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United States: Full Federal Circuit Defers Addressing Venue Based On Presence Of Servers In District - Fenwick & West LLP

On February 5, 2019, in a per curiam order, the United States Court of Appeals for the Federal Circuit denied Google's petition for rehearing en banc, and deferred for another day the question of whether the presence of hardware
Tags: Google, News, United States, Federal Circuit, United States Court of Appeals, West LLP, District Fenwick


United States: Federal Circuit PTAB Appeal Statistics – January 15, 2019 - Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

Through January 15, 2019, the Federal Circuit decided 466 PTAB appeals from IPRs and CBMs.
Tags: News, United States, Federal Circuit, PTAB, Finnegan Henderson Farabow Garrett, Dunner LLP, Federal Circuit PTAB Appeal Statistics


United States: Federal Circuit Digs Deeper Hole For Diagnostic Methods - Foley & Lardner

In Athena Diagnostics, Inc. v. Mayo Collaborative Servs., LLC, the Federal Circuit once again held diagnostic method claims invalid under 35 USC § 101.
Tags: News, United States, Usc, Federal Circuit, Lardner, Athena Diagnostics Inc, Mayo Collaborative Servs LLC


United States: Federal Circuit Holds That Claims Directed To Diagnosing Neurotransmission Or Developmental Disorders Are Invalid For Failing To Recite Patent Eligible Subject Matter - BakerHostetler

In Athena Diagnostics, Inc. v. Mayo Collaborative Servs., LLC, the Federal Circuit affirmed the district court's ruling that claims covering methods for diagnosing neurological disorders by detecting autoantibodies
Tags: News, United States, Federal Circuit, Athena Diagnostics Inc, Mayo Collaborative Servs LLC


A Written Description of the Invention (including how it is made?)

by Dennis Crouch CenTrak v. Sonitor Tech (Fed. Cir. 2019) is a quirky case that basically stands for the (wrongheaded) proposition that the Written Description Requirement does not usually require a description of how to make the invention actually work. Here, largely the court relied on the broad language of  Alcon Research Ltd. v. Barr Labs., Inc. , 745 F.3d 1180, 1191 (Fed. Cir. 2014) (“written description is about whether the skilled reader of the patent disclosure can recognize that what ...
Tags: Law, Patent, Fed, Federal Circuit, ARIAD, Alcon Research Ltd, Sonitor, Dennis Crouch CenTrak, Sonitor Tech Fed, Barr Labs Inc


United States: Federal Circuit Invites Patent Office To Open Pandora's Box - Marshall, Gerstein & Borun LLP

The Office pointed to the drafting history of the petitioner estoppel provision to support its views.
Tags: News, Office, United States, Federal Circuit, Marshall Gerstein, Borun LLP


United States: BPCIA & FDA Steps As Article III Standing From The PTAB? - Ropes & Gray LLP

In Momenta Pharmaceuticals, Inc. v. Bristol-Myers Squibb Co. (here), the Federal Circuit was poised to explore the level of biosimilar legwork that could satisfy Article III
Tags: News, United States, Fda, Bristol Myers Squibb Co, Federal Circuit, Momenta Pharmaceuticals Inc, BPCIA, Gray LLP


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


United States: Joined PTAB Parties & CAFC Appeal Rights - Ropes & Gray LLP

In Mylan Pharmaceuticals Inc. v. Research Corp. Technologies, Inc., (here) the Federal Circuit held that parties joined to an IPR petition have a statutory right of appeal under 35 U.S.C. § 319
Tags: News, United States, Federal Circuit, IPR, Mylan Pharmaceuticals Inc, Gray LLP, CAFC Appeal Rights Ropes, Research Corp Technologies Inc


Case Dismissed: No Standing When Deal Fell Through

Momenta Pharma v. Bristol-Myers Squibb Co. (Fed. Cir. 2019) In this recent decision, the Federal Circuit dismissed Momenta’s appeal — finding that the company lacks standing to appeal its loss before the PTAB.  The decision stands on fairly controversial grounds and in some tension with Supreme Court jurisprudence on appellate jurisdiction requirements.  Still, I suspect it will be cabined-in by its facts and not have a large precedential impact. In 2015, Momenta petitioned for inter partes revi...
Tags: Supreme Court, Law, US, SEC, Patent, Federal Court, Bms, Mylan, Federal Circuit, Momenta, IPR, DC Circuit, U S Constitution, Federal Circuit Although, Momenta Pharma, Bristol Myers Squibb Co Fed


United States: Realtime Data, LLC, v. Iancu: No Requirement To Make Any Finding Of A Motivation To Combine Two References When A Claim Is Invalid As Being Obvious Over A Single Reference - Oblon, McClelland, Maier & Neustadt, L.L.P

The Federal Circuit affirmed the Patent and Trademark Appeal Board's (PTAB) determination that all of the challenged claims of Realtime's U.S. Patent 6,597,812 ("the ‘812 patent")
Tags: News, United States, Federal Circuit, PTAB, Iancu, Neustadt, Oblon McClelland Maier, Trademark Appeal Board, Realtime Data LLC


