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International Trade Commission Clarifies the Intersection Between Litigation Funding Agreements and Standing

April 27, 2018 | Blog | By Andrew DeVoogd, Daniel Weinger

On April 18, 2018, the International Trade Commission (“Commission”) reversed an Administrative Law Judge’s (“ALJ”) finding that a litigation funding agreement destroyed standing for a complainant at the ITC.
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Two Supreme Court Patent Opinions and a Memo from the PTO

April 27, 2018 | Blog | By Michael Renaud, James Wodarski, Sandra Badin, Anthony Faillaci

On Tuesday, the U.S. Supreme Court issued two important patent law opinions that relate to the inter partes review procedure introduced by the America Invents Act: Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, which upholds the constitutionality of inter partes review, and SAS Institute, Inc. v. Iancu, which requires the Patent Trial and Appeal Board to adjudicate the validity all patent claims challenged in a petition for inter partes review if the Board decides to adjudicate the validity of any claim challenged in that petition.
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Federal Circuit Provides Guidance for Stereochemistry Claim Construction

April 25, 2018 | Blog | By Adam Samansky, Joe Rutkowski

On April 16, 2018 in a precedential opinion, the United States Court of Appeals for the Federal Circuit, Sumitomo Dainippon Pharma v. Emcure Pharms., Nos. 2017-1798, -1799, -1800, affirmed the United States District Court for the District of New Jersey by construing the claimed chemical structure diagram to encompass at least the specific enantiomer depicted, refusing to limit the claim to only cover a racemic mixture of the (+) and (–) enantiomers, absent clear indication that the depicted enantiomer should be excluded from the claim.
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With Software Patents and Means-Plus-Function, “Structure” Takes On a New Meaning

April 17, 2018 | Blog

Software patents are generally directed to a sequence of steps or rules, i.e., an algorithm, performed by a computer programmed to carry out the algorithm.  Because algorithms are inherently functional in nature, software patent claims are frequently written using functional, as opposed to structural, terms.
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What is blockchain and how will it affect me?

April 11, 2018 | Blog | By Lisa Adams

The term “blockchain” is everywhere, and it is likely that you will interact with blockchain technology every day in the years to come.
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USPTO Prepares to Celebrate the Issuance of the Ten Millionth U.S. Patent

April 9, 2018 | Blog | By William B. Kezer

The United States Patent and Trademark Office (USPTO) anticipates issuing the 10 millionth utility patent at some point during the summer 2018.
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District Court Grants Protection under DTSA Whistleblower Immunity for First Time

April 6, 2018 | Blog | By Michael Renaud, Nick Armington

The Eastern District of Pennsylvania recently granted immunity under the whistleblower provision of the Defend Trade Secret Act in what appears to be the first decision of its kind under the new federal trade secret statute.
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WesternGeco v. ION Geophysical Corp. and Lost Profit Damages under § 271(f)

April 5, 2018 | Blog | By Adam Samansky, Alexander Roan

Section 271 of Title 35 of the United States Code is the statute that codifies unlawful acts of patent infringement.  The most commonly asserted provisions are § 271(a) (direct infringement), § 271(b) (induced infringement), and § 271(c) (contributory infringement).
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Patent Damages: How Many Essential Features in a Smart Phone?

March 30, 2018 | Blog | By Michael Renaud, Andrew DeVoogd, Daniel Weinger

On March 20, 2018, the public version of Eastern District of Texas Magistrate Judge Roy Payne’s March 7, 2018 order tossing a $75 million jury verdict obtained by Ericsson against TCL Communication was released.
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Doctrine of “Ancillary Venue” Does Not Trump TC Heartland

March 28, 2018 | Blog | By Andrew DeVoogd, Anthony Faillaci

Further to our ongoing coverage of post-TC Heartland patent litigation, in a recent development from the Northern District of Illinois, the court granted counterclaim defendants’ motion to dismiss for improper venue.
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Berkheimer v. HP Inc.: Whether Claim Elements Are Well-Known, Routine, or Conventional Is a Question of Fact

