03 April

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First House IP Subcommittee Hearing of 116th Congress Addresses Ways to Increase Female Inventorship

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Today, April 3, the Senate Subcommittee on Intellectual Property held a hearing titled Trailblazers and Lost Einsteins: Women Inventors and the Future of American Innovation—a topic that also was considered last Wednesday by the House Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet in their first hearing of the term. The House hearing was titled, Lost Einsteins: Lack of Diversity in Patent Inventorship and the Impact on America’s Innovation Economy and, like today’s Senate hearing, focused on a recent report on female inventorship released by the U.S. Patent and Trademark Office (USPTO) and featured testimony on how to improve rates of...

03 April

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Inequitable Conduct and Unclean Hands: Is There a Difference and Does It Matter?

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Inequitable conduct remains the most powerful defense to patent infringement. In contrast to other defenses to patent infringement that require a claim-by-claim analysis, the defense of inequitable conduct is global. A finding of inequitable conduct renders the entire patent unenforceable. For this reason, the U.S. Court of Appeals for the Federal Circuit has referred to the defense of inequitable conduct as the “atom bomb of patent law” Aventis Pharma S.A. v. Amphastar Pharmaceutical, Inc., 525 F.3d 1334, 1349 (Fed.Cir.2008). Given the tremendous impact of the inequitable conduct defense, the Federal Circuit, in Therasense, Inc. v. Becton, Dickinson and Co., 649 F. 3d 1276...

03 April

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CAFC: Claim Construction That Misreads Plain Language of Claims and Specification Is Clearly Erroneous

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Alembic and Breckenridge were among a number of drug manufacturers that filed Abbreviated New Drug Applications (ANDA) to market generic versions of Saphris. Saphris is an antipsychotic containing asenapine maleate. Saphris is administered sublingually, meaning under the tongue. Forest sued the ANDA filers for patent infringement. At trial, the district court held that the relevant claims of asserted Patent No. 5,763,476 (“the ’476 patent”) were not invalid as obvious, and that Forest had not established infringement by Alembic or Breckenridge. Alembic and Breckenridge appealed the invalidity determination, and Forest cross-appealed the non-infringement decision as clearly erroneous. On appeal, the Federal Circuit vacated and...

02 April

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Recent Cases Show Federal Circuit Is Concerned About ‘Over Abstracting’ Rejections of Method/ Process Patents

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In one of its latest opinions attempting to parse precedent on the subject matter eligibility of software, method of use, and business method patents that arguably involve application of laws of nature or recitations of well-known, conventional methods and techniques, the U.S. Court of Appeals for the Federal Circuit found that a patent directed to a method for administering a naturally occurring beta amino acid to cause an increase in the concentration of a naturally occurring amino acid combination in muscle and brain tissues was subject matter eligible for patent protection (Natural Alternatives Int’l, Inc. v. Creative Compounds, LLC, No. 18-1295,...

02 April

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Request for Amici: Tell the Supreme Court to Clarify Section 101

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On March 8, Foster Pepper filed a petition for certiorari with the Supreme Court, case number 18-1199, challenging the Federal Circuit’s emerging “physical realm” test as part of its Alice/Section 101 analysis. Amicus briefs in support of our cert petition are most welcome to assist the Court’s understanding of why it is important to grant cert and clarify the correct patent eligibility test for computer-implemented inventions. We are also seeking amicus brief writers for the many amici we have already secured. These efforts will help clear up the uncertainty innovators and patent holders face in cutting-edge fields of our modern economy and,...

02 April

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The Federal Circuit Just ‘Swallowed All of Patent Law’ in ChargePoint v. SemaConnect

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In ChargePoint Inc. v. SemaConnect, Inc., (2018-1739) the Federal Circuit considered the following claim: An apparatus, comprising: a control device to turn electric supply on and off to enable and disable charge transfer for electric vehicles; a transceiver to communicate requests for charge transfer with a remote server and receive communications from the remote server via a data control unit that is connected to the remote server through a wide area network; and a controller, coupled with the control device and the transceiver, to cause the control device to turn the electric supply on based on communication from the remote server. The Court inexplicably stated in its...

01 April

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IP and Innovation on Capitol Hill: Week of April 1: Medicare Drug Pricing, Lost Einsteins and Data Privacy

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This week on Capitol Hill will include a series of hearings related to tech and innovation topics on Tuesday at the House of Representatives, where debate will focus on the 2020 budget for NASA and the National Institutes of Health, as well as on technology issues at Veterans Affairs. Senate hearings will take a look at Alzheimer’s research and funding for the Department of Energy. On Wednesday, the Senate IP Subcommittee will hold a hearing to look at gender diversity issues in the U.S. patent system. Elsewhere in D.C., the Cato Institute will look at Medicare drug pricing issues, a...

01 April

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In Honor of April Fools’ Day: Diving Into Deepfakes

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“While the California bill is chiefly aimed at criminalizing deepfakes, it has implications for intellectual property in that it reaches conduct that may not be easily addressed by the enforcement of existing IP law.” Deepfake technology has made headlines recently for its use in creating fake portrayals of celebrities, but the long term implications could be much more sinister than phony renderings of Scarlett Johansson appearing in porn videos or President Barack Obama calling Trump a profanity. One deepfakes website, ThisPersonDoesNotExist.com, includes a large gallery of images of faces that are entirely computer-generated. The site can create these artificial intelligence (AI)-based faces using something called...

01 April

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How the EPO and USPTO Guidance Will Help Shape the Examination of Artificial Intelligence Inventions

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It is safe to say that Artificial intelligence (AI) and Machine Learning (ML) are hot topics and, as with any rapidly growing technological area on the industry side, there is also a rapidly growing number of patent applications being filed. In view of this, the European Patent Office (EPO) issued new guidance for examination for AI and ML patent applications in November 2018. Meanwhile, in January 2019, the U.S. Patent and Trademark Office (USPTO) also issued revised guidance directed to what constitutes patent eligible subject matter under 35 U.S.C. §101. Although the USPTO’s revised guidance is more generally directed to software...

31 March

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Latest Apple/Qualcomm Ruling Highlights Question of ‘Unwilling Licensees’

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“If people take an extreme position such as, ‘You can have a royalty when you pry it from my cold, dead hands,’ that’s classic holdout behavior by someone who is gambling that, in a worst-case scenario, they’ll just pay a reasonable royalty decided by a court.” – David Long On March 20, U.S. District Judge Gonzalo Curiel of the Southern District of California issued an order denying a motion by Apple, which was seeking partial judgment against Qualcomm on that company’s claim that it had fulfilled its fair, reasonable and non-discriminatory (FRAND) obligations for licensing its standard-essential patents (SEPs). As a result,...