Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- a blog post suggesting a recent Federal Circuit “decision is important because it overturns USPTO policy implementing” the America Invents Act and, “ultimately, . . . gives patent owners a new way to knock out references that reach back to a priority filing date”;
- a blog post contemplating how the “absence of a presumption of irreparable harm” in a recent Federal Circuit decision “remains a fraught issue”;
- a blog post reporting that “[f]ormer Deputy Director of the U.S. Patent and Trademark Office, Coke Morgan Stewart, has joined the Council for Innovation Promotion as President and CEO;” and
- an article arguing that President “Trump’s resistance to judicial review goes beyond criticizing the reasoning or conclusions of judges who rule against him.”
Dennis Crouch penned a blog post for PatentlyO suggesting a recent Federal Circuit “decision is important because it overturns USPTO policy implementing” the America Invents Act and, “ultimately, . . . gives patent owners a new way to knock out references that reach back to a priority filing date.” Couch notes how, “[i]n our first-to-file system, the question often boils down to whether the patent at issue was effectively filed before the competing patent application.” According to Crouch, although the recent decision “centers on priority to U.S. provisional patent applications, it should also apply to foreign filings.” Check out the relevant opinion in Dental Monitoring SAS v. Align Technology, Inc. for more information.
Thomas Cotter published a blog post for Comparative Patent Remedies contemplating how the “absence of a presumption of irreparable harm” in a recent Federal Circuit decision “remains a fraught issue.” Cotter suggests that, “while the eBay opinion is not a paragon of legal reasoning, the eBay standard remains a necessary tool, at least in U.S. practice, for reducing the harms resulting from patent holdup.” For more on the Federal Circuit decision in question, see Socket Solutions, LLC v. Import Global, LLC.
Eileen McDermott and Steve Brachmann wrote a blog post for IPWatchdog reporting that “[f]ormer Deputy Director of the U.S. Patent and Trademark Office, Coke Morgan Stewart, has joined the Council for Innovation Promotion as President and CEO.” The authors note how, “[w]hile serving as Acting USPTO Director, Stewart helped establish settled expectations doctrine, which has become a critical aspect of discretionary denial decisions at the Patent Trial and Appeal Board.”
Jacob Sullum authored an article for Reason Magazine arguing that President “Trump’s resistance to judicial review goes beyond criticizing the reasoning or conclusions of judges who rule against him.” Sullum suggests that “Trump’s response to the Federal Circuit’s decision” to reject Trump’s claim that Congress completely delegated tariff authority to the President “reflected his . . . assumption that judges who rule against him are motivated by political bias.” Sullum does not agree with that assumption, noting “the Federal Circuit had upheld a unanimous decision by three CIT judges, including one appointed by President Ronald Reagan and one appointed by Trump himself.”