Arguing Takings of IP Rights is, Sadly, a Losing Proposition

5th amendment circuit watch copyright fed circuit watch IPR patent trademark

The Takings Clause of the Fifth Amendment states that private property “shall not be taken for public use, without just compensation.”[1]  Intellectual property rights – patents, trademarks, copyrights, and other IP – have long been considered property rights.  This belief, however, has been tested by the Supreme Court’s reluctance to specifically define IP as a …

Continue Reading

SCOTUS Grants Certiorari on Appointments Clause Issue

article II constitution fed circuit watch patent PTAB scotus watch

In its orders of October 13, 2020, the U.S. Supreme Court granted petitions for writ of certiorari to three cases involving Arthrex, Inc., dealing with the constitutionality of the PTAB’s judges: United States v. Arthrex, Inc. (Docket No. 19-1434), Smith & Nephew, Inc. v. Arthrex, Inc. (Docket No. 19-1452), and Arthrex, Inc. v. Smith & …

Continue Reading

Method of Preparation Claims Patent-Eligible in Illumina Modified Opinion

101 fed circuit watch patent patent eligible subject matter

On August 3, 2020, the Court of Appeals for the Federal Circuit issued a modified opinion in Illumina, Inc. v. Ariosa Diagnostics, Inc.,[1] reiterating its earlier opinion[2] finding claims directed to method of preparing cell-free fetal DNA in maternal blood as patent-eligible subject matter under 35 U.S.C. §101.  This modified opinion reflected Ariosa’s recent petition …

Continue Reading

American Axle Denied en banc Review

101 fed circuit watch patent patent eligible subject matter

On July 31, 2020, the Court of Appeals for the Federal Circuit denied American Axle’s petition for en banc review, in American Axle & Manuf., Inc. v. Neapco Holdings LLC,[1] with those judges seeking review not able to muster a majority of the entire panel.  This is the second iteration[2] of appellate review for American …

Continue Reading

Trademarks Post-Tam & Brunetti

1st amendment fed circuit watch section 2(a) trademark

Two recent U.S. Supreme Court decisions in Matal v. Tam,[1] decided in 2017, and Iancu v. Brunetti,[2] decided this past May, both dealt with registration of trademarks under 15 U.S.C. §1052(a) (§2(a)) that ran afoul of the First Amendment’s freedom of speech clause. 2(a) reads: No trademark by which the goods of the applicant may …

Continue Reading

Prosecution History Estoppel Limits Design Patent Amendments

101 102 anticipation design fed circuit watch patent prosecution history estoppel

A fascinating ruling dealing with design patents, amendments made during prosecution, and limitations on claim scope was handed down by the Court of Appeals for the Federal Circuit on September 12, 2019 in Curver Luxembourg, Sarl v. Home Expressions Inc..[1]  Curver is an important piece in an otherwise scant design patent case law. Curver Luxembourg …

Continue Reading

Limitations on State Sovereign Immunity on Venue

11th amendment fed circuit watch patent venue

The issue of sovereign immunity has been raised several times in recent memory at the Court of Appeals for the Federal Circuit, including St. Regis Mohawk Tribe v. Mylan Pharms., Inc.,[1] (discussed on the blog here), and Regents of the Univ. of Minn. v. LSI Corp.,[2] (discussed here).  Board of Regents of the Univ. of …

Continue Reading

Garage Door Tech Not Patent-Eligible

101 103 fed circuit watch patent patent eligible subject matter wurc

On August 21, 2019, the Court of Appeals for the Federal Circuit held in The Chamberlain Group, Inc. v. Techtronic Inds. Co.,[1] that Chamberlain’s U.S. Patent No. 7,224,275 (‘275) directed to wireless communications technology for operating a movable barrier (i.e., garage door opener) was patent-ineligible subject matter under 35 U.S.C. §101. The ‘275 patent is …

Continue Reading

Fed Circuit Watch: Claim Construction Before Patent-Eligibility Analysis

101 fed circuit watch patent patent eligible subject matter

There have been several patent-eligibility rulings by the Court of Appeals for the Federal Circuit this year, but on August 16, 2019, the Fed Circuit held that claim construction in-dispute must be resolved before patent-eligibility under 35 U.S.C. §101 can be analyzed, in MyMail, Ltd. v. ooVoo, LLC.[1]  The somewhat circuitous procedural aspects of this …

Continue Reading

Fed Circuit Watch: Valuable Contribution Is Not Necessarily Patent-Eligible

101 fed circuit watch patent patent eligible subject matter

In a strange ruling by the Court of Appeals for the Federal Circuit, on July 29, 2019, although publicly released on August 9, 2019, in Genetic Veterinary Scis., Inc. v. Laboklin GmbH & Co KG,[1] the Fed Circuit found that in spite of the claimed invention’s “valuable contribution” to the veterinary sciences, it remained outside …

Continue Reading