Here’s the latest.

Federal Circuit Statistics – 2020 Edition

Reported by Jason Rantanen at Patently-O

Jason Rantanen reviewed the decisions of the Federal Circuit over the past year for trends and takeaways. Rantanen noted that the court saw a drop in cases from the USPTO and rise in cases from district courts but indicated that the court is hearing more patent cases on the whole. The court also issued more decisions and less Rule 36 judgments. However, the court’s affirmance remained about the same in 2020.

My takeaway is that the Federal Circuit judges are writing more nonprecedential opinions instead of issuing Rule 36 summary affirmances.  Hopefully this will provide some additional information for parties on the court’s reasoning when it affirms.

Gilead “Rewriting” History To Save $2.5B IP Win, Justices Told

Reported by Tiffany Hu at Law360

Gilead and Idenix Pharmaceuticals are presenting their arguments to the Supreme Court after the Federal Circuit reversed the previous decision awarding Idenix Pharmaceuticals a record 2.54 billion dollars. In its petition, Idenix questions whether genus claims can be enabled and/or meet written description requirements under the current law.

“Make no mistake. The Federal Circuit’s categorical approach … is unequivocal,” Idenix said. “This court’s intervention is needed to prevent the death of the genus claim — and to preserve the lifesaving innovations such claims foster.”

Gilead attempted to soften the Federal Circuit’s ruling by arguing that no categorical rule was created and that this particular patent fell short of the requirements already in place. The Supreme Court will discuss whether to hear the case at its January 15 conference.

For more information, see our coverage.

What to Watch in 2021: IP Stakeholders Offer Predictions and Thoughts for the New Year

Reported by IP Watchdog

Practitioners of intellectual property law spoke with IP Watchdog and gave their predictions for the state of the art in 2021. Many practitioners focused on the new administration entering office while others were hopeful for an end to the pandemic and a return to normalcy.

Notwithstanding broadly-differing views in the patent bar on the role and legitimacy of the PTAB, I believe it likely that SCOTUS will rule narrowly in Arthrex to avoid seismic upset of the judicial powers exercised by ALJs in the PTAB. I hope that the incoming Presidential administration will continue the excellent internal work on improvements to examination quality and logistics at the USPTO under Directors Iancu and Kappos; it’s vitally important to have an IP-savvy Director who appreciates the Constitutional underpinnings of IP and is committed to strong (but not unfettered) rights in valid patents, which includes internal training and structure of –and resources for– the Examiner corps. [said Trevor Copeland of Brinks, Gilson, and Lione]

The issues of: (1) constitutional status of PTAB judges, currently before the Supreme Court; (2) how much disclosure is necessary to enable and adequately describe antibody patent claims, currently before the Federal Circuit; and (3) PTAB discretion on denying IPR petition based on factors unrelated to merit are worth watching. [said Bhanu K. Sadasivan, PhD., McDermott, Will, & Emery]