviousness

by Dennis Crouch Acorda Therapeutics, Inc., v.  Roxane Laboratories, Inc. (Supreme Court 2019) Obviousness is the core doctrine of patentability and primary focus of both patent examination and post issuances PTAB challenges.  In this case, Acorda has asked the U.S. Supreme Court to spend some time on this important doctrine — and particularly consider the role of objective indicia of nonobviousness such as “commercial success, long felt but unsolved needs, [and] failure of others.” Quoting Deer...
Tags: Law, Congress, Court, US, Merck, Ap, Graham, Fda, Patent, Fed, U S Supreme Court, Newman, Acorda Therapeutics Inc, Microsoft Corp, Elan, Merck Co


Infringing by Using a System vs Making/Selling the System

by Dennis Crouch Omega Patents LLC v. CalAmp Corp. (Fed. Cir. 2019) Omega’s patents cover remote control and monitoring systems for vehicles.  The defendant, CalAmp, helps companies and governments monitor their vehicles (location and status, such as battery health and vehicle speed).  In the infringement trial, a Florida jury sided with the patentee – finding the patents willfully infringed and not invalid.  The district court then trebled the damages and awarded attorney fees — for a tidy sum...
Tags: Motorola, Florida, Law, Patent, Omega, Fed, Federal Circuit, CalAmp, Dennis Crouch, Intellectual Ventures, Omega Patents LLC, CalAmp Corp Fed, Centillion Data Sys LLC, Qwest Commc


Eligibility Train Wreck Continues its Skid: Skidmore Deference for the PTO on Eligibility

by Dennis Crouch A key point of argument and policy over the past decades has been the level of authority given to the USPTO as the government’s expert patent law agency.  When the USPTO makes a decision — is that decision respected by other tribunals?  At times the agency is given substantial deference (factual conclusions made by the PTAB), but other agency decisions are also regularly reviewed de novo without deference.  With regard to interpretation of substantive patent law, PTO determinat...
Tags: Law, Uspto, Patent, Cleveland Clinic, Moore, PTO, U S Patent and Trademark Office, Federal Circuit, Chakrabarty, Dennis Crouch, Fed Cir, PTAB, Diehr, Skidmore, Swift Co, Dir Iancu


The IP Section — Stream the First Four Episodes

by Dennis Crouch I first worked with Wes Austin back in 2006 as he developed his Dunes CLE program and later followed with some interest his Utah-based patent firm Austin-Rapp.  As the image shows below, Austin has expanded from patent law into comedy as well.  His new sitcom – THE IP SECTION – merges the two (as well as Mormonism) and stars a patent lawyer who wants to be a stand-up comedian. Watch the series here: The first four episodes are available for streaming on YouTube: https://www.you...
Tags: Utah, Law, Austin, Patent, Dennis Crouch, Wes Austin, Austin Rapp


The Role of Profit Disgorgement in IP Law

by Dennis Crouch In its new petition to the Supreme Court, Romag asks “whether willful infringement is a prerequisite for an award of an infringer’s profits.”  In utility patent law, courts have held that disgorgement of the infringer’s profits is never available as a remedy.  That option was eliminated from the Patent Act in 1946.  In design patents, however, disgorgement is the ordinary remedy. Romag’s case falls under a different law (Trademark Law) and statutory scheme (The Lanham Act).  Sec...
Tags: Law, Connecticut, Patent, First Circuit, U S Supreme Court, Federal Circuit, Dennis Crouch, 1st Circuit, Fossil Inc, Romag, Supreme Court Romag, U S Supreme Court Romag Fasteners Inc


Federal Circuit: Hardening the Line on Method-of-Treatment Claims

by Dennis Crouch This case focuses on patents covering the opioid drug oxymorphone that Endo sells as Opana ER.  In 2017, the FDA requested that (reformulated) Opana ER be removed from the  market in response to the high risk of its illicit use.  Endo had previously pulled Opana ER from the market in 2012 and then re-launched in a “non-crushable form.”  However, that form continued to be abused (including by liquefying and injecting). In response to a new FDA request, Endo again removed the refo...
Tags: Law, Fda, Patent, Fed, Mayo, Federal Circuit, Endo, Endo Pharmaceuticals Inc, Dennis Crouch, Fed Cir, Vanda, Vanda Pharmaceuticals Inc, Teva Pharmaceuticals USA Inc Fed, West Ward Pharmaceuticals International Ltd, Natural Alternatives International, Creative Compounds LLC


A Diligent Delay – Claiming Priority to Invention Dates.