United States: Federal Circuit Finds A Diagnostic Method Ineligible Under Section 101 - Oblon, McClelland, Maier & Neustadt, L.L.P

In another diagnostic method dispute, the Federal Circuit found the asserted patent claims ineligible under 35 U.S.C. Section 101.
Tags: News, United States, Federal Circuit, Neustadt, Oblon McClelland Maier


United States: The Federal Circuit Provides New Direction On Patent Term Adjustment - Squire Patton Boggs LLP

In a recent Federal Circuit case, Supernus Pharmaceuticals, Inc. v. Iancu, No. 2017-1357 (Federal Circuit, January 23, 2019), the USPTO's calculation of Applicant delay in the determination of Patent Term Adjustment
Tags: News, United States, Uspto, Federal Circuit, Supernus Pharmaceuticals Inc, Iancu


United States: Federal Circuit Affirms PTAB Lead Compound Analysis Upholding Vimpat Lacosamide Patent - Foley & Lardner

The Federal Circuit decision in Mylan Pharmaceuticals, Inc. v. Research Corporation Technologies, Inc., highlights the difficulty of challenging a patent directed to a new chemical entity.
Tags: News, United States, Foley, Federal Circuit, Lardner, Mylan Pharmaceuticals Inc, Research Corporation Technologies Inc


United States: Patent Term Adjustment: The Real Meaning Of Applicant Delay - Mintz

On January 23, 2019, the Federal Circuit decided Supernus Pharmaceuticals, Inc. vs. Iancu and shed light on Patent Term Adjustment (PTA).
Tags: News, United States, Federal Circuit, Mintz, Supernus Pharmaceuticals Inc, Iancu


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


United States: Supernus: Federal Circuit Provides Clarity On USPTO Discretion On Patent-Term Adjustment Calculations - Jones Day

Supernus therefore believed it should not lose more than 100 days of its accumulated term.
Tags: News, United States, Uspto, Federal Circuit


Am I my Server Rack?: Do Edge Nodes Satisfy the Venue Rules?

by Dennis Crouch In re Google (Fed. Cir. 2019) This appeal stems from a pending E.D.Tex. infringement lawsuit filed in 2017. SEVEN Networks, LLC v. Google LLC, 2:17-CV-00442 (E.D. Tex. Aug. 22, 2017).  In the case, SEVEN accused Google of infringing ten of its patents: 8,078,158, titled “Provisioning Applications for a Mobile Device” 8,811,952, titled “Mobile Device Power Management in Data Synchronization Over a Mobile Network With or Without a Trigger Notification” 9,247,019, titled “Mobile A...
Tags: Google, Texas, Law, Patent, Newman, Reyna, Eastern District of Texas, Taranto, Federal Circuit, Cray, Tex, Dennis Crouch, Dyk, Lourie, TC Heartland, Google Fed


Appeals court to Donald Trump's FCC: "Drop dead."

The federal appeals court in the DC circuit has overturned the FCC's decision to make it effectively impossible for people on tribal lands to make use of the federal "Lifeline} program that provides cheap broadband access to poor communities. The order to freeze Native Americans out of Lifeline was typical of the style of Donald Trump's FCC and its chairman, the ex-Verizon executive Ajit Pai, whose arrogant overreach and administrative incompetence means that, time and again, he does not do...
Tags: Verizon, Post, News, Fcc, Telcoms, US, America, First Nations, Commission, Dc, Donald Trump, Trumpism, Pai, Federal Circuit, Ajit Pai, Jon Brodkin Ars Technica


Standing on the Shoulders of those Without Standing

by Dennis Crouch Mylan Pharms. Inc. v. Research Corp. Techs., Inc.  (Fed. Cir. 2019) This post begins with an obviousness discussion, then moves to IPR standing, and finally talks about SAS.  Obviousness: In Mylan, the Federal Circuit affirms a PTAB decision siding with the patentee and holding that RCT’s pharmaceutical compound patent claims were not proven unpatentable (i.e., confirming patentability). The patent at issue is directed toward an enantiomeric isomer (R configuration) of lacosamid...
Tags: Supreme Court, Law, Patent, Board, Mylan, Federal Circuit, IPR, SAS Institute Inc, Dennis Crouch, PTAB, Argentum, Iancu, Joinder, Inter Partes Review IPR, RCT, Mylan Pharms Inc


Another Post on 101 and Statutory Text, and Hopefully my Last

By David Hricik I’ve written on this blog my argument — I think, observation — that the text of the Patent Act does not authorize invalidity, or patentability, to be based upon Section 101.  (Here is one of them.)  Why rant again? First, Dennis on the main page posted here the USPTO’s new guidelines on eligibility. Second, today at the AIPLA mid-winter meeting, Bob Armitage spoke passionately about how  these guidelines are nonsensical and that we will never resolve the 101 problem because it is...
Tags: Supreme Court, Law, Congress, Court, Ethics, Uspto, Rich, Dennis, Federal Circuit, CAFC, David Hricik, Bob Armitage


