Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article suggesting that “[w]hether machine learning is patent eligible depends upon whether you ask the U.S. Court of Appeals for the Federal Circuit or the U.S. Patent and Trademark Office”;
- a blog post discussing how “the majority of Schedule A cases ‘involve allegations of trademark or design patent infringement, though some allege violations of copyrights or of utility patents”;
- a blog post highlighting highlighting how, “[i]n the space of a few months, the U.S. Court of Appeals for the Federal Circuit and the U.S. District Court for the District of Massachusetts delivered two decisions that, read together, change how patent applicants and their counsel should approach the deceptively simple question of who invented what”; and
- a blog post covering how the USPTO’s “‘settled expectations’ policy” for denying petitions for inter partes review “now has a second challenger at the Supreme Court.”
Michael Kiklis penned an article for Law360 suggesting that “[w]hether machine learning is patent eligible depends upon whether you ask the U.S. Court of Appeals for the Federal Circuit or the U.S. Patent and Trademark Office.” Kiklis notes the Federal Circuit “has now found every machine learning patent that came before it ineligible.” According to Kiklis, the USPTO, “on the other hand, issued a precedential decision finding a machine learning model patent eligible: the Sept. 26 decision in Ex parte Desjardins.” Kiklis argues the USPTO “director has indicated a clear path forward for the patent eligibility of such inventions.”
Thomas Cotter authored a blog post for Comparative Patent Remedies discussing how “the majority of Schedule A cases ‘involve allegations of trademark or design patent infringement, though some allege violations of copyrights or of utility patents.” Cotter explains how “[t]he typical case involves an owner who files a complaint and a motion for an ex parte temporary restraining order, often under seal, against multiple, often foreign, defendants, who are identified in an accompanying list, often referred to as ‘Schedule A.'” According to Cotter, Judge Stoll dissented from a recent Federal Circuit decision in a Schedule A case, suggesting the court “apply the three-way test ‘comparing the accused product, the patented design, and the prior art.'” For more, see the opinion Shenzhen Jisu Tech. Co. v. The Entities and Individuals Identified in Annex A.
Alexandros Nikolaidis published a blog post for IPWatchdog highlighting how, “[i]n the space of a few months, the U.S. Court of Appeals for the Federal Circuit and the U.S. District Court for the District of Massachusetts delivered two decisions that, read together, change how patent applicants and their counsel should approach the deceptively simple question of who invented what.” Nikolaidis suggests “[w]hat is new is the two-track vulnerability the cases now define.” According to Nikolaidis, because the Federal Circuit’s “invalidity holding operates independently of intent” while the district court’s “unenforceability holding operates on intent, they cover different fact patterns without overlapping — and applicants must now defend against both.” For more information on the Federal Circuit’s analysis, see the court’s opinion in Fortress Iron, LP v. Digger Specialties, Inc.
Dennis Crouch wrote a blog post for PatentlyO covering how the USPTO’s “‘settled expectations’ policy” for denying petitions for inter partes review “now has a second challenger at the Supreme Court.” According to Crouch, “[u]nder the Federal Circuit’s current framework,” the Supreme Court’s “reservation” for reviewing “agency action exceeding statutory limits describes a form of review that no court can actually conduct.” You can find the Federal Circuit’s decision in in the relevant case, In re Kahoot! As, here. As of this writing, however, other than an application for an extension of time, no petition has been filed.