A student-run resource for reliable reports on the latest law and technology news
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Federal Circuit Flash Digest: News In Brief

By Cristina Carapezza

Rosen Wins TV Headrest Patent Suit

Federal Circuit Allows for Declaratory Judgment of Noninfringement for Disclaimed Patent

Federal Circuit Prohibits Third Party Challenges to Patent Application Revivals Under the APA

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Government Agents Indicted for Wire Fraud and Money Laundering in Silk Road Investigation

By Sheri Pan – Edited by Jens Frankenreiter

Two former Drug Enforcement Administration agents have been charged for wire fraud and money laundering in connection with an investigation of Silk Road, a digital black market that allowed people to anonymously buy drugs and other illicit goods using Bitcoin, a digital currency. The two agents were members of the Baltimore Silk Road Task Force and allegedly used their official capacities and resources to steal Bitcoins for their personal gain.

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Mississippi Attorney General’s investigation of Google temporarily halted by federal court

By Lan Du – Edited by Katherine Kwong

On March 2, 2015, Mississippi Attorney General Jim Hood’s investigation of Google was halted by a federal court granting Google’s motion for a temporary restraining order and preliminary injunction. U.S. District Judge Henry T. Wingate issued the opinion. Judge Wingate found a substantial likelihood that Hood’s investigation violated Google’s First Amendment rights by content regulation of speech and placing limits of public access to information.

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Federal Circuit Flash Digest

By Ken Winterbottom

J.P. Morgan Appeal Dismissed for Lack of Jurisdiction

Court Agrees with USPTO: Settlement Agreements Are Not Grounds for Dismissing Patent Validity Challenges

Attorney Misconduct-Based Fee-Shifting Request Revived in Light of Recent Supreme Court Decision

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Pass the Patented Peas, Please: EPO Upholds Plant Product Patents

By Amanda Liverzani – Edited by Paulius Jurcys

Everything’s coming up roses for plant patent holders, following the European Patent Office’s recent endorsement of patents for tomato and broccoli plants.  In a March 25, 2015 decision, the Enlarged Board of Appeal held that the European Patent Convention’s Article 53(b) prohibition on patents for production of plants by “essentially biological processes . . . does not have a negative effect on the allowability of a product claim directed to plants.”

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By Michelle Goldring – Edited by Paulius Jurcys

President & Fellows of Harvard v. Lee, No. 2013-1628 (Fed. Cir. October 29, 2014)

Slip Opinion

The United States Court of Appeals for the Federal Circuit affirmed the United States District Court for the Eastern District of Virginia, which had granted summary judgment to the Patent and Trademark Office. Slip op. at 2. On de novo review, the Court of Appeals upheld the district court’s finding that Harvard’s third patent on a gene sequence used to make research animals more susceptible to cancer had expired and was not eligible for new claims under 37 C.F.R. § 1.530(j). Id. at 4.

In affirming the grant of summary judgment, the United States Court of Appeals for the Federal Circuit applied the arbitrary and capricious standard in the Administrative Procedure Act to prior court’s determination that the second patent had expired. Id. at 5. Harvard had filed a terminal disclaimer with the second patent, which was intended to run with the patent and any related patents. Id. at 3. It “disclaimed any portion of the term ‘of any patent granted on the above-identified application or on any application which is entitled to the filing date of this application under 35 U.S.C. § 120.” Id. (citing J.A. 1271–72). However, Harvard then argued that the disclaimer was invalid because Harvard had never paid the related fee and the PTO had not properly entered it. Id. at 56. The court reasoned that the rational basis standard had been met, based on the evidence Harvard provided. Id. at 9.

