Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights:
- an article analyzing “four Federal Circuit decisions reversing or vacating the underlying rulings” in patent cases and “the lessons learned from those decisions”; and
- a webinar discussing whether the patent eligibility doctrine is “in need of reform.”
Denise De Mory and Li Guo wrote an article for Law360 analyzing “four Federal Circuit decisions reversing or vacating the underlying rulings” in patent cases and “the lessons learned from those decisions.” Regarding Janssen Pharmaceuticals Inc. v. Teva Pharmaceuticals USA Inc., the authors explain that, in an obviousness analysis, “features not claimed do not have to be disclosed.” With respect to Fullview Inc. v. Polycom Inc., the authors suggest the obvious-to-try rationale and common sense “can supply a missing limitation.” Based on Luv n’ Care Ltd. v. Laurain, the authors warn that “[m]isrepresenting a prior art reference before the USPTO can result in inequitable conduct.” And, regarding Sumitomo Pharma Co. v. Vidal, the authors suggest “a theoretical possibility about a past infringement and damages of an expired patent is not enough to prevent mootness.”
The Federalist Society hosted a webinar to discuss whether the patent eligibility doctrine is “in need of reform.” One of the panelists, Professor Kristen Osanga, noted that the patent eligibility standard is “causing clients to be confused. It’s causing patent attorneys to be confused. It’s causing lower courts to be confused.” She suggested these problems must be fixed legislatively, and she cited the “Patent Eligibility Restoration Act” as a “great first start” to enacting reform. Former Federal Circuit Chief Judge Randall Rader, another panelist, agreed. He suggested that the lesson to learn is that “when you stay stray from the statute, and 200 years of very substantial and workable application of that law, and substitute your own ideas about what might be exceptions, ideas without standards at all, you’re left with . . . confusion and chaos, which needs then legislative correction.”