Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights news related to Tuesday’s congressional hearing about what if anything Congress should do to respond to the Federal Circuit’s recent holding that Administrative Patent Judges were unconstitutionally appointed, as well as a series of blog posts concerning the U.S. Patent and Trademark Office’s ongoing proceeding to determine who invented CRISPR gene editing technology.
Scott Graham from the National Law Journal wrote an article on Tuesday’s hearing before the U.S. House of Representatives Committee on the Judiciary’s Subcommittee on Courts, Intellectual Property, and the Internet concerning Arthrex, Inc. v. Smith & Nephew, Inc. In that case, the Federal Circuit held that the Administrative Patent Judges were not appointed consistent with the requirements of the Constitution. Graham reported that the subcommittee “heard testimony that Congress can fix the problem relatively easily” but that “at least one subcommittee member raised the possibility that other perceived problems with the Patent Trial and Appeal Board . . . would also have to be addressed.”
At IPWatchDog, Eileen McDermott also commented on Tuesday’s hearing. According to McDermott, “all witnesses seemed to agree that the courts will not fix the problem soon enough to ensure the requisite certainty for U.S. patent owners and businesses, so Congress must act.” McDermott summarized three options presented to the subcommittee to solve the problem identified in Arthrex, including having the Chief Judge of the PTAB nominated by the President and confirmed by the Senate. She also, however, highlighted additional discussion at the hearing about the differing standards governing invalidation proceedings in federal court and the PTAB (clear and convincing evidence and preponderance of the evidence respectively). According to McDermott, “three of the four panelists agreed that the standards should be the same in order to mitigate the problem of patents being upheld by courts and then invalidated by the PTAB.” (You can download witness statements and watch a video of the hearing on the Judiciary’s Committee’s website.)
Over at PatentDocs, Kevin E. Noonan has been keeping track of the interference proceeding regarding CRISPR technology that remains ongoing at the U.S. Patent and Trademark Office. This proceeding seeks to answer the question of who invented CRISPR gene editing, and therefore who is entitled to patents covering it. In Noonan’s most recent post, he analyzes a recent motion emphasizing “that there are two embodiments of CRISPR.” The implication of the motion, if it is correct, might be that the parties to the proceeding may be able to obtain patents on their own embodiments of CRISPR. For some of Noonan’s prior coverage of the interference proceeding, see here and here.