PatentDocs.org provides a detailed overview of the decision and the underlying patents.  (more…)

Posted On Nov - 11 - 2014 Comments Off READ FULL POST

By Michelle Goldring – Edited by Jesse Goodwin

Letter from ACLU and EFF to Williamson Cnty. Sch. Dist. (Oct. 27, 2014) (letter hosted by EFF.org)

Williamson County Schools Technology Policy

The American Civil Liberties Union of Tennessee (“ACLU”) and Electronic Frontier Foundation (“EFF”) wrote a letter to the superintendent and board of Williamson County Schools (“WCS”) in response to its new technology policy, protesting certain provisions and asking the board to alter those terms. In the letter, the ACLU and EFF raise concerns about specific portions of the policy that would limit students’ right to freely use social media even when outside the school and which would permit students’ devices to be searched with very few restrictions. In particular, they argue that these portions of the policy offend students’ First and Fourth Amendment rights, respectively.

The Washington Post and The Tennessean provide overviews of the ACLU and EFF’s concerns.  Wired includes some additional factual background. EFF also released its own summary of the letter. (more…)

Posted On Nov - 10 - 2014 Comments Off READ FULL POST

By Michael Shammas

High-Profile Patent Attorney Edward Reines Publically Reprimanded by Federal Circuit for Sharing Email Including Former Chief Judge Randall Rader’s Effusive Praise

Following a high-profile scandal in which US Circuit Judge Randall Rader stepped down for an “ethical breach” in which he emailed effusive praise to an attorney who appeared frequently before his court, the Federal Circuit issued an order publically reprimanding the compliments’ recipient for disseminating Rader’s email to prospective clients. The email read, in part, “You were alone and IMPRESSIVE in every way. In both cases, you knew the record cold and handled every question with confidence and grace.” Reines told clients that such praise was “quite unusual,” which the Federal Circuit interpreted as implying an improper relationship with a Federal Circuit judge. Because of a spotless past, discipline was limited to the public reprimand.

Federal Circuit Affirms Court of International Trade’s Decision in a Loss for Victoria’s Secret, in Case Where the Level of “Coverage” and “Support” Offered by Intimate Apparel Proved Key

The Court of Appeals for the Federal Circuit (“CAFC”) affirmed the Court of International Trade’s decision holding that the proper classification for one line of the company’s cotton tops is under 6114.20.00 as “other garments.” CAFC reasoned that the intimate apparel has two purposes, “coverage and support,” and that it cannot be classified as a brassiere because it can be worn in public. Victoria’s Secret brought the litigation because it disagree with Customs and Border Protection’s decision to classify the cotton garments as “tank tops” with a 16.5 percent duty. CAFC’s affirmation of the Court of International Trade decision is a middle of the road approach.

Fee-Shifting Reversed in AntiCancer, Inc. v. Pfizer (Fed. Cir. 2014), as Contentious Legal Battle Expected to Continue

AntiCancer, Inc. owns patents for technology linked to gene expression imaging using a green fluorescent protein related to a gene promoter. The protein comes from Aequorea victoria, a species of green-glowing jellyfish, and the patented inventions are thought to be useful for, among other things, cancer treatment. The district court entered summary judgment of noninfringement on a procedural aspect, then imposed a fee-shifting sanction as a condition of permitting AntiCancer, Inc. to supplement the Preliminary Infringement Contentions and overcome summary judgment. On Oct. 20, the Federal Circuit vacated the condition and remanded the case, finding that there was no reasonable basis for the finding of bad faith required to sustain the fee-shifting sanction.

Posted On Nov - 10 - 2014 Comments Off READ FULL POST

By Yaping Zhang – Edited by Mengyi Wang

Medicine Co. v. Mylan, No. 1:11-cv-01285 (N.D. Ill. Oct. 27, 2014)

Prescription Medication Spilling From an Open Medicine BottleOn October 27, the U.S. District Court for Northern Illinois ruled that Mylan Pharmaceuticals Inc. (“Mylan”), one of the biggest generic firm, infringed Medicine Co.’s No. 7,582,727 Patent (“the ‘727 Patent”).. In so holding, the court rejected Mylan’s invalidity and inequitable conduct contentions concerning the ‘727 Patent. The court held that Mylan infringed the ‘727 Patent under the “hypothetical” inquiry of infringement since Mylan’s ANDA application has not yet approved, and the infringement act has not yet occurred.

