Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article discussing how the “Supreme Court weighed oral arguments” last week “in a case over how a century-old law is applied to decide Department of Veterans Affairs benefits when there is an equal balance of evidence to support or deny a disability claim”;
- an article that provides “an overview of the current state” of obviousness-type double patenting in light of recent Federal Circuit decisions;
- an article reporting how “[t]he deadline for comments on the U.S. Patent and Trademark Office’s (USPTO) updated subject matter eligibility guidance” has passed and how the majority of submissions “overwhelmingly call for more detail in the guidance in order to avoid undue restrictions on patentability of critical artificial intelligence (AI) technologies”; and
- a blog post discussing a recent Federal Circuit decision that addressed the argument that “claim construction is improper at the Rule 12(b)(6) stage.”
Linda F. Hersey posted an article with Stars and Stripes discussing how the “Supreme Court weighed oral arguments” last week “in a case over how a century-old law is applied to decide Department of Veterans Affairs benefits when there is an equal balance of evidence to support or deny a disability claim.” Hersey highlighted how, in Bufkin v. McDonough, Justice Barrett “asked why the court should consider the benefit-of-doubt rule for Thornton, when he was granted a 100% VA disability rating and has been determined to be unemployable.” As noted by Hersey, the Court should decide the case by “next summer.” For more information, check out our case page.
Fabian Koenigbauer wrote an article for Law360 that provides “an overview of the current state” of obviousness-type double patenting in light of recent Federal Circuit decisions. According to Koenigbauer, “[e]xcept for divisional applications, any application after an original filing with overlapping claims raises the potential for ODP.” Koenigbauer suggests that, “while ODP usually is not fatal, because of its ability to reduce patent term and because patent term is unknown until grant, patentees may want to take steps to avoid being in a situation where ODP can arise.”
Eileen McDermott contributed an article for IP Watchdog reporting on how “[t]he deadline for comments on the U.S. Patent and Trademark Office’s (USPTO) updated subject matter eligibility guidance” has passed and how the majority of submissions “overwhelmingly call for more detail in the guidance in order to avoid undue restrictions on patentability of critical artificial intelligence (AI) technologies.” McDermott explains how “[m]ajor IP organizations, including the American Intellectual Property Law Association (AIPLA), the Council for Innovation Promotion (C4IP), the Intellectual Property Owners Association (IPO), the Pharmaceutical Research and Manufacturers of America (PhRMA) and the Association of University Technology Managers, Inc. (AUTM), have now weighed in.” She reports how many of them “seem concerned that . . . update[s] to the Office’s Subject Matter Eligibility (SME) Guidance includes potentially conflicting examples and a lack of detailed explanation.”
Dennis Crouch authored a blog post for PatentlyO discussing a recent Federal Circuit decision that addressed the argument that “claim construction is improper at the Rule 12(b)(6) stage.” As explained by Crouch, in UTTO, Inc. v. Metrotech Corp., the Federal Circuit held that “there is no rigid rule against claim construction during motions to dismiss” and, moreover, that “claim construction based on intrinsic evidence alone is ‘not different in kind from the interpretation of other legal standards, which is proper and routine in ruling on a motion under Rule 12(b)(6).’” Crouch suggests that the court’s approach “aligns with the court’s precedents in the context of § 101 eligibility challenges” and rejects the approach of some lower courts, which had found “that claim construction is inappropriate at the motion to dismiss stage.”