Since being appointed to the bench in 2018, Judge Alan Albright in Waco Texas has had one of the busiest patent dockets in the nation, rivaling that of Delaware and the Eastern District of Texas. He quickly gained a reputation as providing a quick trial schedule and moving a case forward. Judge Albright has stated that he aims to get to trial within 24 months of a complaint being filed.Continue Reading How Quickly are Judge Albright Patent Cases Going to Trial?

On June 22, 2023, Senators Chris Coons (D-DE) and Thom Tillis (R-NC) introduced the Patent Eligibility Restoration Act of 2023, which seeks to clarify the jurisprudence surrounding 35 U.S.C. § 101. The current patent eligibility requirements under Section 101 have been evolving by judicially-created exceptions stemming from the Supreme Court’s rulings in Alice and Mayo, and numerous Federal Circuit decisions that have interpreted the Alice and Mayo framework. Those opinions have, on occasion, appeared to provide inconsistent guidance that has led to continued confusion regarding section 101’s application.Continue Reading Senators Propose New Legislation to Clarify Patent Eligibility Under 35 U.S.C. § 101

This article was first published by ALM / Law.com in The Intellectual Property Strategist.

All of us have been exposed to and perhaps even overwhelmed by news about generative artificial intelligence (AI). Unlike machine learning technology that merely classifies or predicts, generative AI creates. Industry stalwarts and startups alike have launched generative models that can create new text, images, video, 3D models, and even software code — with the promise of more powerful and disruptive innovations to soon follow. A patent strategy informed by the unique considerations raised by generative AI will optimize protections for innovations in the field. Patent strategies should reflect the current legal landscape as well as anticipate potential future legal developments.Continue Reading Generative AI and Patent Considerations – Part Two

First published by ALM / Law.com in The Intellectual Property Strategist

All of us have been exposed to and perhaps even overwhelmed by news about generative artificial intelligence (AI). Unlike machine learning technology that merely classifies or predicts, generative AI creates. Industry stalwarts and startups alike have launched generative models that can create new text, images, video, 3D models, and even software code — with the promise of more powerful and disruptive innovations to soon follow. A patent strategy informed by the unique considerations raised by generative AI will optimize protections for innovations in the field. Patent strategies should reflect the current legal landscape as well as anticipate potential future legal developments.Continue Reading Generative AI and Patent Considerations – Part One

This case addresses the “skilled and diligent searcher” standard used for establishing Inter Partes Review (“IPR”) estoppel (or lack thereof). In particular, this case establishes: (1) which party bears the burden of proof regarding whether a “skilled and diligent searcher” could have reasonably been expected to discover prior art such that failure to include it in an IPR petition estops the petitioner from raising it in other civil actions under 35 U.S.C. § 315(e)(2); and (2) the “skilled and diligent searcher” inquiry itself with respect to what a skilled and diligent searcher reasonably would have been expected to discover.Continue Reading Ironburg Inventions Ltd. v. Valve Corp. 21-2296 (Fed. Cir. Apr. 3, 2023)

In a per curium order issued under seal May 3, 2023 but recently made public, the Patent Trial and Appeal Board awarded sanctions against Patent Owner, Longhorn Vaccines & Diagnostics, canceling all challenged claims of its five asserted patents for its “egregious abuse of the PTAB process.” Particularly, the Board determined that Patent Owner, through its counsel, failed to meet its duty of candor and fair dealing before the Board by “selectively and improperly” withholding information material to the patentability of the claims challenged in the IPR proceeding.Continue Reading “Egregious Abuse” of the PTAB Process Leads to Adverse Decision Sanctions in IPR Proceeding

On May 18, 2023, the Supreme Court of the United States issued a unanimous decision in the case of Amgen Inc. et al. v. Sanofi, et al., No. 21-757. After a nine-year saga, beginning when Amgen sued Sanofi for allegedly infringing two of its patents in 2014, the Supreme Court held that Amgen’s asserted patents failed to satisfy the enablement requirement under 35 U.S.C. § 112(a), and are thus invalid.Continue Reading SCOTUS: “The More a Party Claims for Itself the More it Must Enable”

Recent patent cases have made it more difficult to obtain utility patent protection for some of the functional aspects of computer software. One way to, at least partially, overcome this is to consider design patent protection for computer generated icons and certain aspects of the graphical user interface (GUI) elements of a computer program. Strategic use of design patents can be an important part of an overall patent strategy. It should be noted, however, that design patents are not meant as a replacement for utility patents, but rather, as a supplement to them.Continue Reading Design Patent Protection for Computer Generated Icons and Graphical User Interfaces

As patent litigators are well-aware, the Western District of Texas and the District of Delaware, the two most popular venues for patent litigation, each issued orders regulating litigation in their districts in 2022. So as of early 2023, what effect have those orders had on patent filings?Continue Reading Early 2023 Update: Where Are Plaintiffs Filing Patent Cases Now?