March 12, 2018 | Blog | By Michael Newman, Kevin Amendt

The Court of Appeals for the Federal Circuit ruled in February that it was wrong for a judge to rule that a patent was ineligible under the Alice standard because there were underlying factual disputes that could not be resolved on summary judgement.
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Automated Tracking Solutions, LLC v. The Coca-Cola Company

March 5, 2018 | Blog

Automated Tracking Solutions, LLC, (“ATS”) appealed findings of invalidity for failing to claim patent-eligible subject matter by the United States District Court for the Northern District of Georgia.
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Establishing Obviousness: A Fundamental Case of Evidence Over Arguments

March 1, 2018 | Blog | By Brad M Scheller

The Federal Circuit affirmed the Patent Trial and Appeal Board’s inter partes review decision declaring various claims of patent owner Thales’ U.S. Patent No. 6,474,159 (“the ‘159 patent”) nonobvious.
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Latest Tool in the Fight against Alice: USPTO Publishes a New Eligibility Quick Reference Sheet

February 26, 2018 | Blog | By Christina Sperry, Kevin Amendt

Struggling to keep case law relating to subject matter eligibility organized?  In February 2018, the United States Patent and Trademark Office (USPTO) released an improved Eligibility Quick Reference Sheet, providing patent practitioners with a useful tool for analyzing claims in view of 35 U.S.C. § 101 subject matter eligibility requirements.
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Updates to USPTO eMod Project to Improve E-Filing/Managing Patent Applications

February 22, 2018 | Blog | By Christina Sperry

The U.S. Patent and Trademark Office (USPTO) is implementing eCommerce Modernization (eMod), as discussed at a USPTO Patent Quality Chat webinar on February 13, 2018.
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Patent Exhaustion Defense Unavailable to Reseller after Impression Products

February 22, 2018 | Blog | By Christina Sperry, Alexander Roan

In an application of 2017 U.S. Supreme Court precedent in Impressions Products, Inc. v. Lexmark Intern., Inc., the Northern District California in International Fruit Genetics LLC v. Orcharddepot.com, No. 4:17-cv-02905-JSW, recently denied a motion to dismiss a claim of patent infringement by holding that the patent exhaustion doctrine did not apply to a sale of a patented product that was outside the scope of the license granted by the patent owner. 
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Federal Circuit Approves Apportioning Damages through a Thorough and Reliable Analysis of the Royalty Rate

February 15, 2018 | Blog

On January 12, 2018 in Exmark Manufacturing Co. Inc., v. Briggs & Stratton Power Products Group, LLC, the Federal Circuit once again addressed the issue of apportioning damages, an area of the law that continues to evolve.  The parties in Exmark are competitors in the commercial lawn mower market.
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The Medicines Company v. Hospira, Inc.

February 14, 2018 | Blog | By Brad M Scheller

The Medicines Company (“MedCo”) appealed findings of no infringement made by the United District Court for the District of Delaware. Hospira cross-appealed the district court’s finding that a distribution agreement did not constitute an invalidating “offer for sale” under 35 U.S.C. § 102(b).
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Patent Term Adjustment: Lessons Learned from the Federal Circuit Decision in Actelion v. Matal

February 14, 2018 | Blog | By Christina Sperry

On February 6, 2018, in Actelion v. Matal, the Federal Circuit affirmed the decision of the district court granting summary judgment in favor of the United States Patent and Trademark Office (PTO). 
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Improper Reliance on Informal “Opinion of Counsel” Part of Basis for Exceptional Case Award

February 5, 2018 | Blog | By Andrew DeVoogd, Anthony Faillaci

In Drop Stop LLC v. Jian Qing Zhu et al, 2-16-cv-07916 (CACD January 22, 2018), the Central District of California granted Plaintiff’s motion to award attorney fees due to Defendants’ exceptional litigation tactics under 35 U.S.C. § 285.
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