Here’s the latest.

Federal Circuit Judge Newman Calls for Overhaul of Patent Law

Reported by Perry Cooper at Bloomberg Law

Perry Cooper recaps Judge Newman’s comments at a virtual intellectual property conference hosted by the University of Illinois at Chicago Law School. Judge Newman opined on the need to revisit patent law in light of modern technology.

“New technology needs a new look and a new understanding,” Newman of the U.S. Court of Appeals for the Federal Circuit said at a virtual intellectual property conference hosted by the University of Illinois at Chicago’s law school. “We need to rethink patent law from scratch.”

Judge Newman called on lawmakers to pass new laws as the courts can only do so much when reviewing the cases before them. While the process will not be fast, Judge Newman called for an open-minded approach to writing new laws governing patents.

Federal Circuit Will Not Second-Guess IPR Institution Denials

Reported by Jiaxiao Zhang at JD Supra

The Federal Circuit reaffirmed its lack of jurisdiction to review denials by the Patent Trial and Appeal Board to institute inter partes reviews through four orders issued the past week. Jiaxiao Zhang summarizes the orders and the governing law utilized by the Federal Circuit in its orders. The Federal Circuit cited the discretion of the PTAB and the lack of a mandate to institute review as held by the Supreme Court in Cuozzo Speed Technologies v. Lee.

As further support, the Court pointed to its statement in St. Regis Mohawk Tribe v. Mylan Pharms. Inc. that § 314(d) indicates that when “the Director decides not to institute, for whatever reason, there is no review,” and in St. Jude Medical, Cardiology Division, Inc. v. Volcano Corp. that the Court’s review authority under § 1295(a)(4)(A) does not extend to appeals from non-institution decisions.

Two similar appeals are still before the Federal Circuit, but the Federal Circuit has already signaled a similar outcome as it has issued orders to show cause why the appeals should not be dismissed for lack of jurisdiction.

Federal Circuit Grants Apple Petition for Writ of Mandamus to Transfer Uniloc Suit

Reported by IPWatchdog

Judge Alan Albright must transfer another case after the Federal Circuit issued a writ of mandamus in In Re Apple Inc. IP Watchdog summarizes the opinion where the Federal Circuit ruled that the Western District of Texas abused its discretion in originally denying Apple’s motion to transfer. In doing so, the Federal Circuit also held that Apple did not waive certain arguments by not raising them in the petition because the case continued to proceed before Apple filed its reply brief. The Federal Circuit determined that the district court weighed its own ability to hear patent cases quickly too heavily in favor of retaining the case as those steps were taken after Apple moved for transfer.

Considering this and other district court “errors,” the CAFC concluded that there was nothing “relevant to this factor weighing against transfer” and that the factor weighed, at least slightly, in favor of transfer. For these reasons and more, the CAFC held that “the district court’s errors resulted in a patently erroneous result” and granted Apple’s petition for mandamus.

Writing for the dissent, Judge Newman argued the majority opinion reviewed the case under a de novo standard rather than the proper “clear abuse of discretion” standard. Moreover, Judge Newman stated that the petition should have been denied under either standard.

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