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Fintiv and the Resurgence of PTAB Discretionary Denials Involving the ITC

On March 24, 2025, the United States Patent and Tradmark Office (“USPTO”) issued a new Memorandum providing guidance on discretionary denials (or “Fintiv denials”) for inter partes review (“IPR”) challenges based on...more

Federal Circuit Clarifies That “Quantitatively Small” Investments Can Establish Significant and Substantial Investment in Domestic...

On Friday, Feb. 7, 2025, the Federal Circuit issued a precedential opinion in Wuhan Healthgen Biotech. Corp. v. U.S. Int’l Trade Comm’n, No. 23-1389, 2025 WL 420819 (Fed. Cir. 2025). The three-judge panel, consisting of Chief...more

USITC Commissioner Series: Commissioner Schmidtlein is Stepping Down, Which Could Lead to More Tailored Exclusion Orders

On Thursday, January 16, 2025, the U.S. International Trade Commission (ITC) announced that Commissioner Rhonda K. Schmidtlein will step down on February 1, 2025. Commissioner Schmidtlein was sworn in on April 28, 2014 and...more

Is 2025 the Year that the International Trade Commission Gives Guidance on Standard Essential Patents?

A big question when it comes to fair, reasonable and non-discriminatory (FRAND/RAND) defenses for standard essential patents (SEPs) is whether and when a court should issue an injunction. One jurisdiction that may provide an...more

USITC Commissioner Series: The Court's FRAND Dance May Soon Reach its Finale

In prior posts for this series, we have discussed areas of law where Commissioners have voiced their dissent and demonstrated a clear divide among the decision-makers. But when it comes to Standard Essential Patents (SEPs),...more

USITC Commissioner Series: Top Dissenting Issues

Following my colleagues’ efforts in this series, this post examines the dissent/concurrence practice of the Commissioners at the U.S. International Trade Commission (USITC) – specifically the “hot” issues that drew the most...more

USITC Commission Series: Meet the (Vocal) Commissioners

As my colleagues Brian Johnson and Ian Swan reported in March, dissenting and concurring opinions in Section 337 Investigations, either as footnotes or separate opinions, at the International Trade Commission (ITC) have...more

USITC Commission Series: the Era of the Mini-Opinion Has Begun

At the International Trade Commission (ITC), every decision made by an Administrative Law Judge (ALJ) is subject to review by a panel of up to six Commissioners. In general, the Commission speaks as a unified voice through...more

Judge Gilstrap: For Implementers of SEPs, the Penitent Will Pass

According to Judge Gilstrap in the Eastern District of Texas, obligations to negotiate under fair, reasonable, and non-discriminatory (FRAND) terms apply not only to standard essential patent (SEP) holders but to implementers...more

IoT SEP Negotiations: New Players in a Complicated Game

Why should internet of things (IoT) manufacturers prepare to be approached by standard essential patent (SEP) holders? A recent trend suggests that many implementers may soon have to negotiate licenses that implicate...more

3 Areas Look Ripe for New SEP Licensing, Litigation

Litigation over standard-essential patents, or SEPs, can be a cyclical phenomenon, where litigation follows a generational change in technology. We saw it with 3G and 4G technology, where each generational change led to a...more

Trade Secrets, ET, and the ITC

The U.S. International Trade Commission (ITC) has broad power to issue exclusion orders blocking the importation of goods determined to have infringed or misappropriated complainants' IP rights. Moreover, the ITC’s in rem...more

SEP Negotiations: The Importance of Being Will(ing)

More and more, when negotiating licenses for standard essential patents (SEPs) on fair, reasonable, and non-disciminatory (FRAND) terms, there has been an increased emphasis on the idea of a “willing" licensor or licensee....more

SEP Licensors and Licensees Become Increasingly Fragmented

In a report by IPlytics, published today, they have confirmed what most in the business already presumed: that ownership of 5G standard essential patents (SEPs) is becoming increasingly fragmented. That means, as each patent...more

Would Congress' Proposed ITC Reforms Thwart NPEs?

Nonpracticing entities have been increasingly active at the U.S. International Trade Commission in recent years, bringing a record 32% of Section 337 Investigations in 2022. In a sense, the rise of NPEs at the ITC was by...more

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