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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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Stephen Hawking™: Famed Physicist Seeks Trademark Protection For His Name

By Amanda Liverzani – Edited by Saukshmya Trichi

Stephen Hawking is posed to leverage his physics fame as a brand name. The renowned theoretical physicist has filed an application to register his name as a trademark with the U.K. Intellectual Property Office. The trademark, if approved, will give Hawking greater control over how his name is used in connection with certain goods and services including charitable endeavors, scientific research, and medical devices.

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Flash Digest: News in Brief

By Jeanne Jeong

European Regulators and Watchdogs Increase Investigation of “Technology Giants”

Snapchat Published Transparency Report Revealing Government Data Sharing

New Senate Cyberbill Measure to Protect Americans from Cybercrime

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Australian Parliament Passes Data Retention Law Requiring Storage of User Metadata

By Jenny Choi – Edited by Katherine Kwong

On March 26, 2015, the Australian Senate passed the Telecommunications Amendment Bill 2015. The bill requires the Internet Service Providers (“ISPs”) and telecommunication providers to encrypt and retain user metadata for two years, and prohibits a person from disclosing or using information about the existence or non-existence of a warrant. The purpose of the Bill is to ensure national security and provide law enforcement agencies adequate access to the information they need.

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Supreme Court Rejects Diagnostic Process Claims as Unpatentable Laws of Nature
By Charlie Stiernberg – Edited by Dorothy Du

Mayo Collaborative Servs. v. Prometheus Labs., Inc., No. 10-1150 (U.S. Mar. 20, 2012)
Slip Opinion

In a unanimous opinion, the Supreme Court reversed a ruling by the Court of Appeals for the Federal Circuit that had held Prometheus’ claimed invention, a process that helps doctors determine whether a given dosage of thiopurine drugs is too high or low, was patentable subject matter under the “machine or transformation test.” Mayo Collaborative Servs. v. Prometheus Labs., Inc., No. 10-1150, slip op. at 4, 7 (U.S. Mar. 20, 2012) (citing Prometheus Labs., Inc. v. Mayo Collaborative Servs., 581 F.3d 1336, 1345–47 (Fed. Cir. 2009)).

In an opinion by Justice Breyer, the Court held Prometheus’ claimed invention was unpatentable under 35 U.S.C. § 101, because it was fundamentally a law of nature. Id. at 24. In so holding, the court reasoned “the steps in the claimed processes (aside from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field.” Id. at 4. The Court emphasized that just as a law of nature has long been held unpatentable, so too “is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a drafting effort designed to monopolize the law of nature itself.” Id. at 8–9.

SCOTUSblog provides a history of the case, briefs, and other relevant court documents. Patently-O breaks down the opinion in a section-by-section analysis. IPWatchdog criticizes the decision, admonishing that it will kill the medical diagnostics industry. The AMA praises the decision for invalidating patents that inhibit medical treatments. PharmExecBlog argues the decision may be a “harbinger” for the Myriad case now pending before the Court. (more…)

Posted On Apr - 4 - 2012 1 Comment READ FULL POST

Federal Circuit invites en banc review of broadening reissue jurisprudence
By Jeffery Habenicht – Edited by Charlie Stiernberg

In re Staats, No. 2010-1443 (Fed. Cir. Mar. 5, 2012)
Slip opinion

The Federal Circuit reversed the Board of Patent Appeals and Interferences’ (“Board”) decision to reject Staats’s reissue application and remanded for further proceedings. The Board had rejected Staats’s continuing reissue application because it was filed outside of the two-year time limit imposed by 35 U.S.C. § 251 and was not sufficiently related to a previous broadening reissue application filed within the two-year limit. In re Staats, No. 2010-1443, slip op. at 5–6 (Fed. Cir. Mar. 5, 2012).

The Federal Circuit held that the Board’s decision was inconsistent with its predecessor court’s decision in In re Doll, which concluded the two-year time limit in § 251 only applied to the initial broadening reissue application — not to properly filed continuation applications. Id. at 9 (citing In re Doll, 419 F.2d 925 (C.C.P.A 1970)). The court rejected the PTO’s argument that Doll only applied if the continuation application was “related” to a reissue application filed within the two-year window. Id. The court stated that this type of test would be “unmanageable,” because, by definition, every claim must be different in scope than the other claims. Id. at 10. In so holding, the court relied almost exclusively on Doll. The court concluded that if the PTO wanted to overrule Doll it would have to petition for a rehearing en banc. Id. at 11.

