Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article noting how “[s]everal U.S. senators expressed strong support at a hearing Tuesday for a bill aimed at expanding which inventions are eligible for patents, while others appeared to have reservations about the potential effect of the proposed changes on healthcare costs”;
- a blog post discussing how the Federal Circuit “reaffirmed its understanding that so-called ‘book of wisdom’ evidence can be used in estimating the hypothetical bargain the parties would have negotiated as of the date of infringement, but not to alter the terms of the bargain they would have struck in view of ex post evidence”;
- a blog post highlighting how a “unanimous opinion authored by Judge Hughes affirmed” fixing “the government’s liability for infringing . . . through a hypothetical negotiation rather than simply using the rates in the parties’ prior license”; and
- a blog post suggesting risk to patent rights created using artificial intelligence “almost never comes from the AI model’s involvement.”
Ryan Davis wrote an article for Law 360 noting how “[s]everal U.S. senators expressed strong support at a hearing Tuesday for a bill aimed at expanding which inventions are eligible for patents, while others appeared to have reservations about the potential effect of the proposed changes on healthcare costs.” Davis notes the “hearing was the first consideration of the issue of patent eligibility by the full Senate Judiciary Committee, following years of discussion by the panel’s intellectual property subcommittee.” According to Davis,”Sen. Thom Tillis, R-N.C., the chair of IP subcommittee, said the Patent Eligibility Restoration Act he first proposed in 2022 would undo U.S. Supreme Court rulings over the last 15 years that he said have put too many restrictions on what inventions can be patented.”
Thomas Cotter penned a blog post for Comparative Patent Remedies discussing how the Federal Circuit “reaffirmed its understanding that so-called ‘book of wisdom’ evidence can be used in estimating the hypothetical bargain the parties would have negotiated as of the date of infringement, but not to alter the terms of the bargain they would have struck in view of ex post evidence.” Cotter suggests the “distinction is subtle, but this holding is consistent with the view the Federal Circuit has expressed in other cases.” For more, see the court’s opinion in 4DD Holdings, LLC v. United States.
Dennis Crouch published a blog post on PatentlyO highlighting how a “unanimous opinion authored by Judge Hughes affirmed” fixing “the government’s liability for infringing . . . through a hypothetical negotiation rather than simply using the rates in the parties’ prior license.” Crouch notes “the court still vacated the $12.7 million award based upon overuse of what courts call the ‘book of wisdom’ and the lack of enhanced statutory damages available for infringement actions against the United States.” For more, again see the court’s opinion in 4DD Holdings, LLC v. United States.
Lana Akopyan authored a blog post for IP Watchdog suggesting risk to patent rights created using artificial intelligence “almost never comes from the AI model’s involvement.” Akopyan argues the risk “comes from whether the information stayed confidential, and that turns on the channel it traveled through: the product and tier, the provider’s terms in force, the retention and training settings, who may see the data, where the output goes, the jurisdiction, and now the specific model.”