Self-Harm: Company’s own 102(e) prior art Cancels the Patent

by Dennis Crouch Duncan Parking Techs., Inc. v. IPS Group, Inc. (Fed. Cir. 2019) andIPS Group, Inc. v. Duncan Solutions Inc. (Fed. Cir. 2019) This decision involves parallel appeals from (1) a district court siding with the accused infringer on noninfringement grounds; and (2)  a PTAB IPR decision siding with the patentee confirming patentability. On appeal, the accused infringer won on several grounds, but it appears that at least some of the claims will be found both infringed and valid. In th...
Tags: Law, AIA, Patent, IPS, Schwarz, Federal Circuit, IPR, Dennis Crouch, PTAB, Duncan Parking Techs Inc, IPS Group Inc Fed Cir 2019 andIPS Group Inc, Duncan Solutions Inc Fed


Today, a DC appeals court hears arguments on whether Ajit Pai's act of neutricide will stand

An appeals court in the Federal Circuit is hearing arguments today from plaintiffs who say that Donald Trump's FCC Chairman -- and former telcoms exec -- Ajit Pai violated federal law when he overturned Net Neutrality without considering millions of public comments and expert opinions on the proposal. The hearing will also consider whether Pai had sufficient evidence to reclassify your ISP as an "information service" provider, like Google or Facebook, and thus exempt it from regulations tha...
Tags: Google, Facebook, Post, News, Cable Company Fuckery, Fcc, Net Neutrality, Obama, US, Donald Trump, Pai, Tim Wu, Federal Circuit, Ajit Pai, National Hispanic Media Coalition, Administrative Incompetence


United States: USPTO's Patent Term Adjustment Policies Reigned In Yet Again - Oblon, McClelland, Maier & Neustadt, L.L.P

Since the Federal Circuit's decision in Wyeth v. Kappos, 591 F.3d 1364, 93 U.S.P.Q. 2d 1257 (Fed. Cir. 2010), aff'g, Wyeth v. Dudas, 580 F. Supp. 2d 138, 88 U.S.P.Q.2d 1538 (D.D.C. 2008), which held that the USPTO was
Tags: News, United States, Uspto, Fed, Federal Circuit, Wyeth, Neustadt, Kappos, Dudas, Oblon McClelland Maier


United States: Supreme Court Confirms Secret Sales Can Invalidate Patents - Marshall, Gerstein & Borun LLP

On January 22, 2019, the Supreme Court issued a unanimous decision in Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc., affirming the Federal Circuit's decision
Tags: News, Supreme Court, United States, Federal Circuit, Teva Pharmaceuticals USA Inc, Marshall Gerstein, Borun LLP, Helsinn Healthcare S A


United States: Federal Circuit Corrects USPTO On Reasonable Efforts When Calculating Patent Term Adjustment - Morrison & Foerster LLP

The Federal Circuit ruled on January 23, 2019, that the United States PTO erred in reducing the term of a patent owned by Supernus Pharmaceuticals by 546 days, during which time the company could not have furthered
Tags: News, United States, Morrison, Federal Circuit, Foerster LLP, Supernus Pharmaceuticals, Federal Circuit Corrects USPTO


New PatentlyO Law Journal article: Colleen Chien, Deferring Patentable Subject Matter

This past fall at the Administering Patent Law symposium at Iowa Law, Professor Colleen Chien presented an argument in favor of more intentional experimentation by administrative  agencies such, as the USPTO to test policy concepts and proposed several possibilities.  Below, Professor Chien describes one such project, based on the Merges/Crouch proposal for deferring patentable subject matter analyses in prosecution.  Read the accompanying PatentlyO Law Journal article here: Colleen V. Chien, P...
Tags: Google, Supreme Court, Law, Congress, Iowa, Uspto, Dc, Department Of Homeland Security, Patent, Alice, Federal Trade Commission, Donald, Chien, PAUL, Mayo, Duffy


Inherency: Same Enzyme => Same Enzymatic Activity

by Dennis Crouch In re Ikeda Food Research Co., Ltd. (Fed. Cir. 2019) Ikeda is attempting to patent a glucose sensor using a particular enzyme (“a soluble flavin compound-binding glucose dehydrogenase”) that promotes glucose oxidizing.  U.S. Application No. 12/851,668. One U.S. patent is already issued in the family as well as Japanese , Chinese, and European patents.  In this case, however, the examiner rejected the claims as obvious and the PTAB affirmed.  The Federal Circuit has now also affi...
Tags: Law, Patent, Fed, O'Malley, PTO, Federal Circuit, Tsuji, Ikeda, Dennis Crouch, Southwire Co, PTAB, Par Pharm Inc, TWI Pharm Inc, Cerro Wire LLC, Real Party, In re Ikeda Food Research Co Ltd Fed


United States: Federal Circuit Affirms Obviousness Decision By Board, Discusses Impact Of Standing On Triggering Of §315(b)'s Time Bar - Marshall, Gerstein & Borun LLP

In Hamilton Beach Brands, Inc. v. F'real Foods, LLC, Appeal No. IPR2016-01107 (Fed. Cir. Nov. 16, 2018), the Federal Circuit affirmed the Patent Trial and Appeal Board's final written decision
Tags: News, United States, Federal Circuit, Hamilton Beach Brands Inc, Gerstein, Borun LLP, Time Bar