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
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
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
The artificial intelligence (AI) field made monumental progress in 2020. From improving cancer diagnostics to helping farmers yield healthier crops, AI has been applied to transform business processes and disrupt industries. Continue Reading
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
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
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 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
Reprinted with permission from the October 1, 2020 issue of The Intellectual Property Strategist, ALM Media, LLC.
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
Starting this month, social media influencers and other authors of online content can take advantage of a new group copyright registration option for short online works such as blog entries, social media posts and web articles. Authors could even register their own comments to a social post as separate copyrightable works in certain situations. Continue Reading
This post originally appeared as an article in the July/August 2020 issue of the Journal of Corporate Renewal (JCR), the official publication of the Turnaround Management Association (TMA).
The ability of companies to continue as going concerns has become more challenging than ever. As companies pivot and move forward with product production
and sales, they must consider not only their financial viability but the financial viability of their customers, suppliers, and licensors. Continue Reading