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
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
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 ruling on motions to dismiss and motions for summary judgment, courts have found a number of patents ineligible under 35 U.S.C. § 101 as a matter of law. However, in Berkheimer v. HP, the Court of Appeals for the Federal...more
The answer is “Yes” because the U.S. government has waived sovereign immunity for claims of patent infringement. This means the U.S. government can be sued for patent infringement in at least some instances. However,...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
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
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
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
In recent years, the U.S. Supreme Court has considered a number of intellectual property and related cases, but many issues remain unresolved. Therefore, it is important to look both at the cases currently before the U.S....more
The U.S. Supreme Court’s in TC Heartland v. Kraft Food, and subsequently the Court of Appeals for the Federal Circuit in In re Cray Inc., addressed where patent litigation can be filed under the patent venue statute, 28...more
Currently, the standard for claim construction is different in AIA reviews before the United States Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB) than in proceedings in federal district courts...more
The Court of Appeals for the Federal Circuit just highlighted another approach plaintiffs can use to overcome early challenges to the validity of patent claims under 35 U.S.C. §101. What is that approach? It is a classic...more
The Leahy-Smith America Invents Act (“AIA”) provided for trials before the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) in inter partes reviews, post-grant reviews, the...more
Until the U.S. Supreme Court’s May 22, 2017 ruling in TC Heartland v. Kraft Foods, the Court of Appeals for the Federal Circuit and the United States district courts had interpreted the patent venue statute, 28 U.S.C....more
For over 25 years, the Court of Appeals for the Federal Circuit and the United States district courts have interpreted the patent venue statute 28 U.S.C. §1400(b) to allow plaintiffs to bring patent infringement cases against...more
The Patent Trial and Appeal Board (“PTAB”) has rarely allowed patent owners to replace or modify claims during inter partes review (“IPR”), covered business method review, or post-grant review. In fact, in April 2016 the...more
Although arguably foreshadowed, some may be surprised to learn that a party with the right to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) may not have the right to appeal an...more