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Federal Circuit Judges Disagree Over Contours of Section 101

The increased prominence of Section 101 in computer-related patent disputes stems from the Supreme Court case of Alice Corp. v. CLS Bank. Before Alice reached the Supreme Court, ten judges of the Federal Circuit considered...more

Hotly Anticipated Broadband Privacy Order Released by FCC

On Nov. 2, 2016, the FCC released its long-awaited broadband privacy Order and rules by a 3-2 vote. The Order comes nearly 18 months after the Commission moved to reclassify broadband internet access service (“BIAS”) as a...more

Federal Copyright Preemption of State Law Claims – Still a Powerful Defense Tool in Commercial Litigation

Recently our colleagues Natalie Arbaugh and Rex Mann discussed the Fifth Circuit’s decision in GlobeRanger Corp. v. Software AG USA, Inc., 2016 WL 4698270 (5th Cir., Sept. 7, 2016), focusing on the Court’s discussion of the...more

USPTO Issues New Guidance On 101

The new guidance discusses the McRO and BASCOM decisions. Regarding McRO, the guidance emphasizes not overgeneralizing the claims and considering whether the subject matter allows a computer to perform a function not...more

Federal Circuit Affirms District Court Decision Holding Asserted Software Claims Invalid as Directed to Patent Ineligible Subject...

Plaintiff FairWarning sued defendant Iatric Systems for infringement of U.S. Patent No. 8,578,500 (the “’500 patent”), titled “System and Method of Fraud and Misuse Detection”. The ’500 patent discloses ways to detect fraud...more

Proposed New FDA Labeling Rules Would Result in Increased Generic Drug Product Liability Claims

After several years of delay, FDA announced this summer that it expects to publish new rules in April 2017 that will permit generic drug companies to make unilateral changes to their warning labels, even if the brand does...more

Software Patent Eligibility: Preemption Gets Starring Role at the Federal Circuit

The Supreme Court decision Alice Corp. v. CLS Bank, 134 S. Ct. 2347 (2014) pronounced, in no uncertain terms, preemption “drives” patent subject matter eligibility and its exceptions. But after Alice, it appeared preemption’s...more

REDUCING RISKS: Court Finds Copyright Act Does Not Preempt State Trade Secret Claim

Over the years, it has proven difficult to fit software in any one category of IP protection. And while software’s ability to seemingly transcend patents, copyright, and trade secrets provides software developers and...more

What the Federal Circuit's Decision in McRO v. Bandai Could Mean for Computer-Based Inventions and Other Innovations

In McRO v. Bandai, the Federal Circuit provides particular guidance and clarity on the issue of preemption, which it describes as “The concern underlying the exceptions to § 101.” In addition to providing another guidepost...more

McRo: Preemption Matters After All

The Federal Circuit has released its long-awaited opinion in McRo v. Bandai, reversing the lower court’s decision that the claims were ineligible subject matter. McRo’s invention in U.S. 6,307,576 was a method used in 3D...more

Federal Circuit Emphasizes Preemption and Realization as the Path to Eligibility

On September 13th the Federal Circuit issued a very encouraging decision in the MCRO, Inc. v. Bandai Namco Games America appeal. The panel reversed a judgment on the pleadings entered by a Central District of California...more

Toxic Tort and Environmental Litigation: What Does a Reformed TSCA Mean for Private Rights of Action Under State Law? (9/16)

As we reported, on June 22, 2016, President Obama signed the Frank R. Lautenberg Chemical Safety Reform for the 21st Century Act (the Act) into law, enacting the Toxic Substances Control Act’s (TSCA) first reform in its four...more

The Demise of the Presumption Against Preemption in Express Preemption Cases

We’ve always been bothered by the presumption against preemption – so much that this blog’s first major substantive post was on that subject. Even before that, back in the Bone Screw days, we remember the presumption against...more

The Marijuana Industry’s Big Win: The DEA’s Refusal to Reschedule

Earlier this year, when the U.S. Drug Enforcement Agency (DEA) indicated it would have an announcement regarding a now five-year-old petition to reschedule cannabis, numerous industries on the “outside looking in” were...more

New FDA Draft Guidance Helps Define the Scope of §510(k) Medical Device Preemption

Earlier this month the FDA issued a draft guidance entitled “Deciding When to Submit a 510(k) for a Change to an Existing Device.” It’s long, and anyone interested in reviewing the whole thing can download it from the FDA’s...more

The silver lining in the DEA’s refusal to reclassify cannabis

As far back as 2011, elected officials have sent letters to the U.S. Drug Enforcement Administration urging it to reclassify cannabis by removing it from the list of Schedule I controlled substances. After promising a...more

The DEA Is Getting Past Just Saying No: Scientific Research Into Medical Uses of Marijuana Is a Bridge Toward a Policy Shift

The U.S. Drug Enforcement Agency (DEA)’s recent decision declining to reschedule cannabis is a step bridging the national discussion — a step toward a possible agreement on medical cannabis through scientific research. The...more

Two Favorable Tysabri Rulings Add Clarity to “Clear Evidence” Preemption Standard – and More

Anyone who has checked our post-Levine innovator drug & vaccine cheat sheet lately has no doubt noticed our two most recent entries, Gentile v. Biogen Idec, Inc., 2016 WL 4128159 (Mass. Super. July 25, 2016), and Christison...more

DEA Rejects Petitions Seeking to Reschedule Marijuana

The long-awaited decision maintains the illegal status of marijuana under federal law. On August 12, the US Drug Enforcement Agency (DEA), despite much speculation to the contrary, published in the Federal Register its...more

FCC Thwarted in Efforts to Preempt State Broadband Laws

The U.S. Court of Appeals for the Sixth Circuit has struck a major blow to the FCC’s efforts to remove barriers to broadband service and promote competition in broadband markets. In State of Tennessee v. FCC, the court...more

Sixth Circuit Rejects FCC’s Effort To Preempt State Regulation Of Municipal Broadband Providers

The FCC’s February 2015 meeting yielded two significant and controversial orders premised on the agency’s authority under Section 706 of the Communications Act: its much-publicized Open Internet Order, and its less-publicized...more

Regulators Nationwide Weigh in on CPUC Litigation

In May, we posted a blog on litigation filed by telecom providers and trade associations to prevent the California Public Utilities Commission (CPUC) from requiring Plaintiffs to turn over competitively sensitive data to a...more

California Court Clears The Way For Express Preemption

Not everyone sees eye to eye on federal preemption, including judges. Take for example the conflicting opinions from the California Court of Appeal applying the express preemption provision of the Medicare Prescription Drug,...more

Obama signs GMO label bill into law

On Friday, July 29, US President Obama signed into law S. 764, which overturns Vermont's GMO label law and establishes a national standard for GMO (genetically modified organism) labeling. The US House of Representatives...more

New Federal Drone Regulations Leave Unanswered Questions

The Federal Aviation Administration Extension, Safety, and Security Act of 2016 (“FAA Reauthorization”) was signed into law July 15. The FAA Reauthorization contained at least five sections directed specifically at unmanned...more

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