Companies rely on intellectual property (“IP”) rights to protect their valuable information, creations, and branding. IP rights come in several forms: copyrights, trademarks, patents, and trade secrets.
As the U.S....more
Many of us have said, “Bacon makes everything better.” Can you imagine the accolades someone would receive if they contributed to an invention that improves bacon? Well, it turns out that not all contributions count when it...more
In 2018, United Cannabis Corporation (“UCANN”) sued Pure Hemp Collective (“Pure Hemp”) for infringement of U.S. Patent No. 9,730,911 (the “‘911 patent”), entitled “Cannabis Extracts and Methods of Preparing and Using the...more
The United States Patent and Trademark Office (“USPTO”) has reduced the patent fees for small businesses and certain other applicants. This fee reduction is part of an effort to reduce financial burdens and resulting barriers...more
It’s not surprising to hear talk of flowers in February, but it is unusual when that discussion is in a Federal Circuit opinion. This month the Federal Circuit decided a case involving whether the display of a flowering...more
Do defendants and the court have the right to ask who is funding a particular patent litigation? Chief Judge Connolly in Delaware says they do, and in In re Nimitz, the Federal Circuit denied a request to stop the judge’s...more
Previously, the Court of Appeals for the Federal Circuit (“Federal Circuit”) has found that a non-human may infringe patents. Arguably, an AI system, which is a non-human, can also create or invent. But can an AI system be a...more
Most patent claims describe an invention using positive claim limitations that expressly recite the required elements or features of an invention. Sometimes, however, it is necessary, or desirable, to use a negative claim...more
Since the Alice v. CLS Bank and Mayo v. Prometheus decisions, district courts and the Court of Appeals for the Federal Circuit has struggled to determine and navigate the boundary between what is and what is not...more
Willful patent infringement can result in enhanced, and in some case treble, damages but not in every instance. Because the standard for finding willful infringement has traditionally been lower than that for enhancing...more
In recent years, the Supreme Court has decided a number of cases, including Bilski v. Kappos, Mayo Collaborative Servs. v. Prometheus Labs., Ass’n for Molecular Pathology v. Myriad, and Alice Corp. v. CLS Bank Int’l, which...more
One way to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) is through a petition for inter partes review (“IPR”). The USPTO Director has delegated responsibility to the Patent...more
The case of Egenera, Inc. v. Cisco Systems, Inc. raised the question of whether inventors named on a patent can be repeatedly changed as litigation strategy changes. Because of judicial estoppel, the district court said no...more
Following the America Invents Act, a petition for inter partes review (“IPR”) has become a common method for challenging the validity of a patent before the Patent Trial and Appeal Board (“PTAB”) at the United States Patent...more
An unborn baby’s DNA (“fetal DNA”) can be used to determine the sex of the baby as well as to test for conditions such as Down’s syndrome. In the past, procedures to get samples of fetal DNA for testing involved sticking a...more
It has become commonplace for companies such as Google to use local servers to provide faster service to customers. This practice has raised the question as to whether those local servers constitute “a regular and...more
To use a textbook or other reference to challenge the validity of a patent in a petition for inter partes review (“IPR”), the textbook must have been “publicly accessible” prior to the date of the challenged patent to qualify...more
When sued for patent infringement, a defendant can still petition for inter partes review (“IPR”) of the asserted patent at the United States Patent and Trademark Office (“USPTO”) if the petition is filed within one year of...more
Many resources are being devoted to preventing data breaches and protecting privacy. In fact, patents have issued on various approaches. But are those approaches really patentable? In a recent challenge to OneTrust’s patent,...more
Have you ever driven away from your home and then had that irritating doubt in your mind as to whether you remembered to close your garage door? I know I have. No matter how hard I try to search my brain’s archives, I really...more
Shockingly, some at the Patent Trial and Appeal Board (“PTAB”) think textbook publishers who include dated copyright notices don’t actually publish the textbooks that year! Further, would you have imagined an argument that...more
The United States Supreme Court granted a writ of certiorari in Iancu v. NantKwest to determine whether a patent applicant, win or lose, must pay the salaries of the United States Patent and Trademark Office’s (“USPTO”)...more
Prior to the Leahy-Smith America Invents Act (“AIA”), the patent statute (35 U.S.C. § 102(b)) prohibited patenting an invention that was “on sale in this country, more than one year prior to the date of the application for...more
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Patent Applications ,
Patent Infringement ,
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Pharmaceutical Industry ,
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Third-Party Relationships
Non-statutory, or obviousness-type, double patenting (“ODP”) is a judicially created doctrine that prohibits an inventor from effectively extending the monopoly on a patented invention by applying for a later patent with...more
Intellectual property disputes will again take their place on stage at the U.S. Supreme Court this term when the court addresses at least two IP questions. 1. Can the government challenge patents under the America Invents...more