News & Analysis as of July 12, 2025

Patent Applications

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The Leahy-Smith America Invents Act is a United States federal statute enacted in 2011 aimed at simplifying the U.S. patent system and allowing inventions to be brough to market sooner. The AIA makes significant changes to the patent system, including changing from a first-to-invent scheme to a first-to-file scheme, eliminating interference proceedings and developing post-grant opposition. less -

Take That Conception Out of the Oven – It’s CRISPR Even If the Cook Doesn’t Know

McDermott Will & Emery on 5/23/2025

Addressing the distinction between conception and reduction to practice and the requirement for written description in the unpredictable arts, the US Court of Appeals for the Federal Circuit explained that proof of conception...more

Federal Circuit Limits Reliance on Provisional Priority Date Under Section 102(e)(1)

Fitch, Even, Tabin & Flannery LLP on 4/10/2025

On March 24, the Federal Circuit held in In re Riggs that for a published non-provisional patent application to be prior art under pre-AIA 35 U.S.C. § 102(e)(1) based on an earlier provisional filing date, all citations to...more

The Court of Appeals for the Federal Circuit’s In Re Riggs Decision: 35 USC 102(e) Prior Art Requires Written Description Support...

Goodwin on 4/3/2025

On March 24, 2025, the US Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision titled In Re: Riggs (the Riggs decision) that vacated a decision of the Patent Trial and Appeal Board (PTAB) of the US...more

Latest Federal Court Cases: In re: Riggs

Schwabe, Williamson & Wyatt PC on 4/1/2025

In re: Riggs, Appeal No. 2022-1945 (Fed. Cir. Mar. 24, 2025) Our Case of the Week explores the power of an examiner to request a rehearing after the Board has entered a decision on an application. The case also relates to...more

Antedating Prior Art in Reissue and Reexamination: Part 1

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/10/2025

Takeaways - - Pre-AIA patents may be able to “swear behind” prior art applied in reissue and reexamination. - “Swearing behind” has limits and obtaining sufficient evidence to establish prior invention may be difficult to...more

2024 PTAB Year in Review

Wilson Sonsini Goodrich & Rosati on 1/31/2025

Wilson Sonsini Goodrich & Rosati is pleased to present our 2024 PTAB Year in Review. We begin with a review of 2024 petition filings and outcomes at the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and...more

When Is a Published Patent Application Prior Art?

Dorsey & Whitney LLP on 1/29/2025

In a precedential opinion entered on January 14, 2025, the United States Court of Appeals for the Federal Circuit affirmed a decision of the Patent Trial and Appeal Board (“PTAB”) invalidating claims of a patent on...more

Federal Circuit’s Decision Confirms That Published Patent Applications Are Prior Art In IPRs As Of Their Filing Date

WilmerHale on 1/20/2025

On January 14, 2025, the Court of Appeals for the Federal Circuit in Lynk Labs, Inc. v. Samsung Electronics Co., Ltd., No. 2023-2346 (Fed. Cir.), affirmed the Patent Trial and Appeal Board’s ruling that “a published patent...more

Historical Development of Substantial New Question contrasted with the new Section 325(d) Criteria

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 11/7/2024

Ex parte reexamination proceedings have been available for over 40 years. The reexamination statutes, Public Law 96-517 of July 1, 1981 (also known as the Bayh-Dole Act), included 35 U.S.C. § 303, which codified, in part,...more

Federal Circuit Clarifies Test for Exception to Increasingly Rare Interference Proceedings

Sheppard Mullin Richter & Hampton LLP on 9/17/2024

Speck v. Bates, No. 2023-1147 (Fed. Cir. May 23, 2024) addressed two issues, (1) whether courts should apply a one-way test or a two-way test to determine if pre-critical claims materially differ from post-critical claims,...more

Latest Federal Court Cases - December 2023

Schwabe, Williamson & Wyatt PC on 12/5/2023

Penumbra, Inc. v. Rapidpulse, Inc., IPR2021-01466, Paper 34 (P.T.A.B. March 10, 2023) In a PTAB decision that was recently designated precedential, the Board made two important decisions concerning provisional patent...more

USPTO Doubles Down on Inapplicability of Dynamic Drinkware to AIA Cases in Precedential PTAB Decision

Fenwick & West LLP on 11/21/2023

What You Need to Know The USPTO has reiterated its position that Dynamic Drinkware, LLC v. National Graphics, Inc. does not apply to patents and patent applications that fall under the America Invents Act (AIA) by designating...more

