Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today we highlight:
- a piece suggesting recent decisions by Acting U.S. Patent and Trademark Office Director Coke Morgan Stewart “provide helpful guidance” on how the Patent Trial and Appeal Board will interpret and apply new discretionary denial procedures;
- a post criticizing Stewart for having “inundated patent litigators in May and June with dozens of rulings altering the landscape of discretionary denials at the Patent Trial and Appeal Board”;
- an article discussing how “Congress is considering a bill that would effectively overturn” Supreme Court decisions dealing with patent protections, thus “[empowering] US innovators to compete with their rivals in China and Europe on a level playing field”; and
- a blog post indicating “[a]n important recent development in pharmaceutical patent law is the Federal Circuit’s embrace of . . . infringement by drug label.”
Catherine Nyarady and Crystal Parker penned a piece for Law.com suggesting recent decisions by U.S. Patent and Trademark Office Acting Director Coke Morgan Stewart “provide helpful guidance” on how the Patent Trial and Appeal Board will interpret and apply new discretionary denial procedures. According to Nyarady and Parker, “decisions to date indicate that considerations of PTAB efficiency, such as timing of decisions, likelihood of a stay, investment of the parties in parallel proceedings, and the timeliness of the challenge are critical to the discretionary analysis.”
Dani Kass wrote a post for Law360 criticizing Stewart for having “inundated patent litigators in May and June with dozens of rulings altering the landscape of discretionary denials at the Patent Trial and Appeal Board.” According to Kass, “with each new batch of decisions, the acting director has been providing bits and pieces of guidance on how to pursue or dodge inter partes and post-grant reviews.” Kass wrote that these decisions “feature at most a few paragraphs on the analysis and provide no detail on the broader case,” suggesting this leaves “attorneys to try and piece together a broader policy.”
Former Federal Circuit Judges Paul Michel and Kathleen O’Malley authored an article for Bloomberg Law discussing how “Congress is considering a bill that would effectively overturn” various Supreme Court decisions dealing with patent eligibility. According to Michel and O’Malley, the bill would empower “US innovators to compete with their rivals in China and Europe on a level playing field.” Michel and O’Malley suggest the “bipartisan Patent Eligibility Restoration Act” would “reinvigorate tech investment and deliver a much-needed boost to the US’ global competitiveness” by “restoring patent eligibility for categories of inventions that courts have wrongly declared ineligible.”
Dennis Crouch wrote a blog post for PatentlyO indicating “[a]n important recent development in pharmaceutical patent law is the Federal Circuit’s embrace of . . . infringement by drug label.” Crouch explains that, “[i]n several decisions since 2021, the court has approved claims of induced infringement against generic drug companies simply because (i) the generic’s product label could be read to contain a patented method-of-use and, in some cases, (ii) the generic stated that its product is an FDA-equivalent to the brand’s.” Crouch suggests “[t]here are several problems” with this approach.