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

Fed Circuit Watch: IPRs Not Unconstitutional Taking Under Fifth Amendment

5th amendment fed circuit watch IPR patent

Many cases have been heard before the Court of Appeals for the Federal Circuit dealing with substantive patent issues, like questions involving anticipation under 35 U.S.C. §102, obviousness under 35 U.S.C §103, or patent-eligible subject matter under 35 U.S.C. §101.  Constitutional issues have been rare, with the exception of Oil States which questioned the constitutionality …

Continue Reading

Fed Circuit Watch: No State Sovereign Immunity in IPR

AIA fed circuit watch IPR patent sovereign immunity

On June 14, 2019, the Court of Appeals for the Federal Circuit delivered its long-awaited opinion on state sovereign immunity in post-grant proceedings in Regents of the Univ. of Minnesota v. LSI Corporation.[1]  Like it ruled in the sister case last year, Saint Regis Mohawk Tribe v. Mylan Pharms. Inc.,[2] dealing with tribal sovereign immunity, …

Continue Reading

Fed Circuit Watch: No Standing to Appeal When Biosimilar Product Withdrawn

appeals fed circuit watch IPR jurisdiction patent PTAB

Sometimes substantive patent issues are never dealt with in cases, but rather dispositive issues are handled by procedural mechanisms.  One case in point is Momenta Pharms., Inc. v. Bristol-Myers Squibb Co.,[1] which the Court of Appeals for the Federal Circuit decided on February 7, 2019. BMS owns U.S. Patent No. 8,476,239 (‘239), entitled “Stable protein …

Continue Reading

Fed Circuit Watch: Single Reference Obviousness Finding Does Not Require Motivation to Combine

103 fed circuit watch IPR motivation to combine patent POSITA

Two cases decided recently by the Court of Appeals for the Federal Circuit discuss the oft-problematic area of 35 U.S.C. §103, or the nonobviousness requirement.  This is the second case, Realtime Data, LLC v. Iancu,[1] decided January 10, 2019. Realtime Data, LLC, owns U.S. Patent No. 6,597,812 (‘812), directed to system and method of providing …

Continue Reading

Fed Circuit Watch: No Error in Reconsideration of Non-Instituted Ground of Unpatentability

103 fed circuit watch IPR obviousness patent

Two cases decided recently by the Court of Appeals for the Federal Circuit discuss the oft-problematic area of 35 U.S.C. §103, or the nonobviousness requirement.  AC Technologies S.A. v. Amazon.com, Inc.,[1] decided on January 9, 2019, is the first case. AC Technologies S.A. owns U.S. Patent No. 7,904,680 (‘680), directed to data access management, in …

Continue Reading

Fed Circuit Watch: PTAB Messed Up Obviousness Analysis (Again)

103 fed circuit watch IPR obviousness overlapping ranges patent POSITA PTAB

The Patent Trial and Appeal Board (PTAB) seems to have bungled an obviousness analysis (again), and was dinged by the Court of Appeals for the Federal Circuit in E.I. DuPont de Nemours v. Synvina C.V.,[1] decided on September 17, 2018.  The case is a good primer on the law of obviousness related to overlapping ranges. …

Continue Reading