IPBIZ summarizes the case. Patently-O provides an overview and analysis. PharmaPatents criticizes the court’s broad interpretation of § 251, arguing that it will result in “twenty years of uncertainty” and a resurgence of post-grant strategic maneuvering. Patents Post-Grant, however, argues that Staats will have little effect because relying on broadening reissue applications as a matter of course has its own inherent drawbacks. (more…)

Posted On Apr - 4 - 2012 Comments Off READ FULL POST

California Considers Regulation of Autonomous Vehicles

By Yana Welinder – Edited by Albert Wang

California S.B. 1298 – Autonomous Vehicles
Bill
Leginfo.ca.gov summary

On February 23, California Sen. Alex Padilla (D-Pacoima) introduced S.B. 1298. This bill would direct the Department of the California Highway Patrol to adopt “safety standards and performance requirements” with respect to autonomous vehicles that use “computers, sensors, and other technology and devices that enable [them] to safely operate without the active control and continuous monitoring of a human operator.” The bill would further expressly permit the operation of such a vehicle on California roads if its manufacturer shows that the vehicle meets all the adopted requirements and standards. According to Sen. Padilla’s news release, this bill seeks to provide for safe use of vehicles that “have the potential to significantly reduce traffic fatalities and improve safety on [California] roads.”  Similar legislation was introduced in Nevada last year and is currently being considered in Florida, Hawaii, and Oklahoma.

Wired provides an initial overview of the bill. Stanford CIS further compares the bill to legislative developments in other states.
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Posted On Mar - 26 - 2012 Comments Off READ FULL POST

State Appeals Court Rules for Online Ticketing Site Under Federal Communications Law
By Geng Chen – Edited by Lauren Henry

Hill v. StubHub, Inc., NO. COA11-685, 2012 WL 696223 (N.C. App. Ct. March 6, 2012)
Slip Opinion

The Court of Appeals of North Carolina reversed the Guilford County Superior Court’s grant of summary judgment for the plaintiffs in an unfair and deceptive trade practices case arising out of the 2007 “Miley Cyrus as Hannah Montana” concert tour. The trial court found StubHub in violation of N.C. Gen.Stat. § 14–344, which prohibits a seller from reselling tickets for more than $3 over their “face value.” It also rejected StubHub’s argument that it was immune from liability under 47 U.S.C. § 230, which provides immunity to liability to providers or users of interactive computer services, who act as publishers or speakers of information provided by another information content provider.

The Court of Appeals conducted a de novo review of the trial court’s summary judgment decision on the issue of the scope of 47 U.S.C. § 230 immunity, an issue of first impression in North Carolina. The court held that StubHub acted not as a seller but as a broker, making § 230 immunity applicable. The court also held that StubHub was not liable under North Carolina law for the fees it charged the ticket-seller for use of the site because it was not the seller or the seller’s agent in the transaction.

Eric Goldman provides an overview of the case and discusses the holding in light of other §230 cases. (more…)

Posted On Mar - 20 - 2012 Comments Off READ FULL POST

Federal Circuit Avoids §101 Analysis in Determining Patent Validity
By Jacob Rogers – Edited by Lauren Henry

MySpace, Inc. v. Graphon Corp., No. 2011-1149 (Fed. Cir. 2012)
Slip opinion

The Federal Circuit affirmed Northern District of California’s ruling on summary judgment that four of Graphon’s patents were invalid due to either lack of novelty or obviousness under 35 U.S.C. §102 and 35 U.S.C. §103, respectively. The district court found that these patents, which disclose a method for creating and searching a database over the Internet, were anticipated by the Mother of All Bulletin boards, created by Dr. Oliver McBryan. MySpace v. Graphon, No. 2011-1149.

The Federal Circuit held that the district court correctly ruled that Graphon’s patents were either anticipated or obvious and that the district court’s reasoning was adequately clear despite a failure to go through the full Graham factor analysis. Id. at 23 (citing Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17 (1966)). The court also held that it was not necessary to examine the subject matter of the patents under 35 U.S.C. §101 because the case could be dealt with using §§102 and 103. Id. at 17-18. In so holding, the court compared the patentable subject matter requirements of §101 to the Constitution and suggested that the courts should apply something similar to the constitutional avoidance doctrine by endeavoring to resolve cases under §102 and 103 rather than §101 whenever possible. Id.

PatentlyO provides an overview and analysis of the case. The Patent Prospector criticizes the decision, arguing that the district court’s incomplete claim construction should have been reversible error. (more…)

Posted On Mar - 13 - 2012 Comments Off READ FULL POST
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Federal Circuit Flas

By Ken Winterbottom J.P. Morgan Appeal Dismissed for Lack of Jurisdiction In ...

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Pass the Patented Pe

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Stephen Hawking™:

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Flash Digest: News i

By Jeanne Jeong European Regulators and Watchdogs Increase Investigation of “Technology ...

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Australian Parliamen

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