by Dennis Crouch In its final judgment, the Patent Trial & Appeal Board (PTAB) found against Arctic Cat — finding all of the challenged claims unpatentable.  On appeal, the Federal Circuit has rejected the judgment — holding that the Arctic Cat patent claims should be given priority as of their invention date rather than simply the priority filing date.  This is a case were the patent claims appear valid under pre-AIA law, but would be invalidated if AIA prior art rules applied.  U.S. Patent Nos...
Tags: Law, United States, AIA, Patent, Phillips, Tyco, PTO, Boyd, Federal Circuit, Dennis Crouch, Patent Trial Appeal Board PTAB, PTAB, Arctic Cat, Actic Cat


Unauthorized Practice of Patent Law and State Regulators

by Dennis Crouch People v. Dak Steiert and Intelligent Patent Services, LLC (Co. 2019) A recent decision by the Colorado Supreme Court has ordered Mr. Dak Steiert (and his company Intelligent Patent Services) to cease unauthorized practice of law in Colorado. Steiert’s website (expertpatentlaw.com) touted its patent expertise: “our patents are drafted entirely by patent attorneys with at least 5 years experience. Unlike any other firm, we do not use paralegals to draft patents. we don’t let rook...
Tags: Supreme Court, Law, Colorado, Missouri, Uspto, Patent, Colorado Supreme Court, Michael McCabe, Dennis Crouch, Janson, Eagle County Colorado, LegalZoom com Inc, Dak Steiert, Intelligent Patent Services LLC, Intelligent Patent Services, Colorado Steiert


Network Monitoring and

by Dennis Crouch It appears that the Federal Circuit has sharpened its blades and is now slicing the bologna extra thin.  This results-oriented decision unfortunately shades-facts and provides no clarity in its legal analysis of eligibility. While I agree that this network security invention should be eligible for patenting – the court’s analysis does not provide a convincing foundation for that result.  SRI International, Inc. v. Cisco Systems, Inc. (Fed. Cir 2019) At the close of trial, the ju...
Tags: Supreme Court, Law, Cisco, Patent, Fed, Robinson, O'Malley, Federal Circuit, Stoll, Dennis Crouch, Lourie, Vanda, Internet Security Systems Inc, SRI International Inc, Cisco Systems Inc Fed, Electric Power Group


Broadened Claims and Written Description

by Dennis Crouch Sprint Communications Co., L.P. v. Time Warner Cable, Inc. (Fed. Cir. 2019) (Modified Opinion)(Original Opinion) In its original decision in the case, a 2-1 appellate panel upheld a jury’s $140 million verdict in favor of the patent holder Sprint.  Time Warner petitioned for rehearing on two grounds: (1) damages apportionment; and (2) written description requirement. In response, the appellate panel has slightly modified its original opinion — but only to better explain its dama...
Tags: Law, Time Warner, Sprint, Voice, Patent, Chen, Bryson, Mayer, Georgia Pacific, Dennis Crouch, Sprint Communications Co L P, Time Warner Cable Inc Fed, Sprint Time Warner


The invention here is a treatment claim — that is therefore patent eligible. 

by Dennis Crouch The decision here is an important case adding substantial nuance to the product and law of nature exceptions. Natural Alternatives Int’l. Inc. v. Creative Compounds, LLC (Fed. Cir. 2019) Earlier this week I wrote about a separate Natural Alternatives reexamination appeal pending before the US Supreme Court on the issue of improper priority claims. The case at hand focuses on patent eligibility.  Natural Alternatives sued Creative for infringing six of its patents covering variou...
Tags: Law, Patent, US supreme court, Moore, Reyna, Federal Circuit, Wallach, Chakrabarty, Dennis Crouch, Vanda, Natural Alternatives Int ' l Inc, Creative Compounds LLC Fed


Supreme Court Patent Rundown

by Dennis Crouch Two patent cases are pending before the Supreme Court on their merits: Return Mail, Inc. v. United States Postal Service, No. 17-1594 (Can a US Gov’t entity petition for AIA review?) Iancu v. NantKwest, Inc., No. 18-801 (Are attorney fees automatically shifted in Section 145 Civil action to obtain patent?) Neither of these cases address core patent law issues and so their outcome will have little impact on patent law practice. The Court has indicated some interest in four ...
Tags: Supreme Court, Law, US, AIA, Patent, United States Postal Service, Illumina Inc, PTO, Yahoo Inc, United States Patent and Trademark Office, IPR, Intersil, Dennis Crouch, Atlanta Gas Light Company, Mylan Pharmaceuticals Inc, PTAB


