Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article suggesting the timing of the Supreme Court ruling on President Trump’s tariff case might be related to the idea “SCOTUS would presumably want to give guidance to lower courts on how they should rule on these suits”;
- a blog post discussing a recent Federal Circuit dissenting opinion that “offers an attack on how the Federal Circuit has been applying the ‘plainly dissimilar’ standard for design patent infringement”;
- an article indicating that, “[o]ver the past few months, the U.S. Patent and Trademark Office has treated artificial intelligence and machine learning inventions more favorably under Section 101 of the U.S. Patent Act than they have been in years”; and
- an article suggesting inter partes reviews “are essentially unavailable for the majority of patents now being asserted in litigation.”
Dean Baker authored an article for the Center for Economic and Policy Research suggesting the timing of the Supreme Court ruling on President Trump’s tariff case might be related to the idea “SCOTUS would presumably want to give guidance to lower courts on how they should rule on these suits.” Baker believes “[i]t is a virtual certainty that immediately after the Court issues a ruling striking down these tariffs, Trump will rush back with new tariffs based on different legislative grants of authority. . . [and] these tariffs will also be the subject of lawsuits.” For more information on the case, check out the case page in Trump v. V.O.S. Selections, Inc.
Dennis Crouch penned a blog post for PatentlyO discussing a dissenting opinion in a recent Federal Circuit case that “offers an attack on how the Federal Circuit has been applying the ‘plainly dissimilar’ standard for design patent infringement.” Crouch points to a dissent by Chief Judge Moore arguing that the court “has fundamentally shifted the infringement analysis away from the Supreme Court’s ‘substantially similar’ test.” Crouch explains how Chief Judge Moore believes “the ‘plainly dissimilar’ framing has evolved from a narrow exception for clear-cut cases into a primary analytical framework that systematically favors summary judgment of non-infringement for defendants.” For more details, check out the relevant opinion in Range of Motion Products, LLC v. Armaid Company Inc.
Matthew Carey authored an article for Bloomberg Law indicating that, “[o]ver the past few months, the U.S. Patent and Trademark Office has treated artificial intelligence and machine learning inventions more favorably under Section 101 of the U.S. Patent Act than they have been in years.” Carey argues the turning point was when the USPTO “vacated a Section 101 rejection” and then “took the additional step of designating” the replaced decision as precedential and integrating it “into the Manual of Patent Examining Procedure.”
Steven Rizzi and Bobby Burns authored an article for Law360 suggesting inter partes reviews “are essentially unavailable for the majority of patents now being asserted in litigation.” According to the authors, “[a]s a result, many challenges that likely would have been made through IPR petitions are instead being brought as requests for ex parte reexamination by the accused infringer or its agent.” The authors highlight that “[i]t also remains to be seen whether the USPTO director will take any action intended to reduce the number of EPR requests.”