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3 weeks ago | 
ipwatchdog.com | Eileen McDermott |Steve Brachmann |Stephen Schreiner |Gene Quinn
“Under this view, the patentee could actually benefit from having a patent issue after its expiration date because the patent’s provisional-rights term would extend beyond the patent’s twenty-year term.” – Federal CircuitThe U.S Court of Appeals for the Federal Circuit (CAFC) today issued a precedential opinion clarifying that provisional rights in a patent do not apply when a patent would issue after its expiration date. Judge Chen authored the decision.
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3 weeks ago | 
ipwatchdog.com | Stephen Schreiner |Gene Quinn |Eileen McDermott
“The courts are doing the right thing by sending Alice Step Two to the jury and instructing them to apply the clear and convincing evidentiary burden.”The 2014 Alice decision held that claims may be patent-ineligible as claiming “abstract ideas” based on a two-step inquiry. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014). At Step One, it is determined whether the claim is “directed to” a “patent-ineligible concept” such as an abstract idea.
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Jan 13, 2025 | 
ipwatchdog.com | Eileen McDermott |Gene Quinn |Joseph Allen |Stephen Schreiner
IPWatchdog LIVE Moves to March in 2025: Click for details “The CAFC explained that, as pled, BearBox’s conversion claim is preempted because it is ‘essentially an inventorship cause of action and patent infringement cause of action, and thus seeks ‘patent-like protection’ for ideas that are unprotected under federal law.’” The U.S. Court of Appeals for the Federal Circuit (CAFC) on Monday, January 13, issued a precedential decision denying a state law conversion claim as being preempted by...
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Jan 12, 2025 | 
ipwatchdog.com | Stephen Schreiner |Eileen McDermott
IPWatchdog LIVE Moves to March in 2025: Click for details “With the PTAB receiving thousands of petitions each year, one would expect that the All-Claims Invalidation Rate would be relatively constant year to year… But that hasn’t happened.
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Nov 4, 2024 | 
ipwatchdog.com | Stephen Schreiner |Eileen McDermott
Support IPWatchdog with an individual sponsorship: Click here “In re Xencor calls into question the issue of when a claim term should be construed to be a ‘genus’ and whether that inquiry differs in the unpredictable arts compared to the predictable arts.” The case law distinguishes between so-called “unpredictable arts” (e.g., the biological, chemical, and pharmaceutical arts) and “predictable arts” (e.g., electrical and mechanical arts) for purposes of Section 112 analysis for the very...
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Jun 25, 2024 | 
ipwatchdog.com | Stephen Schreiner |Steve Brachmann
“Since 2021, the invalidation rate has been increasing and is currently at 71% for the first two quarters of 2024. In 2023, all challenged claims were found invalid 68% of the time. These are daunting statistics for patent holders.”The invalidation rate of patents in America Invents Act (AIA) proceedings, such as inter partes reviews (IPRs), has been high since the inception of the PTAB.
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May 28, 2024 | 
ipwatchdog.com | Stephen Schreiner |Brad Close |Randall R Rader
“When making oral argument, listen for judges that may be steering your argument into one of these pitfalls. Don’t take the bait.” Part I of this article discussed how the Patent Trial and Appeal Board (PTAB) is a very different tribunal from district courts. It is a venue where fact and issues of law are decided by technical specialists, who are also highly trained in patent law, instead of lay judges and juries.
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May 22, 2024 | 
ipwatchdog.com | Eileen McDermott |Stephen Schreiner |Brad Close |Louis Lehot
“We conclude that the entirely-own-time phrase does not unambiguously express a mutual intent to designate either all the time Dr. Core spent performing his PhD research as his own time…or some of it as partly TRW’s time….” – CAFC The U.S. Court of Appeals for the Federal Circuit (CAFC) on Tuesday, May 21, issued a precedential decision vacating and remanding a district court’s finding that Core Optical Technologies didn’t have standing to sue Nokia due to the language of a contract between...
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May 22, 2024 | 
ipwatchdog.com | Stephen Schreiner |Brad Close |Eileen McDermott
“Your client’s litigation campaign hopefully involves the assertion of multiple patents, not just one or two, to have a good opportunity to escape the IPR process with at least a few confirmed claims.”Litigating the validity of claims in an inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB) is vastly different from litigating validity in district court. PTAB judges are scientists and engineers, and they are also patent attorneys.
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Jan 15, 2024 | 
ipwatchdog.com | Stephen Schreiner |Eileen McDermott
“The [patent] statute confirms that IPRs should not be instituted based on patent applications that published after the priority date of the challenged patent [but] the PTAB has permitted IPRs to be based on prior-filed, later-published patent applications.”Editor’s Note: The author is representing Lynk Labs in Appeal No. 23-2346 from IPR2022-00149.
