Bryan Wheelock

Bryan Wheelock

Harness, Dickey & Pierce, PLC

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PTAB Misapplied Common Sense in Finding Claims Obvious

In Arendi S.A.R.L. v. Apple Inc., [2015-2073] (August 10, 2016) the Federal Circuit reversed the PTAB Final Written Decision that claims 1-2, 8, 14-17, 20-21, 23-24, 30, 36-39, and 42-43 of U.S. Patent No. 7,917,843 were...more

8/20/2016 - Appeals Obviousness Patent Litigation Patent Trial and Appeal Board Patents Reversal

District Court Correctly Added Inventors Who Contributed to at least one Claim Element

In Vapor Point LLC. v. Moorhead, [2015-1801, 2015-2003] (August 10, 2016), the Federal Circuit affirmed the district court’s correction of inventorship, dismissal of the infringement action, and denial of a attorneys’ fees....more

8/19/2016 - Attorney's Fees Dismissals Inventors Patent Infringement Patent Ownership Patents

Federal Circuit Vacates and Remands PTAB Obviousness Determination Not Supported by Adequate Reasoned Explanation

In In re Warsaw Orthopedic, Inc., 2015-1050, 2015-1058 (August 9, 2016), the Federal Circuit affirmed in part, vacated in part, and remanded the PTAB’s decision in IPR2013-00206 and IPR2013-00208 that claims 1–8 and 17–23 of...more

8/19/2016 - Administrative Orders Appeals Judicial Records Obviousness Patent Trial and Appeal Board Patents

BRI Does Not Apply if Patent Expires Any Time During Reexamination Proceeding

In In Re CSB-System International, Inc., [2015-1832] (August 9, 2016), the Federal Circuit held that the PTAB erred in applying a broadest reasonable interpretation claim construction, instead of a Phillips claim...more

8/16/2016 - Broadest Reasonable Interpretation Standard Claim Construction Ex Partes Reexamination Obviousness Patent Expiration Patent Litigation Patent Trial and Appeal Board Patents Phillips Standard

Sale and Offer for Sale Determined by Where “Substantial Activities of the Sales Transactions” Occur

In Halo Electronics, Inc. v. Pulse Electronics, Inc., [2013-1472, 2013-1656](August 5, 2016), on remand from the Supreme Court, which held that 35 USC 284 gives district courts the discretion to award enhanced damages in...more

8/15/2016 - Direct Infringement Enhanced Damages Extraterritoriality Rules Halo v Pulse Patent Infringement Patent Litigation Patents Remand Summary Judgment Willful Infringement

Patent Drafters: Leaving Coining to the Mint

In Advanced Ground Information Systems, Inc. v. Life360, Inc., [2015-1732] (July 28, 2016) the Federal Circuit affirmed summary judgment of invalidity of U.S. Patent Nos. 7,031,728 and 7,672,681 for indefiniteness....more

8/4/2016 - Claim Construction Patent Invalidity Patent-in-Suit Patents Rebuttable Presumptions Summary Judgment

Repeated and Consistent Usage, including in Rule 131 Declaration, Defines Term

In GPNE Corp. v. Apple Inc., [2015-1825] (August 1, 2016), the Federal Circuit affirmed the district court’s determination of noninfringement of U.S. Patent Nos. 7,570,954 and 7,792,492, relating to a two-way paging system....more

8/3/2016 - Claim Construction Noninfringement Patent Infringement Patent Litigation Patents

Information is Intangible, so Methods of Manipulating it are Abstract

In Electric Power Group, LLC, v. Alstom S.A., [2015-1778] (August 1, 2016), the Federal Circuit affirmed summary judgment of invalidity of U.S. Patent Nos. 7,233,843, 8,060,259, and 8,401,710, on systems and methods for...more

8/2/2016 - Abstract Ideas Data Collection Patent Invalidity Patent-Eligible Subject Matter Patents Power Grid Section 101 Summary Judgment

PTO Cannot Raise & Decide Unpatentability Theories Never Presented by the Petitioner

In In re Magnum Tools International, Ltd., [2015-1300] (July 25, 2016) the Federal Circuit reversed the PTAB’s determination that the challenged claims U.S. Patent No. 8,079,413 were invalid for obviousness. The Federal...more

7/26/2016 - Appeals Burden of Proof Graham Factors Inter Partes Review Proceedings Obviousness Patent Invalidity Patent Litigation Patent Trial and Appeal Board Patents Preponderance of the Evidence Reversal USPTO

Where’s My %$^&# Dollar?