Ex Post Breaks in the Chain of Priority

by Dennis Crouch Patent families generally require a chain of copendency.  A later filed application may claim the same priority of an earlier-filed application so long as the later is filed while the earlier is still pending (not yet patented, abandoned, or otherwise terminated).  This pending Supreme Court petition focuses on the situation where the earlier-filed application is amended to alter its priority claim — and asks What happens to the later-filed application’s priority claim . Natura...
Tags: UK, Supreme Court, Law, Uspto, Patent, Federal Circuit, Dennis Crouch, Intellectual Property Rights TRIPS, Iancu Supreme Court, Natural Alternatives


Presumption of Nexus or “Presumptions All the Way Down”

by Dennis Crouch Xactware Solutions, Inc. v. Eagle View Techs., Inc. (Fed. Cir. 2019) Both of these companies use drones to measure houses — their reports are then used for roofing, solar, and insurance estimates. In 2015, Eagle View sued Xactware for patent infringement — that case is ongoing.  Meanwhile, Xactware filed a series of inter partes review petitions – the subject of the appeal here. For its part, the PTAB agreed to hear the IPRs — finding initially that the petitions had merit.  Ult...
Tags: Google, Law, Patent, Fed, Federal Circuit, Dennis Crouch, PTAB, Xactware, Xactware Solutions Inc, Eagle View Techs Inc Fed, Williamson Tobacco Corp, Philip Morris Inc


Supreme Court will hear Section 145 Attorney Fees Case

by Dennis Crouch The Supreme Court has granted writ of certiori in Iancu v. NantKwest Inc. on the question: Whether the phrase “[a]ll the expenses of the proceedings” in 35 U.S.C. § 145 encompasses the personnel expenses the United States Patent and Trademark Office incurs when its employees, including attorneys, defend the agency in Section 145 litigation. When an examiner refuses to allow an applied-for patent, the applicant can appeal to the USPTO’s internal administrative board (PTAB). If st...
Tags: Supreme Court, Law, Uspto, Patent, Hyatt, Fed, Court of Appeals for the Federal Circuit, Federal Circuit, United States Patent and Trademark Office, Rimini Street Inc, Dennis Crouch, Iancu, NantKwest Inc, Kappos, Oracle USA Inc


Court: Pepcid Complete Generic Does not Provide “Immediate Relief” and Therefore Does not Infringe

by Dennis Crouch This case provides an example of the all-elements-rule of infringement.  Here, the patentee failed to prove that the accused infringer each-and-every element of the claimed invention.  Here, the failed element was providing “immediate relief” after administration of the generic Pepcid Complete   Brigham & Women’s Hospital, Inc., v. Perrigo Company (Fed. Cir. 2019) (non-precedential) Brigham’s U.S. Patent 5,229,137 covers a method of treating heartburn using H2-blockers and antac...
Tags: Law, Massachusetts, Patent, Johnson Johnson, Brigham, Wolfe, Perrigo, Federal Circuit, Dennis Crouch, ANDA, Orange Book, Pepcid Complete Brigham Women 's Hospital Inc, Perrigo Company Fed, Pepcid Complete However, FDA Orange Book, Pepcid Complete


Hikma Case Set for Supreme Court Consideration

by Dennis Crouch Hikma Pharmaceuticals USA Inc. v. Vanda Pharmaceuticals Inc. (Supreme Court 2019) Briefing is now complete in this important eligibility case pending before the Supreme Court. Hikma’s petition presents the following question: Whether patents that claim a method of medically treating a patient automatically satisfy Section 101 of the Patent Act, even if they apply a natural law using only routine and conventional steps Hickma’s question clearly mischaracterizes the Federal Circui...
Tags: Supreme Court, Law, Stanford, Uspto, Patent, Prometheus, Nyu, Hikma, Mayo, Federal Circuit, Ariosa, Dennis Crouch, Mark Lemley, Vanda, Lisa Larrimore Ouellette, Hikma Pharmaceuticals USA Inc


Walker-Process Antitrust Case is Back Before the Federal Circuit

by Dennis Crouch The Court of Appeals for the Federal Circuit (CAFC) has exclusive appellate jurisdiction over any “appeal from a final decision of a district court of the United States . . . in any civil action arising under . . . any Act of Congress relating to patents.”  28 U.S.C. § 1295(a)(1).  “Arising under” jurisdiction clearly include patent cases, but it also includes a “special and small category” of cases that don’t directly arise under the Patent Act, but involve patents decisions a...
Tags: Supreme Court, Law, Congress, United States, Sherman, Patent, Fed, Newman, Fifth Circuit, PTO, Clayton, Patent Office, Minton, Gunn, Federal Circuit, 5th Circuit


