Intellectual Property Civil Procedure Administrative Agency

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Between a Rock and a Hard Place: Federal Circuit Says It's Required to Accord the PTAB Deference Until Instructed Otherwise by...

On Tuesday, April 26, 2016, the Federal Circuit issued an order denying a petition filed by Merck & Cie for rehearing en banc of an Inter Partes Review (“IPR”) final written decision by the Patent Trial and Appeal Board...more

Supreme Court Hears Oral Arguments In First Appeal From AIA Post-Grant Proceeding: Justices Focus on Practical Consequences of...

On April 25, 2016, the U.S. Supreme Court heard oral arguments in its first appeal from a decision by the USPTO’s Patent Trial and Appeal Board (“PTAB” or “Board”) in an inter partes review proceeding (“IPR”) under the...more

USPTO Seeking Comment on Proposed Amendments to Trademark Rules of Practice

On April 4, 2016 the U.S. Patent and Trademark Office published a Federal Register notice asking for comments to proposed amendments to Trademark Rules of Practice. Specifically, the rules to practice before the Trademark...more

The ITC Punts on Whether the Presumption of Validity Applies to § 101 Challenges

On April 4, 2016, the U.S. International Trade Commission issued a notice stating that it would not review an Initial Determination by Judge Dee Lord finding the asserted claims of U.S. Patent Nos. 8,398,546 and 8,446,275...more

Rehearing Denial Leaves ITC’s Jurisdiction Tethered to the Material World

Last week, the en banc Federal Circuit declined to rehear its November 10, 2015, decision in ClearCorrect v. ITC, 2014-1527, leaving the U.S. International Trade Commission’s (ITC) Section 337 jurisdiction to “material...more

The USPTO Amends AIA Trial Rules: 4 Changes That You Need To Know

On April 1, 2016, the U.S. Patent and Trademark Office (USPTO) issued amended final rules that govern trials under the America Invents Act (AIA), including inter partes review, post-grant review, covered business method...more

Federal Circuit Carves Out Exception to IPR Estoppel Provisions

The Federal Circuit recently held that petitioners will not be estopped from raising in subsequent proceedings any noninstituted grounds deemed “redundant” by the Board or otherwise denied without meritorious consideration....more

Federal Circuit Remands PTAB’s Denial of Motion to Amend in IPR - Nike, Inc. v. Adidas AG

Addressing a decision by the Patent Trial and Appeal Board (PTAB or Board) denying a motion to amend claims under inter partes review (IPR), the US Court of Appeals for the Federal Circuit remanded the matter to the Board for...more

CARRERA’s Trademark Reputation: “Luxury, High Tech, High Performance and Success”

The German carmaker, Porsche AG, which designed the iconic 911 Carrera sports car, owns the European Union and German “CARRERA” word mark, registered for “automobiles” in class 12. How far beyond automobiles does the...more

Federal Circuit Tosses PTAB Decision

The Federal Circuit vacates a decision by the PTAB for relying on facts raised for the first time at oral argument. Executive Summary - On March 15, 2016, the US Court of Appeals for the Federal Circuit vacated...more

PTAB Cannot Rely on Key Factual Assertions First Made at Oral Argument—Patent Owners are Entitled to Notice of and a Fair...

This week the Federal Circuit handed a positive development to Patent Owners working to keep their patent rights before the Patent Trial and Appeal Board. In an opinion issued on Tuesday in Dell Inc. v. Acceleron, LLC, Case...more

In re Queen's University at Kingston (Fed. Cir. 2016)

Are communications between a patent agent and a client privileged? Up until last week, the Federal Circuit had not addressed the subject, although there had been a split with the district courts that had considered the...more

PTAB: On Second Thought, Your IPR Is Instituted (AVX Corp. v. Greatbatch Ltd.)

In what could be a first, the Board granted-in-part a petitioner’s rehearing request, reversing its earlier decision not to institute an inter partes review (IPR). In reversing, the majority of the Board acknowledged that the...more

Same Board Panel May Institute and Finally Decide AIA Review (Ethicon Endo-Surgery, Inc. v. Covidien LP)

Addressing for the first time the issue of whether the same panel of Patent Trial and Appeal Board (PTAB or Board) may both institute an inter partes review (IPR) and finally decide its merits, the U.S. Court of Appeals for...more

MBHB Snippets: Review of Developments in Intellectual Property Law: Winter 2016 Vol. 14, Issue 1

Patentable Subject Matter after Alice: Best Practices for Responding to 35 U.S.C. § 101 Rejections - It has been over 20 months since the Supreme Court handed down the landmark decision in Alice Corp. v. CLS Bank Int’l,...more

Trademark Review | February 2016

The Federal Circuit Considers Constitutionality of Refusal to Register Scandalous and Immoral Marks - The Lanham Act prohibits registration of marks that are defamatory, scandalous or immoral. Last month, in In re Tam,...more

Post-Grant Review Estoppel Applies on a Claim-by-Claim Basis (Westlake Services, LLC v. Credit Acceptance Corp.)

Addressing a motion to terminate post-grant review based on a final written decision in another proceeding directed to some of the challenged claims, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB...more

CBM Jurisdiction Survives Abandonment of CBM Claims (J.P. Morgan Chase LLC V. Intellectual Ventures II LLC)

Addressing the issue of whether a patent owner can divest the Patent Trial and Appeal Board (PTAB or Board) of covered business method (CBM) jurisdiction, the Board found that a determination of initial jurisdiction for CBM...more

The ITC Flexes Its Trade Secrets Muscles Again

The Federal Circuit has once again affirmed the ITC’s broad jurisdiction to investigate and, if necessary, remedy extraterritorial misappropriation of trade secrets. Based on this and other recent decisions, it looks like the...more

Split Federal Circuit Upholds Constitutionality of Single PTAB Panels Rendering Both Institution & Final Written Decisions

On January 13, 2016, the Federal Circuit affirmed the decision of the PTAB in Ethicon Endo-Surgery, Inc. v. Covidien LP, IPR2013-00209, that all of the claims of U.S. Patent 8,317,070 are obvious. While the obviousness...more

Just Because You Can, Doesn’t Mean You Should

In Ethicon Endo-Surgery, Inc. v. Covidien LP, [2014-1771](January 13, 2016), the Federal Circuit held that the same panel of the PTAB can make the decision to institute an IPR and the final written decision, and that the PTAB...more

Will the Supreme Court Put the Brakes on the IPR Trend? Cuozzo Speed Tech., LLC v. Lee

Not so fast: the United States Supreme Court is set to review the America Invents Act’s (“AIA”) fast-track inter partes review (“IPR”) process. On January 15, 2016, the Supreme Court granted certiorari in Cuozzo Speed...more

Cuozzo Speed Technologies, LLC v. Lee

The Supreme Court on Friday granted certiorari to review the Federal Circuit's decision that the U.S. Patent and Trademark's Patent Trial and Appeal Board was entitled to perform claim construction in inter partes review...more

USPTO Implementation of AIA Does Not Violate Due Process: Federal Circuit Affirms the PTAB Panel Determining Institution of an IPR...

In Ethicon Endo-Surgery, Inc. v. Covidien LP, a 2-1 panel split of the Federal Circuit held that neither the American Invents Act (“AIA”) nor the Constitution precludes the same panel of the Patent Trial & Appeal Board...more

PTAB Designates Decision in LG Electronics v. Mondis Tech IPR as Precedential

As a follow-up to our Alert yesterday, the Board also designated their decision in LG Electronics, Inc. v. Mondis Tech Ltd., IPR2015-00937, Paper 8 (PTAB September 17, 2015) as precedential, a decision explaining the one-year...more

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