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Copy Cats II: Nexus of Copying Required to Substantiate Non-Obviousness

On January 28, 2021, the Federal Circuit affirmed the general principle that the mere fact of copying by an accused infringer is insufficient to rebut a charge of obviousness (L’Oreal USA, Inc. v. Olaplex, Inc.; appeal from...more

Sort It Out: Cell Sorting Method with Data Processing Steps Patent Eligible

In XY, LLC v. Trans Ova Genetics, LC (Case 2019-1789, issued July 31, 2020), the Federal Circuit provided another example of a life sciences method claim avoiding patent ineligibility under the Alice framework at step one,...more

Federal Circuit Narrows Availability for IPR Appeals Under Arthrex

By recognizing a constitutional deficiency in the appointment of Patent Trial and Appeal Board (“PTAB”) judges, the Federal Circuit in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019) set the stage for...more

Copy Cats: Evidence of Copying a Specific Product NOT Required

On October 30, 2019, the Federal Circuit held that evidence of copying may be used to rebut an obviousness challenge, even if that evidence does not relate to the copying of a specific product. (Liqwd, Inc. v. L’Oreal USA,...more

Prosecution Strategies for Avoiding Patent Eligibility Rejections for Diagnostics

Under the Mayo/Alice test for patent eligibility, answering the questions of whether any particular claim is “directed to” a “judicial exception” without “significantly more” remains in many ways a substantial and...more

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