USPTO Confirms Different Frameworks for Pre-AIA and Post-AIA Prior-Art Determinations

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 11/20/2023

On November 15, 2023, Director of the United States Patent and Trademark Office (USPTO) Kathi Vidal designated as precedential the Patent Trial and Appeal Board’s (PTAB) final written decision in Penumbra, Inc. v. RapidPulse,...more

SNIPR Tech. Ltd. v. Rockefeller Univ., No. 22-1260 (Fed. Cir. July 14, 2023)

Sheppard Mullin Richter & Hampton LLP on 10/9/2023

This case addresses certain implications of the Laehy-Smith America Invests Act (AIA), namely whether patents with a filing date after March 16, 2013 (pure AIA patents) may be part of an interference proceeding under pre-AIA,...more

Study Shows the Decline of Multiple Petitions for AIA Proceedings

Jones Day on 8/15/2023

In an effort to shed light on the practice of filing multiple petitions under the America Invents Act (AIA) at the Patent Trial and Appeal Board (PTAB), the United States Patent and Trademark Office (USPTO) recently released...more

In re Theripion (Fed. Cir. 2023)

McDonnell Boehnen Hulbert & Berghoff LLP on 8/11/2023

The Patent Trial and Appeal Board (PTAB) has benefited, particularly after enactment of the Leahy-Smith America Invents Act, from the deference to its factual findings mandated by the Supreme Court's interpretation in...more

Latest Federal Court Cases - July 2023 #3

Schwabe, Williamson & Wyatt PC on 7/18/2023

SNIPR Technologies Limited v. Rockefeller University, Appeal No. 2022-1260 (Fed. Cir. July 14, 2023) Our case of the week addresses a wrinkle in the law concerning disputes between parties that filed patent applications...more

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2022 Decisions

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/8/2023

As part of the recovery from the global COVID-19 pandemic, the U.S. Court of Appeals for the Federal Circuit took steps to return to normal operations. It began requiring live oral arguments in August 2022 and, by November,...more

Latest Federal Court Cases - January 2023

Schwabe, Williamson & Wyatt PC on 1/9/2023

Dionex Softron GmbH v. Agilent Techs., Inc., Appeal No. 21-2372 (Fed. Cir. Jan. 6, 2023) - This week’s Case of the Week, the only precedential patent opinion issued by the Federal Circuit this week, focused primarily on...more

Last Week In The Federal Circuit (May 2-6): Experimenting With The On-Sale Bar

Morrison & Foerster LLP - Federal Circuitry on 5/10/2022

With another busy week of arguments last week, the Federal Circuit took a break from issuing precedential decisions. But it still pushed out several non-precedential decisions along with some quick affirmances without...more

2021 PTAB Year in Review: Analysis & Trends: Case Studies and Trends at the PTAB Involving 35 U.S.C. § 112

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/15/2022

Over the last 20-plus years, US Court of Appeals for the Federal Circuit cases concerning written description and enablement have become a hot-button issue in the chemical and life sciences practices. The year 2021 was no...more

2021 PTAB Year in Review: Analysis & Trends: Discretionary Denial under § 325(d): Strategic Implications of the PTAB’s Advanced...

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/11/2022

The USPTO Patent Trial and Appeal Board (PTAB) has increasingly used its discretionary denial authority in recent years. Although the PTAB’s discretion under 35 U.S.C. § 314(a) and Fintiv grabbed many headlines in 2021, the...more

2021 PTAB Year in Review: Analysis & Trends: Fintiv Continues To Take Center Stage: The Effect of Parallel Litigation at the PTAB...

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/10/2022

In 2021, Fintiv continued to be one of the hottest and most controversial issues facing the patent bar. The USPTO Patent Trial and Appeal Board’s (PTAB) precedential Fintiv decision enumerated factors that the PTAB applies...more

2021 PTAB Year in Review: Analysis & Trends

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 3/7/2022

[co-author: Jamie Dohopolski] Love it or hate it, ignore the USPTO Patent Trial and Appeal Board (PTAB) at your peril. The introduction of the PTAB as part of the America Invents Act over ten years ago has forever changed...more

Federal Circuit Appeals from the PTAB and ITC: Summaries of Key 2021 Decisions

Sterne, Kessler, Goldstein & Fox P.L.L.C. on 2/9/2022

[co-author: Jamie Dohopolski] Last year, the continued global COVID-19 pandemic forced American courts to largely continue the procedures set in place in 2020. The U.S. Court of Appeals for the Federal Circuit was no...more

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