The issue of consideration in an assignment is always in the background, but only occasionally comes up. In Memorylink Corp. v. Motorola Solutions, Inc., 773 F.3d 1266, 113 USPQ2d 1088 (Fed. Cir. 2014), the Federal Circuit...more

7/20/2016 - Boilerplate Language Consideration Contract Interpretation IP Assignment Agreements Motorola Patent Litigation Patents Void Contracts

Sale of Manufacturing Services Does Not Trigger On Sale Bar Under Pre-AIA §102

In The Medicines Company v. Hospira, Inc., [2014-1469, 2014,1504] (July 11, 2016), the en banc Federal Circuit reversed a panel decision finding that U.S. Patent Nos. 7,582,727 and 7,598,343 were invalid under the on-sale bar...more

7/19/2016 - En Banc Review Hospira Inventors Manufacturers On-Sale Bar Patent Invalidity Patent Litigation Pharmaceutical Patents Reversal

Not All Processes That Employ Only Independently Known Steps are Unpatentable

In Rapid Litigation Management Ltd. v. Cellzdirect, Inc., [2015-1570] (July 5, 2016), the Federal Circuit vacated summary judgment that U.S. Patent No. 7,604,929 on hepatocytes capable of surviving multiple freeze-thaw cycles...more

7/19/2016 - Appeals CLS Bank v Alice Corp Mayo v. Prometheus Patent Litigation Patent-Eligible Subject Matter Pharmaceutical Patents Summary Judgment Vacated

I Win? No Fair!

In SkyHawke Technologies, LLC v, Deca International Corp., [2016-1325, 2016,1326] (July 15, 2015), the Federal Circuit granted Deca’s motion to dismiss SkyHawke’s appeal of a PTAB Decision in a reexamination on the grounds...more

7/18/2016 - Appellate Review Claim Construction Motion to Dismiss Patent Litigation Patent Trial and Appeal Board Prevailing Party

The Commercial Marketing Provisions of the Biologics Act are Mandatory

In Amgen Inc. v. Apotex Inc., [2016-1308] (July 5, 2016), the Federal Circuit affirmed a preliminary injunction against Apotex from entering the market until 180 days after giving Amgen Notice after receiving its FDA license....more

7/18/2016 - Amgen Apotex Appeals Biosimilars BPCIA Commercial Marketing FDA Approval Notice Requirements Patent Litigation Pharmaceutical Industry Preliminary Injunctions

It Ain’t Over ‘Till It’s Over

It seems that the majority of patent applications, including those that eventually issue as patents, face a “final” rejection at some point. “Final” does not not always mean final, however, and there are at least eight...more

7/12/2016 - Appeals Examiners Final Action Motion for Reconsideration Motion to Amend Patent Applications Patents Request for Continued Examination USPTO USPTO Pilot Program

Inventive Concept Can be Found in Non-conventional and Non-generic Arrangement of Known, Conventional Pieces

In Bascom Global Internet Services, Inc., v. AT&T Mobility LLC, [2015-1763] (June 27, 2016), the Federal Circuit reversed the dismissal of the Complaint for failure to state a claim upon which relief can be granted on the...more

7/7/2016 - Abstract Ideas AT&T Mobility CLS Bank v Alice Corp DDR Holdings v Hotels.com Failure To State A Claim Inventive Concept Test Patent Invalidity Patent Litigation Patent-Eligible Subject Matter Reversal Section 101 Software Patents

And in the Alternative . . .