An overview of the case can be found here. (more…)

Posted On Nov - 10 - 2014 Comments Off READ FULL POST

By Steve Wilfong

Pricing and Contract Negotiations within United States not Sufficient to Constitute “Sale Within” the United States

The United States Court of Appeals for the Federal Circuit in Halo Electronics, Inc. v. Pulse Electronics, Inc., 13-1472 (Fed. Cir. October 22, 2014), affirmed the United States District Court for the District of Nevada’s ruling that Pulse did not directly infringe three of Halo’s patents related to surface mount electronic packages (U.S. Patents #5,656,985, 6,297,720, and 6,344,785), because the accused products were not sold, shipped, manufactured or delivered within the United States.  Halo at 2.  Halo argued that because negotiations and demand projections between Pulse and a buyer occurred in the United States, the accused products were “sold within” the United States as defined in Section 271(a) of the patent statute.  Id. at 9.  The Federal Circuit rejected this argument, holding that pricing and contract negotiations do not constitute a sale within the United States “when substantial activities of [the] sales transaction, including the final formation of a contract for sale . . . [and] delivery and performance under that sales contract, occur entirely outside the United States.”   Id. at 12.  The Federal Circuit stated that the “presumption against extraterritorial application of United States laws” supports this decision.  Id. at 13.  The Federal Circuit also concluded that the fact that Halo suffered economic harm from Pulse’s actions was not sufficient to establish infringement, id. at 14, and upheld the District Court’s judgment that Pulse’s infringement was not willful, id. at 19.  Law360 provides a discussion of the ruling.

Examining Electronic Passports Does Not Constitute Infringement

The United States Court of Appeals for the Federal Circuit in Iris Corporation v. Japan Airline Corporation, 10-1051 (Fed. Cir. October 21, 2014), affirmed the United States District Court for the Eastern District of New York’s ruling that Japan Airlines Corporation did not infringe Iris Corporation’s patent on secure identification document production (U.S. Patent #6,111,506).  Iris at 2.  Iris argued that Japan Airlines examines passports that are made using methods claimed in the patent, and that this process constitutes patent infringement.  Id. at 3. The Federal Circuit rejected this argument, affirming the District Court’s finding that the infringing acts are carried out “for the United States” as described in 28 U.S.C. §1498(a), and that as a result Iris’s only remedy would be an “action against the United States.”  Id. at 4, citing 28 U.S.C. §1498(a).  The court concluded that Japan Airlines’ passport examination was both “conducted ‘for the government’” and “conducted ‘with the authorization or consent of the government,” and that as a result the United States had assumed liability for the infringing activities.  Id.  In support of this conclusion, the court stated that Japan Airlines could not comply with United States laws without examining passports, id., and that the actions benefited the government by improving national security, id. at 5-6.

Divided Court of Appeals Denies Bristol-Myers Rehearing Petition 

The United States Court of Appeals for the Federal Circuit in Bristol-Myers Squibb Company v. Teva Pharmaceuticals USA, Inc., 13-1306 (Fed. Cir. October 20, 2014), denied Bristol-Myers’ combined petition for panel rehearing and rehearing en banc.  Bristol-Myers at 3.  The panel held that a Bristol-Myers patent for a compound used to treat hepatitis B was invalid due to obviousness, because it was based on a prior-art compound.  Id. at 2 (Taranto, dissenting).  The panel concluded that the fact that the prior-art compound was found to be toxic after Bristol-Myers filed their patent should not influence the finding of obviousness.  Id.  The Federal Circuit affirmed the panel’s position, holding that the toxic nature of the prior compound should not be considered in this case under 35 U.S.C. §103, because “an invention is not patentable if it ‘would have been obvious before the effective filing date . . . to a person having ordinary skill in the art to which the claimed invention pertains.”  Id. at 1 (Dyk, concurring), citing 35 U.S.C. §103 (emphasis in original).  The opinion included two dissents, which raised concerns that the majority’s ruling would make the process of establishing patentability of new products unduly difficult.  See, e.g., id. at 3 (Newman, dissenting).  Law360 provides an in-depth discussion of the ruling.

Posted On Nov - 5 - 2014 Comments Off READ FULL POST
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