CAFC

News & Analysis as of

ITC Declines to File Petition for Certiorari – CAFC Holding that ITC Does Not Have Jurisdiction over Digital Imports Stands

The deadline has come and gone for the ITC and patentee Align to file petitions for certiorari seeking review by the Supreme Court of the Federal Circuit’s decision in ClearCorrect. On November 10, 2015, a panel of the...more

Magnum Offers New Path for Challenging AIA Decisions: Burden of Production

On July 25, 2016, the Court of Appeals for the Federal Circuit (CAFC) held in In re Magnum Oil Tools International (Newman, O’Malley & Chen) that the burden of production to show unobviousness does not shift to a patent owner...more

En Banc CAFC Requires UCC Sale For On Sale Bar

In an en banc decision issued in The Medicines Company v. Hospira, Inc., the Federal Circuit determined that in order for a commercial transaction to trigger the on-sale bar of § 35 USC 102(b), it must “bear the general...more

Can FDA Implement The BPCIA As The CAFC Suggested?

In Amgen v. Apotex, the Federal Circuit held that under the Biologics Price Competition and Innovation Act (“BPCIA”), “an applicant must provide a reference product sponsor with 180 days’ post-licensure notice before...more

CAFC Finds Cryopreservation Method Patent Eligible

The Federal Circuit ruled that the cryopreservation methods at issue in Rapid Litigation Mgmt. Ltd. v. CellzDirect Inc., are patent eligible under 35 USC § 101. It therefore vacated and remanded the decision of the U.S....more

Breaking News: CAFC Affirms in Amgen v. Apotex

The Federal Circuit issued its decision in Amgen v. Apotex (re: Apotex’s Neulasta biosimilar) this morning. The Court affirmed the district court, holding that the commercial-marketing provision in 42 U.S.C. § 262(l)(8)(A)...more

Resurfacing of Preemption for Patent-Eligibility of Software Inventions – The Bascom Decision

Harness the Lesson - It seems the preemption argument in favor of patent-eligibility has resurfaced as an argument for patent-eligibility of claims directed to software-related subject matter if the claimed invention does...more

CAFC Hands Down Significant § 101 Decision in Bascom Global Internet

In Bascom Global Internet v. AT&T Mobility LLC, Bascom Global sued for infringement of US Patent No. 5,987,606, titled “Method And System For Content Filtering Information Retrieved From An Internet Computer Network,”...more

CAFC Upholds Same Day Continuation Applications

The Federal Circuit decided not to disturb the “longstanding administrative construction” of 35 USC § 120 that permits the filing of a continuation application on the same day its parent application grants as a patent. The...more

USPTO Releases Update on Patent Eligibility Decision in Light of Enfish

On May 19, the USPTO released an update to patent examiners regarding the U.S. Court of Appeals for the Federal Circuit’s (CAFC) recent decision in Enfish, LLC v. Microsoft Corp. and TLI Communications LLC v. A.V. Automotive,...more

Enfish and TLI: A Study of the CAFC’s Recent Section 101 Opinions

Like a ray of light at the end of a long dark tunnel, the Federal Circuit’s recent reversal of a determination of patent ineligibility in Enfish, LLC v. Microsoft Corp., __ F.3d __ (Fed. Cir. May 12, 2016) (Hughes, J.)...more

CAFC Affirms Finacea Gel Infringement Under Doctrine of Equivalents

In Intendis GmbH v. Glenmark Pharmaceuticals Inc., USA, the Federal Circuit affirmed the district court decision that found infringement under the doctrine of equivalents. This case shows that the doctrine of equivalents...more

CAFC Finds Software Patent Eligible Under 35 U.S.C. §101

The Federal Circuit in Enfish LLC v. Microsoft reverses the California District Court decision that several patents related to a “self-referential” database were invalid as ineligible under 35 U.S.C. §101. Overview -...more

PTAB’s Decision to Ignore New Arguments in Petitioner Reply Affirmed by CAFC

On May 9, 2016, the Federal Circuit affirmed a judgment by the PTAB that the challenged claims in Illumina’s US 7,566,537 are not unpatentable. The Federal Circuit affirmed in a way that imposes an important constraint on the...more

Decision Circumscribes Duty Circumvention

On April 5, 2016, a three-judge panel of the Court of Appeals for the Federal Circuit (“CAFC”) issued an opinion in Deacero S.A. de C.V. v. United States, Appeal Nos. 2015-1362, 2015-1363, 2015-1367, affirming the final...more

Novel Applications of Natural Laws Remain Unpatentable Under 35 USC §101

In Genetic Technologies (GTG), the U.S. Court of Appeals for the Federal Circuit (CAFC) held the line in the patent eligibility saga in the field of biotechnology. GTG asserted U.S. Patent No. 5,612,179 against Merial and...more

Estoppel Does Not Attach When Petitioner’s Grounds Are Denied As Redundant

Under 35 U.S.C. 315(e)(1), a petitioner in an inter partes review of a claim in a patent that has resulted in a final written decision by the Board may not request or maintain a proceeding before the Patent Office with...more

Supreme Court Ruling on at Least Five Patent-Related Cases

To date, the Supreme Court has granted certiorari (commonly referred to as cert) to five patent-related cases this term, which will result in three oral arguments likely to be decided before the end of the term. Two of the...more

Functional Claim Language Does Not Render Apparatus Claim Indefinite For Including Both Method And Apparatus

Patent applications involving electrical and/or computer related inventions often involve functional claim language. For example, software may be claimed in terms of its function. One or more components of an electrical...more

Fed. Cir. Decision Reiterates The Importance Of Raising All Bases For Invalidity In An IPR Petition

On March 15, 2016, the Federal Circuit vacated the PTAB’s final rejection of a claim, finding that the rejection was procedurally improper because the PTAB relied on a basis raised for the first time during the oral argument....more

In re Ray Smith: Gaming Art Patents Now a Bad Bet

In seven short pages the CAFC appear to have invalidated all patents directed to the gaming arts that do not utilize some form of new material objects (e.g., new type of cards or new physical playing board). The panel,...more

The CAFC Rules That It Lacks Jurisdiction To Review PTAB’s Denial Of Institution On “Redundant” Grounds

The Federal Circuit’s Harmonic Inc. v. Avid Tech decision last week is the latest in a string of decisions from the CAFC ruling that it lacks jurisdiction to review various aspects of PTAB institution decisions. In this...more

CAFC Vacates a PTAB Decision Due To Faulty Claim Construction

In a rare case of disagreeing with the Patent Trial and Appeal Board (PTAB), the Court of Appeals for the Federal Circuit (CAFC) vacated and remanded a PTAB decision invalidating claims 10-25 of PPC Broadband, Inc.’s U.S....more

CAFC Partially Relaxes IdleFree Requirements for Amendments During IPR

On February 11, 2016, in Nike v. Adidas (Fed. Cir. 2016), the Federal Circuit partially relaxed the hurdle for a patent owner to amend claims during an IPR or other AIA proceeding. This follows the PTAB’s own earlier partial...more

Intellectual Property 2015 Year In Review

Introduction - As discussed in greater detail below, there were a number of notable developments in intellectual property law in 2015. Patent eligibility challenges to the validity of software, business methods, and...more

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