The older among us have “unlearned” the prohibition of the word “or” in patent claims, and have reasoned that if “or” is acceptable, its cousin “and/or” is acceptable in patent claims as well. A few years ago, the USPTO...more

7/6/2016 - Examiners Indefiniteness Patent Litigation Patent Trial and Appeal Board Patents USPTO

Plausibility vs. Enablement

U.S. Patent No. 8,330,305 covers protecting devices from impact damage. The patent claims detecting that the portable device will impact a surface, and, if the risk of damage to the portable device from the impact exceeds a...more

7/5/2016 - Cell Phones Enablement Inquiries Patent Applications Patents Plausibility Standard

Halo Recognizes that Not All Infringers are Angels

In Halo Electronics, Inc. v. Pulse Electronics, Inc., 579 U.S. — (2016), the Supreme Court rejected the Federal Circuit’s two-step Seagate test for the award of enhanced damages under 35 USC 284, holding that the aware of...more

6/30/2016 - 35 U.S.C. § 284 Enhanced Damages Halo v Pulse Judicial Discretion Patent Infringement Patent Litigation SCOTUS Seagate Willful Infringement

A Mark Should be Considered a Whole, and not Dissected

In Oakville Hills Cellar, Inc. v. Georgallis Holdings, LLC, [2016-1103] the Federal Circuit affirmed the TTAB’s finding that Oakville’s registered mark MAYA and Georgallis’s applied-for mark MAYARI are sufficiently...more

6/27/2016 - Likelihood of Confusion Substantial Evidence Standard Trademark Litigation Trademark Opposition Proceedings Trademark Trial and Appeal Board Trademarks

Brexit Stage Right

The Brexit referendum has raised a number of issues related to disentangling United Kingdom from the European Union. Intellectual Property owners are understandably concerned about their European Intellectual...more

6/27/2016 - Community Designs Community Trademark EU European Patent Convention European Union Trade Mark (EUTM) Intellectual Property Protection Madrid Protocol Member State Referendums UK UK Brexit Unitary Patent

A Combination of References Can be Obvious Even if it Requires a Bit of Work

In Allied Erecting v. Genesis Attachments, LLC, [2015-1533] (June 15, 2016), the Federal Circuit affirmed the PTAB’s decision in IPR2014-001006 that claims 1–21 of U.S. Patent No. 7,121,489, were obvious. Allied first...more

6/17/2016 - Inter Partes Review Proceedings Obviousness Patent Litigation Patent Trial and Appeal Board Patents Prior Art

Board Not Limited to Prior Art in the Grounds, as Long as Patent Owner Had Notice

In Genzyme Therapeutic Products Limited v. Biomarin Pharmaceutical, Inc., [2015-1720, 2015-1721](June 14, 2016), the Federal Circuit affirmed the PTAB’s decisions in IPR2013-00534 and IPR2013-00537 that certain claims of ...more

6/16/2016 - Administrative Procedure Act Due Process Evidence Final Judgment Inter Partes Review Proceedings Obviousness Patent Invalidity Patent Litigation Patent Trial and Appeal Board Prior Art

Is the Inevitable Disclosure Doctrine Inevitable?

An important feature of the recently enacted Defense of Trade Secrets Act was that it left state trade secret law intact. This meant that states that had adopted the Inevitable Disclosure Doctrine could continue to apply it,...more

6/16/2016 - Defend Trade Secrets Act (DTSA) Inevitable Disclosure Doctrine Injunctive Relief Intellectual Property Protection Misappropriation State Law Claims Trade Secrets Uniform Trade Secrets Acts

The Board Cannot Adopt a Surprise Claim Construction

In SAS Institute, Inc. v. Complementsoft,LLC, [2015-1346, 2015-1347] (June 10, 2016), the Federal Circuit agree with the Board in an IPR involving U.S. Patent No. 7,110,936 on all of the challenged constructions resulting in...more

6/13/2016 - Broadest Reasonable Interpretation Standard Claim Construction Inter Partes Review Proceedings Patent Invalidity Patent Litigation Patent Trial and Appeal Board Remand Vacated

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