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A Patent Crisis—Supreme Court Can Help America Compete Again

Written by Former Chief Judge of the Federal Circuit Randall R. Rader at Bloomberg Law

Former Chief Judge of the Federal Circuit, Randall Rader, advocates for a stronger patent system in order to increase the competitiveness of the United States in the international economy. He argues that the Supreme Court’s decision in Alice Corp. v. CLS Bank has weakened the ability of inventors to obtain patents in certain fields. The Federal Circuit’s use of the doctrine has resulted in many patents being invalidated for abstractness. Judge Rader asserts that because Congress has not yet taken substantive action regarding this obstacle, the Supreme Court does have a chance to resolve the issue by addressing the matter on appeal in Chamberlain Group v. Techtronic Industries.

Restoring a strong patent system will benefit American consumers, support robust investments in research and development, and help level the playing field for U.S. industries. With Congress stalled and our most innovative companies losing ground to foreign competition, let’s hope our judges return to the inspired words of our Constitution and the Patent Act, instead of their own abstractness.

Federal Circuit Shoots Down Apple Bid to Strike Certain Voip-Pal Claims Upheld by PTAB

Reported by Eileen McDermott at IP Watchdog

Eileen McDermott reviews a recent decision issued by the Federal Circuit affirming the PTAB’s finding of validity of Voip-Pal’s patent and upholdiing the sanctions granted against Apple in Apple Inc. v. Voip-Pail.com, Inc. Apple argued that the Federal Circuit had mooted the appeal due to similar claims within the same patent being affirmed as invalid by the Federal Circuit in a different case. While the Federal Circuit vacated the PTAB’s ruling for the similar claims, the dissimilar claims were not rendered moot. Apple also contended that the sanction created by the PTAB violated the Administrative Procedures Act as it was not specifically enumerated in the statute.

“Section 42.12(b) uses the term ‘include,” which signifies a non-exhaustive list of sanctions,” wrote the CAFC. And as to Apple’s claim that the PTAB had abused its discretion by not ordering a sanction of judgment in Apple’s favor, the Court cited Abrutyn v. Giovanniello in saying: “[A] sanction which may sound the death knell for important [patent] rights and interests . . . should be used as a weapon of last, rather than first, resort.”

For more information, see our coverage.

IP at the Supreme Court: 2 Big Cases and a Lot of Long Shots

Reported by Scott Graham at The National Law Journal

The Supreme Court will soon hear arguments in Google LLC v. Oracle America, Inc., and will very likely grant certiorari to a case concerning an appointments clause challenge to the PTAB. Scott Graham highlights these cases and other potential cases that the Supreme Court may take up in the coming terms. The Supreme Court will determine the proper confines of copyright law and how fair use of copyrighted material can be determined by judges and juries. Graham notes that the Supreme Court will likely hear United States v. Arthrex, Inc. to determine the future of the appointments to the PTAB.

With the Federal Circuit having declared a law unconstitutional and the federal government petitioning for review, the issue presents “a paradigmatic case” for certiorari, Weil, Gotshal & Manges partner Zachary Tripp, a former assistant to the solicitor general, said in July.

Graham also predicts that cases on patent eligibility and broad genus claims in pharmaceutical patents are likely issues that the Supreme Court may review on cases appealed from the Federal Circuit. However, the Supreme Court would have to be willing to work its way into the finer points of intellectual property law to review these cases.