Congress in writing laws is faced with a dilemma. On the one hand the laws must be sufficiently clear and specific to enable enforcement, but on the other, the myriad of circumstances that can arise make it impossible to...more
The Honorable Pauline Newman, Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, has been battling her suspension from the Court imposed by the Judicial Council for two years (including proceedings leading...more
Suspended Federal Circuit Judge Pauline Newman's lawsuit (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit") against Chief Judge Kimberly Moore, and Circuit Judges Sharon Prost and Richard...more
The efforts to have Judge Pauline Newman, Circuit Judge on the Court of Appeals for the Federal Circuit, unfit or guilty of misconduct have been the subject of reporting in the patent blogosphere (Patently-O, IP Watchdog),...more
5/22/2023
/ Article III ,
Constitutional Challenges ,
Due Process ,
Fifth Amendment ,
First Amendment ,
Fourth Amendment ,
Gag Orders ,
Judges ,
Judicial Misconduct ,
Probable Cause ,
Removal For-Cause ,
Separation of Powers
The Supreme Court heard argument on Monday in U.S. v. Arthrex, involving the question of whether appointment of Administrative Patent Judges (APJs) and their authority under the Leahy-Smith America Invents Act violates the...more
3/4/2021
/ Administrative Patent Judges ,
America Invents Act ,
Appointments Clause ,
Constitutional Challenges ,
Director of the USPTO ,
Due Process ,
Inferior Officers ,
Patent Trial and Appeal Board ,
Patents ,
Principle Officers ,
SCOTUS ,
United States v Arthrex Inc
Arthrex recently filed a(nother) certiorari petition with the Supreme Court, this time in Arthrex, Inc. v. Smith & Nephew, Inc., which has also been the subject of petitions from the U.S. government and Smith & Nephew. (This...more
7/20/2020
/ Administrative Patent Judges ,
America Invents Act ,
Appointments Clause ,
Arthrex Inc v Smith & Nephew Inc ,
Congressional Intent ,
Constitutional Challenges ,
Due Process ,
Inter Partes Review (IPR) Proceeding ,
Patent Litigation ,
Patents ,
Petition for Writ of Certiorari ,
SCOTUS ,
Severability Doctrine
Arthrex recently filed a certiorari petition with the Supreme Court in Arthrex v. Smith & Nephew Inc. (a case related to Arthrex, Inc. v. Smith & Nephew, Inc., which has also the subject of petitions from the U.S. government...more
7/16/2020
/ Administrative Patent Judges ,
America Invents Act ,
Appeals ,
Application of Intervening Laws ,
Appointments Clause ,
Arthrex Inc v Smith & Nephew Inc ,
Constitutional Challenges ,
Effective Filing Date ,
Fifth Amendment ,
Forfeiture ,
Inter Partes Review (IPR) Proceeding ,
Petition for Writ of Certiorari ,
Retroactive Application ,
SCOTUS ,
Split of Authority ,
Takings Clause
There is little rhyme nor reason in the cases the Supreme Court decides to review. But the Court has patterns in its case selection that do (to some degree) probe what the Justices think are important questions. One pattern...more
6/25/2020
/ America Invents Act ,
Constitutional Challenges ,
Denial of Certiorari ,
Fifth Amendment ,
Inter Partes Review (IPR) Proceeding ,
Life Sciences ,
Patent Invalidity ,
Patent Trial and Appeal Board ,
Patent-Eligible Subject Matter ,
Patents ,
Post-Grant Review ,
Retroactive Application ,
SCOTUS ,
Takings Clause
The Federal Circuit affirmed a determination by the Patent Trial and Appeal Board (PTAB) that two patents owned by Celgene Corp. were invalid in Celgene Corp. v. Peter decided last week. In rendering its decision, the Court...more
On Monday, the U.S. Supreme Court issued an opinion in Iancu v. Brunetti, No. 18-302, finding that the Lanham Act prohibition against registration of scandalous or immoral trademarks violates the First Amendment of the U.S....more
6/28/2019
/ Appeals ,
Constitutional Challenges ,
First Amendment ,
Free Speech ,
Iancu v. Brunetti ,
Lanham Act ,
Reaffirmation ,
Reversal ,
Scandalous/Immoral Marks ,
SCOTUS ,
Trademark Registration ,
Trademarks ,
USPTO ,
Viewpoint Discrimination
Sherry Knowles, former chief patent counsel of GlaxoSmithKline, and Dr. Anthony Prosser, a member of her team at Knowles Intellectual Strategies LLC, have written an article recently published in The John Marshall Review of...more
Judge Pauline Newman has been concerned regarding constitutional issues raised by the U.S. Patent and Trademark Office Patent Trial and Appeal Board's implementation of inter partes review as provided by the Leahy-Smith...more
Perhaps overlooked in the widespread assessments of the Supreme Court's questioning of the parties in Oil States Energy Services, LLC. v. Greene's Energy Group, LLC is the argument before the Court in SAS Institute, Inc. v....more
12/6/2017
/ Administrative Proceedings ,
America Invents Act ,
Article III ,
Constitutional Challenges ,
Covered Business Method Proceedings ,
Inter Partes Review (IPR) Proceeding ,
Oil States Energy Services v Greene's Energy Group ,
Patents ,
Post-Grant Review ,
Private Property ,
Public Property ,
SCOTUS ,
USPTO
On November 27, 2017, the Supreme Court considered the question of whether the inter partes review process established by the U.S. Patent and Trademark Office in implementing portions of the Leahy-Smith America Invents Act or...more
11/28/2017
/ Administrative Proceedings ,
America Invents Act ,
Amicus Briefs ,
Article III ,
Certiorari ,
Constitutional Challenges ,
Covered Business Method Proceedings ,
Inter Partes Review (IPR) Proceeding ,
Oil States Energy Services v Greene's Energy Group ,
Patent Invalidity ,
Patents ,
Post-Grant Review ,
Private Property ,
Public Property ,
Right to a Jury ,
SCOTUS ,
Seventh Amendment ,
USPTO