• As Momentum For a 101 Fix Builds on Capitol Hill, A Look at the Revived Senate IP Subcommittee’s Leadership

    Last week, Senator Chris Coons (D-DE) and Senator Thom Tillis (R-NC)—respectively, Ranking Member and Chair of the Senate Judiciary Committee’s Subcommittee on Intellectual Property, which was resurrected on February 7 for the first time since 2007—met with Congressman Doug Collins (R-GA) and others for their second bipartisan meeting in three months in search of a possible legislative solution to the patent eligibility crisis facing biotechnology, medical diagnostics and software related…

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  • District Court Invalidates Prolacta Milk Processing Claims Under 35 USC 101

    In Ni-Q, LLC v. Prolacta Bioscience, Inc., the United States District Court for the District of Oregon invalidated under 35 USC § 101 Prolacta’s patent on testing milk to establish or confirm the identity of the donor. The decision was made on Ni-Q’s motion for summary judgement, and illustrates the reach of recent Federal Circuit jurisprudence on…… Continue reading this entry

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  • Express Mobile, Inc. v. Code and Theory LLC (N.D. Cal. 2019)

    Web Page Creation Patents Found to Be Directed to Patent Eligible Subject Matter By Joseph Herndon — Two related patent cases Express Mobile, Inc. v. Code and Theory LLC and Express Mobile, Inc. v. Pantheon Systems Inc. within the U.S. District Court for the Northern District of California each involve allegations that the various Defendants infringe U.S. Patent Nos. 6,546,397 (the ‘397 patent) and 7,594,168 (the ‘168 patent), which share the same specification. Defendants in these two actions moved to dismiss, contending that the patent claims are drawn only to abstract ideas, ineligible for protection under § 101 of the…

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  • CAFC finds, in part, in favor of pro se patentee

    The decision of noninfringement of WD Mich was vacated:

    We vacate the grant of summary judgment
    of noninfringement and remand for further proceedings.

    While we are sympathetic to the fact that the district
    court is handling a complex patent case involving a pro se
    patent owner, the district court erred in granting summary
    judgment of noninfringement. In granting summary judgment,
    the district court determined that the AeroFlap does
    not contain three limitations of the RE’755 patent claims.
    First, the district court held the AeroFlap does not have the
    claimed “vanes” because its channels are formed from depressions
    in the surface of its mud flap, rather than from
    vanes that protrude from the surface. Second, it held these
    depressions in the AeroFlap do not prevent water and debris from
    passing through slotted openings. Third, to the
    extent the AeroFlap has the claimed “vanes,” “channels,”
    or “slotted openings,” it held they are not “vertically extending.”
    The district court’s analysis of these limitations
    was erroneous

    The scope of the meaning of “vanes” was factually in dispute:

    We agree with Mr. Surti, however, that a genuine issue
    of fact exists as to whether the AeroFlap has the claimed
    vanes. The district court based its conclusion that the
    AeroFlap does not have “vanes” on the fact that its
    channels are created from depressions in the front surface
    of the mud flap, rather than structures that protrude from
    a surface. Though AeroFlap’s vanes are flush with the
    front surface of the mud flap, a reasonable jury could
    conclude that they protrude from the rear wall of the
    channels. The construction of vanes does not require that
    the vanes protrude beyond all other surfaces on the mud

    FLEET ENGINEERS, INC. v. Mudguard, Surti

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  • Mission Product Oral Argument Promises Certainty on Long Unresolved Question

    Mission Product Holdings v. Tempnology was argued last week at the Supreme Court and seeks to solve a circuit split regarding the effects of bankruptcy proceedings on trademark licenses. The case asks the nation’s highest court to determine if the rejection of a license in bankruptcy terminates the licensee’s right to to the trademarks or whether that license rejection only constitutes a breach by the licensor, in which case the licensee can still use the marks. The International Trademark…

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  • 製造する



    $$ A person skilled in the art would appreciate how to manufacture the nozzle arrangement form such materials. / そのよう…

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  • IP and Innovation on Capitol Hill: Week of February 25

    This week on Capitol Hill, the newly revived Senate Subcommittee on Intellectual Property meets for the first time this term to discuss the 2019 “Annual Intellectual Property Report to Congress”; other Senate committee hearings will look at concerns related to drug pricing, the effects of the Made in China 2025 initiative on American industry and proposed legislation to support innovation in carbon capture technologies; U.S. House of Representatives committees hold hearings focusing on issues…

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  • Contreras on Extraterritoriality

    Jorge Contreras has posted a paper on ssrn titled The New Extraterritoriality: FRAND Royalties, Anti-Suit Injunctions and the Global Race To The Bottom In Disputes Over Standards-Essential Patents, 25 B.U. J. Sci. & Tech. L. (2019 forthcoming).  Here is a link to the paper, and here is the abstract:
    While national courts have long exercised extraterritorial authority over domestic entities whose conduct abroad is prohibited in the domestic jurisdiction, national courts have recently begun to use disputes over domestic patent rights as vehicles for shaping the global business arrangements of private parties even absent any violation of national law. This phenomenon has become particularly pronounced in the context of “fair, reasonable and non-discriminatory” (FRAND) licenses of patents that are essential to the manufacture and sale of standardized products. This essay explores the increasing extraterritorial effect of national judicial decisions on licenses for standards-essential patents, including recent instances in which courts in the U.S. and UK have sought to establish global FRAND royalty rates for parties engaged in national patent litigation. It also examines the increasing use of the anti-suit injunction, a powerful procedural tool that can enjoin parallel foreign proceedings while disputes are adjudicated in a first jurisdiction. The combination of national courts’ willingness to determine global patent licensing rates, coupled with the rising prevalence of the anti-suit injunction, threatens to cause a new “race to the bottom” among jurisdictions in this commercially significant area of the law. 
    This is a good paper, and I recommend it to those of you who are trying to figure out what SSOs, courts, and others should be thinking about as they take on global FRAND litigation.
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  • Why the Federal Circuit is to Blame for the 101 Crisis

    When the Supreme Court believes that the Federal Circuit has made an error, they will reverse and remand with broad guidance, but often are not able to determine what the proper test should be. The Supreme Court wants, and expects, the Federal Circuit to determine the proper test because, after all, it is the Federal Circuit that is charged with being America’s chief patent court. But the Federal Circuit has become myopic. It is getting tiring to read in case after case— where real innovation…

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