After reflecting upon the events of the past twelve months, Patent Docs presents its 16th annual list of top patent stories. For 2022, we identified ten stories that were covered on Patent Docs last year that we believe had (or are likely to have) a significant impact on patent practitioners and applicants. Today, we count down stories #10 to #8, and later this week we will count down the remaining top stories of 2022. As with our other lists (2021, 2020, 2019, 2018, 2017, 2016, 2015, 2014, 2013, 2012, 2011, 2010, 2009, 2008, and 2007), links to our coverage of these stories (as well as a few links to articles on related topics) have been provided in case you missed the articles the first time around or wish to go back and have another look. As always, we love to hear from Patent Docs readers, so if you think we left something off the list or disagree with anything we included, please let us know. In addition, we will be offering a live webinar on the "Top Patent Law Stories of 2022" on January 24, 2023 from 10:00 am to 11:15 am (CT). Details regarding the webinar, which will focus on a few of the most important stories on this year's list, can be found here.
10. Federal Circuit Denies En Banc Review in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA
The 2020 decision by a divided Federal Circuit panel in GlaxoSmithKline LLC v. Teva Pharmaceuticals USA regarding the extent to which an ANDA applicant who obtained regulatory approval under the carve-out provisions of 21 U.S.C. § 355(j)(2)(A)(viii) could be liable for inducement of infringement under 35 U.S.C. § 271(b) caused something of an uproar, leading to a panel rehearing on the matter but ultimately coming to the same conclusion. Both decisions were issued in the face of a strong dissent by Judge Prost, in the first decision while she was Chief Judge. In February, the Federal Circuit decided not to rehear the matter en banc, over the dissenting opinions of three of the judges (including Judge Prost). The decision by the full Court was announced in a simple Order to that effect, noting that Judges Lourie and Cunningham did not participate in the decision. The Order was accompanied by three written dissents: one by Judge Prost, joined by Judges Dyk and Reyna; another by Judge Dyk writing alone, and the third by Judge Reyna. The majority consisted of Chief Judge Moore and Judges Newman (who was the third member of the original panels), O'Malley, Taranto, Chen, and Stoll. Provided that the panel decision does not significantly inhibit "skinny-label" practice, these issues are sure to recur and be the subject of additional Federal Circuit decisions which will make the consequences of this decision, and the Federal Circuit's decision not to review the panel opinion en banc, more evident.
For information regarding this and other related topics, please see:
• "GlaxoSmithKline LLC v. Teva Pharmaceuticals USA (Fed. Cir. 2022)," February 15, 2022
9. New York Times Reopens Attack on U.S. Patent System
Over the years, this blog has found itself at odds with The New York Times on the issue of patenting. See, e.g., "Anti-Patent ("Sullivan?") Malice by The New York Times," January 29, 2007; "Science Fiction in The New York Times," February 13, 2007; "The Anti-Patent Beat Goes on at The New York Times," July 1, 2007; "The Continuing Assault on Innovation at The New York Times," July 15, 2007; "New York Times to Innovation: Drop Dead," April 30, 2008; "New Attack on Patenting in The New York Times," September 7, 2008; "More Patent Nonsense from The New York Times," April 17, 2011.
In April, The New York Times published an editorial opinion entitled "Save America's Patent System," in which the paper bemoaned the purported prevalence of "bad patents" -- including "uninspiring tweaks" to existing products -- that supposedly undermine innovation. The Times Editorial Board decided that it was time to announce that the "United States Patent and Trademark Office is in dire need of reform." Were that the case, the Times' rhetoric would deserve serious consideration; as it is, the paper continues a history of wrongheaded, faux populist rhetoric that comes to the entirely wrong conclusion.
For information regarding this and other related topics, please see:
• "Faux-Populist Patent Fantasies from The New York Times," April 17, 2022
• "Before You Complain About So-Called Bad Patents, Read This," April 17, 2022
8. Senator Tillis Releases Proposal to Reform 35 U.S.C. § 101
In August, Republican Senator Thom Tillis of North Carolina released a new proposal to reform the text of 35 U.S.C. § 101. The Senator's last effort in doing so died on the vine in 2019, purportedly due to stakeholders being too far apart in their visions of what patent eligibility should be all about. But there seems to be a renewed interest in addressing at least some of the ambiguities introduced by the Supreme Court in Alice Corp. v. CLS Bank Int'l and Mayo Collaborative Services v. Prometheus Laboratories, Inc. Those decisions, which came down in 2014 and 2012, respectively, led to the current state of affairs in which diagnostic methods are effectively unpatentable and software patents can be invalidated based on fuzzy, conclusory reasoning. Senator Tillis' proposed revisions to § 101 attempt to find a middle ground between varying stakeholder concerns by overruling some aspects of the Supreme Court's recent eligibility jurisprudence and codifying other aspects. It is unlikely that any one stakeholder will be entirely satisfied with this proposal, but as a starting point the patent community could do much worse.
For information regarding this and other related topics, please see:
• "The EFF is Patently Wrong," August 24, 2022 (Tillis bill)
• "More on Professor Sarnoff's Perspective on Tillis Patent Eligibility Bill," August 9, 2022
• "Professor Sarnoff Provides His Perspective on Tillis Bill," August 8, 2022
• "Senator Tillis' Patent Eligibility Reform Proposal: A Biopharma Perspective," August 3, 2022
• "Senator Tillis Proposes Patent Eligibility Reform (Again)," August 3, 2022
