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

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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 …

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Fed Circuit Watch: IPRs Not Unconstitutional Taking Under Fifth Amendment

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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 …

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Fed Circuit Watch: No State Sovereign Immunity in IPR

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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, …

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SCOTUS Watch: Government Is Not a Person for Purposes of AIA

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On June 10, 2019, the U.S. Supreme Court overturned the Court of Appeals for the Federal Circuit in Return Mail, Inc. v. United States Postal Service,[1] in which the Court held that the Government was not a “person” for definitions of the America Invents Act (AIA). The case originates from Return Mail’s patent, U.S. Patent …

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Fed Circuit Watch: No Standing to Appeal When Biosimilar Product Withdrawn

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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 …

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

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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 …

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

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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 …

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Rule Change for PTAB Post-Grant Claim Construction

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On October 11, 2018, the USPTO published in the Federal Register a rule change, 83 F.R. 51340, to take effect today, November 13, 2018.  For all AIA post-grant petitions (IPRs, PGRs, and CBMs) filed on or after this date, the broadest reasonable interpretation (BRI) standard will no longer be used in claim construction for these …

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

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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. …

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SCOTUS Watch: Is the U.S. Government a Person?

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An interesting question has been presented to the U.S. Supreme Court when it granted a writ of certiorari on October 26, 2018.  That is, is the United States Government, through one of its agencies, a “person” for purposes of the America Invents Act (AIA), the most recent Patent Act from 2012.  The case, Return Mail …

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