Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- an article suggesting that “[t]wo decisions issued by the U.S. Court of Appeals for the Federal Circuit within the past couple of months have brought” the difference between patent and trademark preemptive infringement remedies “into sharper focus”;
- a blog post discussing how “[p]atent filings are now mined not only by competitors, but by governments, intelligence agencies, sovereign investors, and increasingly sophisticated artificial intelligence systems capable of analyzing millions of documents simultaneously”;
- an article highlighting how “[t]wo important patent prosecution data points that are in tension: [t]he vast majority of patent applications are initially rejected by the patent examiner; and [t]he vast majority of patent applications eventually issue as a patent”; and
- an article arguing that, “over the past several months, the Trump administration has eroded” the Merit System Protection Board’s “authority in a series of steps that some former officials say have left the board a shell of the institution it once was.”
Jason Hoffman and Robert Hails penned an article for Law 360 suggesting that “[t]wo decisions issued by the U.S. Court of Appeals for the Federal Circuit within the past couple of months have brought” the difference between patent and trademark preemptive infringement remedies “into sharper focus.” The authors contend the first decision “confirmed that likely patent validity and infringement do not create a presumption of irreparable harm, even when the patent owner seeks only preliminary relief.” According to the authors, the “second demonstrated the consequences of that rule, rejecting a claim of irreparable price erosion because the patent owner had not connected the accused conduct to the asserted injury.” The authors note how, by contrast, a “trademark owner receives a rebuttable presumption of irreparable harm after showing likely infringement.” The article discusses Socket Solutions, LLC v. Import Global, LLC and Ridge Corp. v. Kirk NationaLease Co.
Paul Keller, Anne Li, and Andrew Freyer authored a blog post for IPWatchdog discussing how “[p]atent filings are now mined not only by competitors, but by governments, intelligence agencies, sovereign investors, and increasingly sophisticated artificial intelligence systems capable of analyzing millions of documents simultaneously.” The authors suggest that, as a result, “patent databases have become one of the world’s richest sources of open-source technological intelligence.” According to the authors, moreover, a “question is whether advances in AI have fundamentally changed the strategic value” of patent disclosures.
Dennis Crouch published a blog post for PatentlyO highlighting how “[t]wo important patent prosecution data points . . . are in tension: [t]he vast majority of patent applications are initially rejected by the patent examiner; and [t]he vast majority of patent applications eventually issue as a patent.” Crouch notes how “[a]bout 14% of first actions on the merits . . . are notices of allowance.” According to Crouch, “in about 40% of cases, the first offer (the initial claim set) is at least partially accepted.”
Ian Kullgren wrote an article for Bloomberg Law arguing that, “over the past several months, the Trump administration has eroded” the Merit System Protection Board’s “authority in a series of steps that some former officials say have left the board a shell of the institution it once was.” According to Kullgren, in “March, the Republican-controlled MSPB endorsed the administration’s view that it can fire immigration judges housed at the DOJ, saying it lacked jurisdiction to block the attorney general’s decision.” Kullgren notes the “case is currently before the full U.S. Court of Appeals for the Federal Circuit.” For more, see Jackler v. Department of Justice.