Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article discussing last week’s Senate markup hearing where lawmakers announced that they plan to “delay consideration of both the Patent Eligibility Restoration Act (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act)”;
- an article reporting how U.S. Patent and Trademark Office Director Kathi Vidal announced that “she will leave the office in mid-December ahead of the incoming administration of Republican President-Elect Donald Trump”;
- a blog post highlighting an upcoming en banc review by the Federal Circuit that will “address fundamental questions about the reliability standards for expert damages testimony in patent cases”; and
- an article examining the law surrounding patent marking after a recent Federal Circuit decision “seemingly revived a private actor’s right to bring a cause of action for false marking via the unfair competition and false advertising provisions of Section 43(a) of the Lanham Act.”
Eileen McDermott wrote an article for IPWatchdog discussing last week’s Senate markup hearing where lawmakers announced that they plan to “delay consideration of both the Patent Eligibility Restoration Act (PERA) and the Promoting and Respecting Economically Vital American Innovation Leadership Act (PREVAIL Act).” According to McDermott, lawmakers have “alluded to forces at work that ‘may be trying to undermine progress of either PERA or PREVAIL.'” McDermott explained that, while the other two bills have been delayed, the IDEA Act was “favorably reported [to the floor] by a vote of 15 to 6.”
Blake Brittain wrote an article for Reuters reporting how U.S. Patent and Trademark Office Director Kathi Vidal announced that “she will leave the office in mid-December ahead of the incoming administration of Republican President-Elect Donald Trump.” Brittain explained how on November 12 Vidal posted a letter on LinkedIn explaining that “she would be ‘moving back into the private sector’ after her last day in the second week of December, and that deputy director Derrick Brent would take over her position.”
Dennis Crouch authored a blog post for Patently-O highlighting an upcoming en banc review by the Federal Circuit that will “address fundamental questions about the reliability standards for expert damages testimony in patent cases.” According to Crouch, EcoFactor, Inc. v. Google LLC “highlights growing tensions between robust judicial gatekeeping under Federal Rule of Evidence 702 and the Constitutional right to a jury determination of all facts at issue.” He emphasized that the case “presents a critical opportunity for the Federal Circuit to clarify when damages theories ‘cross the line’ from permissible approximation to unreliable speculation.”
Jeffrey Ratinoff contributed an article for Law360 examining the law surrounding patent marking after a recent Federal Circuit decision “seemingly revived a private actor’s right to bring a cause of action for false marking via the unfair competition and false advertising provisions of Section 43(a) of the Lanham Act.” Ratinoff explained how, in Crocs, Inc. v. Effervescent, Inc., the Federal Circuit found that “a cause of action arises from Section 43(a)(1)(B) where a party falsely claims that it possesses a patent on a product feature and advertises that product feature in a manner that causes consumers to be misled about the nature, characteristics, or qualities of its product.'”