Cancelling a TM License via Bankruptcy

by Dennis Crouch This week the Supreme Court heard oral arguments in Mission Product Holdings v. Tempnology.  The setup for the case involves a trademark licensor who filed for bankruptcy.  The basic question is whether that license is an executory contract that can be rejected by the bankruptcy trustee. And, if it is rejected, does the licensee retain any rights to use the mark — is the rejection equivalent to termination of the license? 11 U.S.C. § 365, indicates plainly that “the [bankruptcy]...
Tags: Supreme Court, Law, Congress, Mission, Patent, First Circuit, Sotomayor, Trustee, 4th Circuit, Respondent, Seventh Circuit, Dennis Crouch, Lubrizol, Sunbeam Products Inc, Spinelli, Zachary Tripp


Return Mail: We start from the baseline that the government is not a person

by Dennis Crouch [Oral Arguments Transcript] Today, the Supreme Court heard oral arguments in the business method review case of Return Mail Inc. v. U.S. Postal Service.  The basic question in the case is whether the United States government (here the USPS) counts as “a person who is not the owner of a patent.”  If the US is a person, then it has standing to file a petition for inter partes review, post grant review, covered business method review. See 35 U.S. Code § 321.* Question presented: Wh...
Tags: Supreme Court, Law, Congress, US, United States, US Postal Service, Usps, Uspto, AIA, Patent, Ginsberg, Stewart, Stevens, Ginsburg, U S Postal Service, PTO


Court Awards $15,000 for Linguine Car Wash Massacre

by Dennis Crouch Artist Christopher Boffoli is known for his detailed photographs contrasting small people with large food. In 2015, Atemis LLC allegedly posted a couple of images of Boffoli works on Facebook and mis-attributed the works to other artists in the same small-people-large-food genre.  Atemis has a food-ordering app called “Let Eat Go” and the FB posts were in conjunction a FB page for the app. Two years later – December 2017, Boffoli discovered the use of his images and then sued f...
Tags: Facebook, Law, Washington, Delaware, Patent, FRCP, Dennis Crouch, Christopher Boffoli, Boffoli, Atemis


User Interface Claims are Technological and Thus Not Subject to Business Method Review

by Dennis Crouch IBG LLC v. Trading Technologies Int’l (Fed. Cir. 2019) (non-precedential) This appeal stems from Covered Business Method (CBM) Review decisions on four related patents owned by TT.  The PTAB instituted all four CBM reviews. However, by the time of final decision, two of the challenged patents had been already upheld on eligibility by the Federal Circuit.  For those two patents, the PTAB followed the court’s lead and found the patents were directed to eligible subject matter. How...
Tags: Law, AIA, Patent, Fed, TT, Federal Circuit, Dennis Crouch, PTAB, Covered Business Method CBM, Trading Technologies, Business Method Review, IBG LLC, Trading Technologies Int


Words of Ambiguity in Specification Save patent Scope

by Dennis Crouch Continental Circuits LLC v. Intel Corp (Fed. Cir. 2019) Claim-construction used to be the bread-and-butter of Federal Circuit decisions.  That standard was of course upset by the onslaught of eligibility decisions from district courts and BRI obviousness cases out of the PTAB. The patents at issue here all relate to circuit board construction – and dealing with the problem of delamination. The claimed solution is uses “a unique surface structure . . . comprised of teeth that are...
Tags: Law, Patent, Phillips, Federal Circuit, Dennis Crouch, Continental Circuits LLC, Intel Corp Fed


Diagnosis: Ineligible

by Dennis Crouch Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC (Fed. Cir. 2019) There is a lot to unpack in this decision, and so this is just a small discussion of an important Federal Circuit opinion – DC Mayo is involved in another diagnostic method patent dispute — and again has come out on-top with a finding that the asserted patent claims are ineligible under 35 U.S.C. 101. That district court finding has now been affirmed on appeal, although subject to a strong dissent from...
Tags: Law, Patent, Prometheus, Fed, Newman, Mayo, Federal Circuit, Stoll, Athena, Dennis Crouch, Lourie, Vanda, Athena Diagnostics Inc, Vanda Pharm Inc, Mayo Collaborative Services LLC Fed Cir, DC Mayo