App developers who pay 30% commission fee to Apple via In-App Purchasing should take note of an important legal decision recently presented to the Supreme Court for possible review. The Supreme Court’s decision whether to take the case, and its ultimate decision if it does take the case, will directly affect the commission that developers must pay Apple to sell their products using the App Store. In particular, Apple has asked the Supreme Court to limit the scope of a permanent injunction issued against it by a lower federal court in the Northern District of California in Epic Games, Inc. v. Apple, Inc. and upheld on appeal by the Ninth Circuit Court of Appeals. (Epic also filed a separate petition requesting Supreme Court review of the lower court’s rejection of certain antitrust claims, but this blog only discusses the petition filed by Apple.) Continue Reading Will Supreme Court Consider Whether to Allow an Alternative to In-App Purchasing on the App Store?
In Apple Inc. v. Corephotonics, LTD., the court addressed two final written decisions in inter partes review (“IPR”) proceedings and in particular (1) whether the Patent Trial and Appeal Board’s (“PTAB” or “Board”) claim construction is correct when the intrinsic evidence supports a different construction and relatedly whether the PTAB’s first final written decision relying on its claim construction should be vacated and remanded and (2) whether, in the second final written decision, the PTAB’s reliance on an invalidity ground not raised by any party should be vacated and remanded.Continue Reading Federal Circuit Vacates PTAB’s Decision Based on an Overly Narrow Claim Construction
In Great Concepts, LLC, v. Chutter, Inc., the Federal Circuit decided on whether the Trademark Trial and Appeal Board can cancel a trademark based on the inclusion of false statements in a declaration to obtain an incontestable status for the trademark.Continue Reading Federal Circuit’s Determination on Whether Fraudulent Conduct in Obtaining Incontestable Status Warrants the Mark’s Cancellation
This case is primarily about the Daubert standard as applied to expert testimony on damages. The Federal Circuit reversed the Northern District of California’s admission of expert testimony on damages, which relied on calculations that failed to differentiate between infringing products and non-infringing products. The Federal Circuit also reiterated the standards for a judgment as a matter of law (“JMOL”) of non-obviousness, and clarified that “by means of” claim language does not limit to but-for causation, i.e., it does not mean “by the exclusive means of.”Continue Reading Cyntec Company, Ltd. v. Chilisin Electronics Corp., Chilisin America Ltd. Nos. 2022-1873, (Fed. Cir. October 16, 2023)
This case addresses the ability of a petitioner in an IPR to present new evidence in a reply brief, particularly where the patent owner proposes a new claim construction in its patent owner response.Continue Reading Axonics, Inc. v. Medtronic, Inc. Nos. 2022-1532, 2022-1533, (Fed. Cir. August 7, 2023)
The White House Executive Order on AI (“EO”) is comprehensive and covers a wide range of topics. We provided a summary here. It addresses many of the risks and problems that can arise with AI. One of the topics which raises many legal issues, particularly with generative AI (“genAI”), is intellectual property. Some of the IP issues include: i) whether training AI models on copyrighted content constitutes infringement; ii) whether the output of genAI that is based on copyright-protected training material constitutes infringement; iii) what level of human authorship/inventorship is required for copyright/patent protection of genAI-assisted works; iv) whether genAI tools that create art “in the style of” particular artists constitutes copyright infringement and/or violate the right of publicity; v) whether genAI tools that are trained on copyright-protected materials must maintain copyright management information; and vi) whether genAI tools, such as AI code generators, that are trained on open source software, must comply with the terms of the open source licenses.Continue Reading White House Executive Order on AI Punts on IP Issues
The US just catapulted into being the world leader on regulating AI. Bypassing Congress, the White house issued an Executive Order focusing on safe, secure and trustworthy AI and laying out a national policy on AI. In stark contrast to the EU, which through the soon to be enacted AI Act is focused primarily on regulating uses of AI that are unacceptable or high risk, the Executive Order focuses primarily on the developers, the data they use and the tools they create. The goal is to ensure that AI systems are safe, secure, and trustworthy before companies make them public. It also focuses on protection of various groups including consumers, patients, students, workers and kids. Continue Reading White House Executive Order Ramps Up US Regulation of and Policy Toward AI
This case addresses the validity of two patents asserted against wireless communications technologies. In particular, this case discusses claim construction and post-issuance claim amendments that broaden the scope of challenged claims.Continue Reading Sisvel International S.A. v. Sierra Wireless, Inc., No. 2022-1387, 2022-1492 (Fed. Cir. Sept 1, 2023)
This case addresses how Patent Term Adjustment (PTA) interacts with obviousness-type double patenting (ODP).Continue Reading In Re: Cellect, LLC No. 2022-1293 (Fed. Cir. Aug. 28, 2023)
This case addresses whether attorney’s fees are warranted due to an inequitable conduct and conflict of interest defense.Continue Reading United Cannabis Corporation v. Pure Hemp Collective Inc.
This case addresses certain implications of the Laehy-Smith America Invests Act (AIA), namely whether patents with a filing date after March 16, 2013 (pure AIA patents) may be part of an interference proceeding under pre-AIA, 35 U.S.C. § 135, and specifically whether the Patent Trial and Appeal Board (Board) has the authority to cancel SNIPR’s pure AIA claims through an interference for lack of invention priority under pre-AIA § 102(g). Continue Reading SNIPR Tech. Ltd. v. Rockefeller Univ., No. 22-1260 (Fed. Cir. July 14, 2023)