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May 7, 2024 | 
mondaq.com | Chad Landmon |Matthew Murphy |Ross Blau
As discussed in November and December, the FTC has placed improper Orange
Book patent listings squarely in its crosshairs.
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Apr 30, 2024 | 
mondaq.com | Matthew Murphy
Today, the U.S. Federal Trade Commission ("FTC")
adopted a final rule (3-2) banning new non-compete agreements for
both senior executives and non-senior executives. Companies may
continue to enforce existing non-compete agreements entered into
with "senior executives." However, preexisting
non-compete agreements for all other workers will become
unenforceable (recission not required) and companies will be
obligated to provide adequate notice to all such workers.
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Apr 30, 2024 | 
mondaq.com | Chad Landmon |Matthew Murphy |Thomas Hedemann
Two weeks ago we discussed Vanda
Pharmaceuticals' ambitious cert petition asking the
Supreme Court to discontinue the "reasonable expectation of
success" standard for patent obviousness that for
decades has been a mainstay of patent law.
Vanda argued that the Court should instead adopt a
"predictable results" standard, which would have made
patents more difficult to challenge and thereby significantly
impacted the pharma and biologics industries.
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Apr 17, 2024 | 
mondaq.com | Chad Landmon |Matthew Murphy |Thomas Hedemann
Among the most established standards in patent law is that
obviousness requires a motivation to combine the prior art with
"a reasonable expectation of success." The Federal
Circuit alone has employed the "reasonable expectation"
formulation in hundreds of opinions spanning the past four decades.
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Apr 16, 2024 | 
mondaq.com | Matthew Murphy
A claimant's recovery of attorneys' fees in a trade
secret action ordinarily reflects an overwhelming success at trial. The claimant would have necessarily proved (at least under federal
law) that its trade secret had been willfully or maliciously
misappropriated. Moreover, trade secret laws generally permit the
claimant to recover its actual loss, unjust enrichment damages, or
a reasonable royalty for the misappropriation.
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Apr 2, 2024 | 
mondaq.com | Ted Mathias |Matthew Murphy
Puma Biotechnology is the latest victim of standing requirements
in patent cases that continue to wreak havoc on plaintiffs'
ability to recover a full measure of damages.
In Puma Biotechnology, Inc. v. AstraZeneca Pharmaceuticals
LP, 21-cv-01338-MFK, 2024 WL 1157120 (D. Del. Mar. 18, 2024),
the court granted AstraZeneca's motion to dismiss Puma for lack
of constitutional standing under Article III. Puma was a
co-plaintiff with the asserted patents' owner, Wyeth LLC.
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Mar 11, 2024 | 
mondaq.com | Matthew Murphy
The America Invents Act ("AIA") bars a person from
obtaining a patent when the "claimed invention" had been
"on sale" more than one year before the filing date of
the patent. 35 U.S.C. § 102(a)(1).
Acesulfame potassium ("Ace-K") is an artificial
sweetener used in foods, drinks, and medicines. In 2015, Celanese
International Corporation ("Celanese") filed a patent
claiming an improved method of preparing Ace-K.
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Jan 19, 2024 | 
mondaq.com | Matthew Murphy
A well-known idiom - widely credited to Ben Franklin in the
1700s - is that an ounce of prevention is worth a pound of
cure. Yet, few companies actively train their personnel to
recognize the risk of a trade secret misappropriation claim posed
by (overly) aggressive business tactics. The cost of an hour-long
training session pales in comparison to the cost of defending, even
if prevailing in, a trade secret action.
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Nov 29, 2023 | 
mondaq.com | Ted Mathias |Matthew Murphy
The Federal Circuit's decision on claim construction,
Barrday, Inc. v. Lincoln Fabrics, Inc., 2023-1903, 2023 WL
7871688 (Fed. Cir. Nov. 16, 2023), takes a dizzy dive into the
age-old question of when a claim should be construed more narrowly
than its plain language would suggest. Barrday is required
reading for patent litigators because it touches on so many
doctrines of claim construction.
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Nov 22, 2023 | 
mondaq.com | Matthew Murphy |Brian Johnson
The U.S. International Trade Commission (ITC) has broad power to
issue exclusion orders blocking the importation of goods determined
to have infringed or misappropriated complainants' IP rights. Moreover, the ITC's in rem jurisdiction allows it to
prohibit the importation of products developed through trade secret
misappropriation, even where the misappropriation was
extraterritorial (ET) and took place entirely outside of the United
States.
