Today we highlight four recent papers related to the Federal Circuit. The first, co-authored by retired Federal Circuit Chief Judge Paul Michel, focuses on the transformation of the U.S. patent system over the past fifteen years. The second analyzes the justiciability of litigation upon the invalidation of patents. The third reviews the Federal Circuit’s patent eligibility decisions in the seven years following the Supreme Court’s decision in Alice v. CLS Bank. The fourth examines the availability of Federal Circuit decisions. Here are more details on these papers.
Justices Craft Their Own Remedy for Violation of Constitution’s Appointments Clause – George Quillin and Jeanne Gills post to SCOTUSblog about the Supreme Court’s decision this week in United States v. Arthrex.
Yu v. Apple Settles It: The CAFC is Suffering from a Prolonged Version of Alice in Wonderland Syndrome – Gene Quinn reports on IPWatchDog that “the Federal Circuit seems to be dealing with an exceptionally prolonged and worsening version of Alice in Wonderland syndrome.”
Amarin Rebuffed in High Court Bid to Revive Vascepa Patents – Susan Decker and Greg Stohr report for Bloomberg that the Supreme Court “declined to consider a bid by Amarin Corp. to revive six patents on the heart medicine Vascepa.”
Supreme Court Rebuffs Cost-Sharing Reduction Payment Appeal; $20 Million For State-Based Marketplaces – On HealthAffairs.org, Katie Keith notes “that two August decisions by a three-judge panel of the Court of Appeals for the Federal Circuit will stand.”
- Consensus-Building Judge Taking the Reins at Federal Circuit – According to Perry Cooper at BloombergLaw.com, as the new Chief of the Federal Circuit, Judge Moore could try to bring the court together on sticky issues.
- Court Reverses Ruling Critics Said Left Feds Vulnerable to Retaliation, Citing ‘Magnitude’ of Errors – Eric Katz at GovernmentExecutive.com commented on a recent employment law decision by the Federal Circuit reversing the Merit Systems Protection Board.
- Australian Company Loses Ugg Trademark Battle – Yan Zhuang from the New York Times reported on a Federal Circuit trademark decision that reportedly “hits a nerve for Australians, who consider [Ugg] footwear a national, if unfashionable, symbol.”
Here is the latest.
- Good News for Patentees: Bipartisan NSCAI Invokes National Security in Calling for Legislation to Clarify Patent Eligibility – A recent report released by a bipartisan congressionally-established commission lends powerful support to Section 101 reform initiatives.
- Dish Rejected in Bid to Revive Data Compression Patent Challenge – The Federal Circuit refused to jump-start a patent challenge after the Patent Trial and Appeal Board found that the challenge was time-barred.
- Method for Determining Haplotype Phase Found Subject Matter Ineligible – Applying the Alice framework, the Federal Circuit emphasized that a mathematical or scientific algorithm, without more innovation or improvement, is patent ineligible.
Here’s the latest.
- What’s Eligible for a Patent? The Section 101 Muddle Explained – Perry Cooper describes the uncertainty and confusion surrounding patent eligibility under Section 101 and highlights the Supreme Court’s upcoming opportunities to provide clarity after Alice.
- Fed. Circ. Agrees Fax Machine Patents Are Indefinite – The Federal Circuit found that two terms in the patent claim language failed to provide reasonable certainty of the terms’ scope and thus the patents were deemed invalid for indefiniteness.
- Afghan’s Land Takings Claim Against U.S. Army Rejected on Appeal – The Federal Circuit affirmed the U.S. Court of Federal Claims’ dismissal of a suit after an Afghan citizen failed to prove ownership of a property that he claimed the U.S. Army unjustly took from him when the U.S. Army constructed Combat Outpost Millet in 2010.
Here’s the latest.
- Federal Circuit to district court: Show Us Your Work on Section 101 – The Federal Circuit reversed a decision from the District of Delaware for a lack of reasoning supporting the invalidation of patent claims.
- No Pause on American Axle Case for Coming Supreme Court Petition – American Axle did not persuade the Federal Circuit to stay its case in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, but Judge Moore took the opportunity to ask for guidance from the Supreme Court on patentability.
- Determining the Likelihood that an AI Patent Application Will Be Allowed at the USPTO – The USPTO is adapting to increased interest in artificial intelligence, but decisions from the Federal Circuit and Supreme Court have caused a rise in rejections in the field.
Here’s the latest.
- A Patent Crisis—Supreme Court Can Help America Compete Again – Former Chief Judge of the Federal Circuit, Randall Rader, discusses the need for a strong patent system in the United States in light of recent decisions and international competition.
- Federal Circuit Shoots Down Apple Bid to Strike Certain Voip-Pal Claims Upheld by PTAB – The Federal Circuit affirmed the PTAB’s finding of validity of Voip-Pal’s patent and upheld the sanctions granted against Apple in Apple Inc. v. Voip-Pail.com, Inc.
- IP at the Supreme Court: 2 Big Cases and a Lot of Long Shots – With the Supreme Court already granting certiorari to one case appealed from the Federal Circuit, other cases may also warrant review by the nation’s highest court.
Here’s the latest.
Online Symposium: The CBM Program Should Expire This Week as Provided by Law—Effective Alternatives for Robust Administrative Reviews of Issued Patents Remain
Guest post by Ron D. Katznelson, Ph.D.
The Transitional Program for Covered Business Method Patent Review (CBMR) was enacted in § 18 of the America Invents Act (AIA) for reviewing issued Covered Business Method (CBM) patents – patents that claim “a method or corresponding apparatus for performing data processing or other operations used in the practice, administration, or management of a financial product or service.” The AIA also set a sunset expiration date for CBMR on September 16, 2020. For the reasons explained below, CBMR should expire this week as intended and enacted in the AIA. As further explained below, those who wish to challenge CBM patents after that date, can effectively do so using any of the three alternative administrative proceedings at the US Patent & Trademark Office (PTO) that remain available with no sunset expiration, or by federal court action.
Guest post by Saurabh Vishnubhakat
As the Transitional Program for Covered Business Method (“CBM”) Review reaches its sunset date, it is useful to consider the design and implementation of this program and what lessons can be drawn from its eight-year run. Of particular interest are two unusual aspects of CBM review that have interacted with each other in instructive ways.
The Transitional Program for Covered Business Method (“CBM”) Review will come to an end on September 16, 2020, after eight years. In our view, the CBM program’s brief history is a cautionary tale about the costs that are imposed on the system when the Supreme Court delays in rectifying a mistake.