FedCircuitBlog

• 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.

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.”[1] The AIA also set a sunset expiration date for CBMR on September 16, 2020.[2] 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.

Guest Post by Joseph Matal and David McCombs

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.

• Federal Circuit Hearing More Cases by Phone – The Federal Circuit will increase the number of arguments it hears via phone next month.
• Bad Conduct During Litigation Means Attorneys’ Fees Regardless of Damage Amount – The Federal Circuit disagrees with lowering an award of attorney fees based on a lesser damages award.
• COVID-19 Underscores Diagnostic Patent Eligibility Problems – What is the impact of recent judicial precedent on diagnostic methods?

Here’s the latest.

This month we highlight three papers exploring research related to the Federal Circuit.

• Eligible Subject Matter at the Patent Office: An Empirical Study of the Influence of Alice on Patent Examiners and Patent Applicants by Professors Jay P. Kesan and Runhua Wang
• Law, Fact, and Patent Validity by Professor Paul R. Gugliuzza
• Year in Review: The Federal Circuit’s 2019 Government Contract Law Decisions by Nathaniel Castellano

Here is a report on recent news and commentary related to the Federal Circuit and its cases. In Romag Fasteners, Inc. v. Fossil, Inc., the Supreme Court vacated a judgment of the Federal Circuit, holding unanimously that trademark owners do not have to show an infringer’s willfulness as a precondition to a profits award. In an April report, Adjusting to Alice, the USPTO claims that the guidance it provided after the Alice decision decreased the unpredictability of patent examination. On Law.com, Scott Graham suggests that the Federal Circuit could soon reconsider its decision in Arista Networks v. Cisco Systems.

Here is a report on recent news and commentary related to the Federal Circuit and its cases, including an article highlighting a recent case addressing a question of first impression, a commentary on the current stage of patent eligibility law, and a blog post related to a recent petition for certiorari.