Intellectual Property Civil Procedure Administrative Agency

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Federal Circuit Review | July 2016

Obvious Combinations Do Not Need to Be Physically Combinable - In Allied Erecting and Dismantling Co., Inc. v. Genesis Attachments, LLC, Appeal No. 2015-1533, the Federal Circuit affirmed the PTAB’s invalidity finding...more

PTAB Institution Decision Does Not Shift Burden from the Patent Challenger to the Patentee

The Federal Circuit previously clarified that a petitioner’s burden to prove unpatentability never shifts to the patent owner. See Dynamic Drinkware, LLC v. Nat’l Graphics, Inc. On July 25, 2016, the Federal Circuit’s In re...more

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

Legal FAQ: Introduction to Patent Litigation

Who enforces a patent? When can a district court patent case be filed? What does the patent holder have to prove to win an infringement suit? Fenwick patent litigators Charlene Morrow and Dargaye Churnet cover these and other...more

Federal Circuit Patent Updates - July 2016 #2

WBIP, LLC v. Kohler Co. (No. 2015-1038, -1044, 7/19/16) (Moore, O'Malley, Chen) - Moore, J. Affirming denial of JMOL that patent was invalid as obvious and lacked an adequate written description, affirming finding of...more

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

Supreme Court 2015-2016 Intellectual Property Case Review

At the end of June, the U.S. Supreme Court’s October 2015 term came to a close. The Court issued written decisions in three intellectual property cases during that term, the same number of cases as during the previous term,...more

Evidence Alley: Lightweight Fabric: Admissibility versus Weight at the PTAB

Many parties in front of the Patent Trial and Appeal Board (Board) struggle with the handling of evidentiary issues. This struggle is heightened when expert evidence is the focus. In Tietex International, Ltd. v. Precision...more

Status Quo At The PTAB For Now: Supreme Court Makes No Changes to IPR Practice

Recently, the Supreme Court declined to make any changes to IPR procedure in its opinion in Cuozzo Speed Technologies, LLC v. Lee, 579 U.S. ___ (2016). Relying primarily on statutory language and concepts of agency rulemaking...more

Hot Topics: AIA Estoppel Provisions Clarified

The Federal Circuit’s recent decision in Shaw Industries Group, Inc. v. Automated Creel Systems, Inc., has shed some light on the estoppel provisions in America Invents Act (AIA) post-grant proceedings. Like the estoppels in...more

Federal Circuit Offers Path Through Section 101 Thicket for Biotech Method Patents

In its July 5, 2016 decision in Rapid Litigation Management Ltd and In Vitro, Inc. v. CellzDirect, Inc. and Invitrogen Corp., the Federal Circuit held that patent claims directed to an improved method of cryopreserving...more

Intellectual Property Law - July 2016

Supreme Court: Status Quo in Cuozzo - Why it matters: On June 20, 2016, the Supreme Court decided Cuozzo Speed Technologies v. Lee, where it rejected challenges to the Patent Trial and Appeal Board (PTAB) inter partes...more

Perspectives On The PTAB - Inaugural Issue

We are pleased to share this Perspectives on the PTAB newsletter. Its content is directed toward providing information and analysis of the decisions made by the Patent Trial and Appeal Board. We hope that this newsletter...more

PTAB Provides Procedural Guidance, Designates Five Opinions as Precedential

On May 10, 2016, the Patent Trial and Appeal Board (PTAB or Board) designated five post-grant trial decisions as precedential, bring the total number of precedential decisions in inter partes review (IPR) and covered business...more

Burden on Motion to Amend in IPR

Applying its own precedent, the US Court of Appeals for the Federal Circuit confirmed that the burden remains on the patent owner to demonstrate the patentability of substitute claims over the art of record in an inter partes...more

Supreme Court’s Cuozzo Decision Endorses AIA Trial Proceedings, But Preserves Key Roles for both the PTAB and Federal Courts in...

In Cuozzo Speed Techs., LLC v. Lee,[i] the U.S. Supreme Court rejected the patent owner’s challenge to the U.S. Patent and Trademark Office’s implementation of the Leahy-Smith America Invents Act’s new post grant proceedings....more

Supreme Court Decides Two Key Aspects of IPR in Cuozzo Speed Techs., LLC v. Lee

The U.S. Supreme Court ruled on June 20, 2016 in Cuozzo Speed Techs., LLC v. Lee that: (1) the statutory authority of the Patent Trial and Appeal Board (“Board”) in instituting an inter partes review (“IPR”) proceeding is...more

Status Quo at the PTAB for Now: Supreme Court Makes No Change to IPR; Judicial Review and Claim Construction Standard Remain the...

The Supreme Court’s decision will not likely change much in the near term — especially in light of the fact that it made no express changes to PTO procedure for and regulations governing IPR. Last week, the U.S. Supreme...more

Busy Supreme Court Docket In Intellectual Property Highlighted By Cases On Enhanced Damages, Attorney's Fees, Claim Construction...

In June 2016, the U.S. Supreme Court handed down a decision in Halo Electronics v. Pulse Electronics (14-1513), in which it addressed the Federal Circuit's test for determining whether enhanced damages should be awarded for...more

Federal Circuit Patent Updates - June 2016

Cuozzo Speed Technologies, LLC v. Lee (No. 2015-446, 6/20/16) (Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan) - June 20, 2016 12:49 PM - Breyer, J. Affirming Federal Circuit decision that the...more

Federal Circuit Review | June 2016

The PTAB Does Not Have to Consider New Arguments Raised in IPR Reply Briefs - In Intelligent Bio-Systems, Inc. v. Illumina Cambridge Ltd., Appeal No. 2015-1693, the Federal Circuit upheld a PTAB decision finding of...more

Litigation Alert: Supreme Court Leaves Intact PTAB Authority to Institute and Regulate Inter Partes Review Proceedings

This week in Cuozzo Speed Technologies, LLC v. Lee, the United States Supreme Court decided two important questions related to the power of the Patent Trial and Appeal Board (PTAB) over inter partes review proceedings. First,...more

Federal Circuit Recognizes New, but Limited, Privilege for Patent Agent Communications

Introduction - Patent agents are licensed to practice before the United States Patent and Trademark Office (“USPTO”), and perform the same duties as patent attorneys in proceedings before the USPTO, including preparing...more

Supreme Court Holds that a Decision to Institute an IPR Proceeding Is Not Subject to Judicial Review and that the USPTO May Use...

On June 20, 2016, the Supreme Court issued its decision in Cuozzo Speed Technologies, LLC v. Lee which involved an appeal from the first decision by the Court of Appeals for the Federal Circuit from an Inter Partes Review...more

Federal Circuit Rules That PTAB May Base AIA Trial Decision on Facts Outside Petition for Review

The U.S. Court of Appeals for the Federal Circuit recently affirmed a decision by the USPTO Patent Trial and Appeal Board (PTAB) invalidating two patents after an inter partes review proceeding, even though the decision...more

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