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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Fed Circuit Watch: Hyperlinked Material in Federal Register Notice is Prior Art

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What constitutes prior art is not as easy as it may seem.  While it may be uncontroverted that a Federal Register notice is prior art, the hyperlinked materials in that notice is what was at issue in Jazz Pharm., Inc. v. Amneal Pharm., Inc.,[1] decided by the Court of Appeals for the Federal Circuit on …

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Fed Circuit Watch: No Sovereign Immunity in IPR

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Sovereign immunity is the right of the government to not be sued absent waiver or consent.  The federal government retains sovereign immunity rights.[1]  States, through the Eleventh Amendment, also have sovereign immunity in federal courts.[2]  Indian tribes also have sovereign immunity absent waiver or congressional abrogation.[3]  This final type, tribal sovereign immunity, has never been …

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Fed Circuit Watch: PTAB Decisions Questioned in Light of SAS and Aqua Products

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On June 19, 2018, the Court of Appeals for the Federal Circuit issued Sirona Dental Systs. GmbH v. Institut Straumann AG.[1]  The case is important because two other recent court decisions – SAS and Aqua Products – affected certain details of this case that ultimately affected how the Fed Circuit ruled.  In SAS, the U.S. …

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Fed Circuit Watch: All Claims and Grounds Must Be Addressed Post-SAS

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On July 2, 2018, the Court of Appeals for the Federal Circuit issued a mandate in Adidas AG v. Nike, Inc., in yet another post-SAS determination.  Before a panel composed of Judges Moore, Wallach, and Taranto, issued the order remanding the case back to the PTAB to address all claims and grounds originally raised in …

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