Patent Infringement Pleading Standards Remain Unsettled Five Years After the Abrogation of Form 18 – Part 2: Pleading Standards in Delaware

December 1, 2020 marked the five-year anniversary of the Supreme Court’s abrogation of Form 18—the model complaint that provided the minimum requirements for stating a claim of direct infringement.  Following the abrogation of Form 18, patent infringement claims must satisfy the plausibility standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).  Courts, however, have diverged in applying Iqbal and Twombly to patent cases.  As a result, pleading standards now vary from jurisdiction-to-jurisdiction (and even from judge-to-judge within the same jurisdiction).

In a series of blog posts, we are exploring how courts are applying the Iqbal/Twombly pleading standards to patent cases five years after Form 18 was abrogated.  In Part 1, we examined Federal Circuit opinions, including the seeming inconsistencies among those opinions.  In this installment, we look at how pleading standards have been applied in the District of Delaware. Continue Reading

How to Successfully Obtain Blockchain Patents

As with other rapidly-evolving technologies, the blockchain space is experiencing a frenzy of patent activity. The data shows that there are 3-4 times as many published applications as there are issued patents for these concepts. This trend strongly suggests that the number of blockchain-related patents will surge in the next couple of years. However, due to recent changes in patent law, it is more important than ever to ensure that you analyze the patentability of blockchain inventions in light of these changes to target inventions likely to result in patents.  Once likely patentable inventions are identified, it is critical to draft patent applications and claims based on  knowledge of how the Patent Office has treated prior blockchain patent applications to maximize the likelihood of obtaining commercially meaningful, valid patents.  For more information, view our Flipbook. Continue Reading

Federal Circuit Agrees to Reconsider Ruling in GSK v. Teva Drug Patent Case

A Federal Circuit panel on Tuesday vacated its earlier finding that Teva induced infringement of U.S. Patent No. RE40,000, GSK’s patent covering its drug, Coreg®, and set a new round of oral argument for February 23.  Back in October, the Court in a 2-1 decision found Teva liable for induced infringement, even though Teva’s original label did not include the indication covered by the ’000 Patent.  In its ruling, the Court took issue with Teva’s marketing materials stating that its generic product is an AB rated generic of Coreg tablets without specific reference to any indication.  Following the decision, generic drug manufacturers and other interest groups asked the Court to reconsider, arguing that the ruling would impede the availability of low-cost generic drugs to reach the market and would effectively nullify the purpose of the Section viii statement, which allows a generic company to “carve out” any reference to a patented indication from its product’s labeling. Continue Reading

Cementing Victory by Accepting Defeat: When Can a Patentee’s Infringement Disclaimer Moot an Appeal of an IPR Decision?

A recent Federal Circuit case, ABS Global, Inc., v. Cytonome/ST, LLC, answered the interesting question of whether a patentee’s infringement disclaimer can moot a challenger’s appeal of an inter partes review (“IPR”) decision. Continue Reading

Trademark Modernization Act Strengthens Rights of Trademark Owners

The Trademark Modernization Act (TMA) was signed into law on December 27, 2020.  The Act introduces significant amendments to the Lanham Act designed to strengthen the rights of legitimate trademark owners.  The Act makes it easier for trademark owners to obtain injunctive relief in litigation, provides new mechanisms for challenging trademark applications and registrations on the basis of non-use, codifies the letter of protest procedure, and affords the USPTO greater discretion and flexibility in setting deadlines to respond to office actions. Continue Reading

USPTO Issues Guidance on Examination of Generic.com Terms

In June of this year, the US Supreme Court ruled that a proposed mark consisting of the combination of a generic term and a generic top-level domain, like “.com,” is not per se generic. (USPTO v. Booking.com). In response, the United States Patent and Trademark Office (USPTO) recently issued Examination Guidelines for examining such “generic.com” terms. Continue Reading

Patent Infringement Pleading Standards Remain Unsettled Five Years After the Abrogation of Form 18 – Part 1: Inconsistent Federal Circuit Guidance

December 1, 2020 will mark the five-year anniversary of the Supreme Court’s abrogation of Form 18—the model complaint that provided the minimum requirements for stating a claim of direct infringement.  Following the abrogation of Form 18, patent infringement claims must satisfy the plausibility standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).  Courts, however, have diverged in applying Iqbal and Twombly to patent cases.  As a result, pleading standards now vary from jurisdiction-to-jurisdiction (and even from judge-to-judge within the same jurisdiction).

In a series of blog posts, we will explore how courts are currently applying the Iqbal/Twombly pleading standards to patent cases.  In this first installment, we look at Federal Circuit opinions issued since the abrogation of Form 18.  These decisions arguably raise as many questions as they answer. Continue Reading

Supreme Court to Decide Constitutionality of PTAB Judge Appointments

The Supreme Court granted and consolidated three petitions for writs of certiorari to hear two questions regarding the constitutionality of Administrative Patent Judge (APJ) appointments under the Appointments Clause.  These questions are: Whether APJs of the Patent Trial and Appeal Board (PTAB) are principal officers who must be appointed by the President under the Appointments Clause of the Constitution; and whether, if APJs are determined to be principal officers, severing the application of 5 U.S.C. 7513(a) to those judges cures any violation of the Appointments Clause.  The Court declined to hear a third question of whether the Court of Appeals in the Arthrex[1] case erred by adjudicating the Appointments Clause question despite the failure of Arthrex to present its Appointments Clause challenge during the PTAB proceedings. Continue Reading

Alice and Incongruity in PTAB Appeals

Reprinted with permission from the October 1, 2020 issue of The Intellectual Property Strategist, ALM Media, LLC.

I. INTRODUCTION

During patent prosecution before the USPTO, applicant and examiner can become entrenched in conflicting positions on subject matter eligibility. Appeal to the Patent Trial and Appeal Board (PTAB) could clear prosecution impasse. However, Alice related issues taken to the PTAB are not necessarily the Alice related issues decided by the PTAB. Continue Reading

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