The US Court of Appeals for the Federal Circuit recently adopted several amendments to its rules of practice, which govern procedural aspects of appeals from district court patent cases and appeals from Patent Trial and Appeal Board proceedings. These amendments apply to all appeals filed or pending on or after 1 July 2020, to the extent practicable, unless otherwise ordered.
With the rise of social distancing and stay-at-home orders, the demand for online content has increased exponentially. Given this new reality, online content creators must take steps to ensure that their online creations do not land them in legal hot water. This article's examples and best practices illustrate and address the challenges associated with using music in online content.
The Trademark Trial and Appeal Board recently affirmed a United States Patent and Trademark Office (USPTO) decision denying the application of a mark for hemp oil extracts sold as an integral component of dietary and nutritional supplements. In its decision, the USPTO had reasoned that the applicant's goods, which contained cannabidiol, were illegal under federal law – specifically, the Food, Drug and Cosmetics Act and the Controlled Substances Act.
Absent a few limited exceptions, the use of someone else's music without their permission is an infringement on their copyright. This article sets out some fundamentals to assist in determining the type of licence that an average company would need and some potential alternatives. The bottom line when planning and budgeting for music in a project is to get the proper rights and permissions in place before pressing 'play'.
A bipartisan group of representatives in the US House of Representatives recently introduced the Stopping Harmful Offers on Platforms by Screening Against Fakes in E-Commerce Act to help stem the growing concern over counterfeit products being offered for sale on online third-party marketplace e-commerce platforms. Although e-commerce is a relatively new retail platform, it has been capturing larger percentages of sales in the US retail industry.
The US Patent and Trademark Office (USPTO) has enacted a series of rule changes that will have a significant impact on trademark filers. The widest-scale change is the requirement for electronic filing of all submissions to the USPTO. However, additional application and specimen requirements are likely to have a greater effect on applicants, as compared with prior practice.
The Supreme Court has unanimously ruled that the US Patent and Trademark Office cannot shift the fees of its attorneys and paralegals to litigants in district court proceedings brought under Title 35, Section 145 of the US Code. Justice Sotomayor explained that, under the centuries-old presumption commonly known as the 'American rule', each litigant pays its own attorneys' fees "win or lose, unless a statute or contract provides otherwise".
Thus far, biosimilar uptake has been low in the United States, with market shares for most biosimilars under 10%. Given the cost-saving potential, trying to increase biosimilar uptake has been high on Congress's agenda and there are many bills pending before it dealing with issues from a variety of angles. But will they actually help to bring biosimilars to market more quickly?
Thus far, 2019 has been an eventful year for US patent law. Over the past seven months, the Supreme Court and the Court of Appeals for the Federal Circuit (the US appellate court tasked with reviewing all district court patent decisions) have issued several significant rulings that may affect the rights of patent owners. This article reviews the most important of these rulings, including decisions on the application of the on-sale bar and state sovereign immunity.
A Federal Circuit panel recently held that state sovereign immunity does not apply to inter partes review proceedings conducted before the Patent Trial and Appeal Board of the Patent and Trademark Office. The dispute had arisen after the University of Minnesota (UMN) sued LSI and Ericsson customers in a district court for the infringement of several UMN patents claiming 4G LTE telecoms technology.
The Supreme Court recently ruled six-to-three that a federal agency cannot petition for the review of an issued patent under the America Invents Act. This decision prevents the government from challenging the validity of issued patents through inter partes, post-grant and covered business method reviews.
While the biosimilar market in the United States has gotten off to a relatively slow start compared with Europe – where biosimilars have been available since 2006 – it has recently gained momentum and will continue to grow in the coming years as more blockbuster biologics lose regulatory exclusivity and patent protection.
The Supreme Court recently held that the sale of a patented invention to a third party that is contractually obligated to keep the invention confidential can trigger the on-sale bar of the Leahy-Smith America Invents Act. The decision clarifies statutory language in the act, which has been a source of considerable confusion to patent litigants. The decision also requires that IP owners carefully ensure that public disclosure of their business dealings does not interfere with their patent rights.
A Federal Circuit panel recently held that a patent term extension (PTE) granted pursuant to 35 USC Section 156 was not invalid for obviousness-type double patenting. The decision should provide pharmaceutical patentees with some assurance that their PTEs generally will not fall foul of the obviousness-type double patenting doctrine.
The Federal Circuit recently held that the assignor estoppel is not available in inter partes review proceedings. Assignor estoppel is a common law doctrine which prevents a party that assigns a patent to another party from later challenging the validity of the assigned patent. In a decision by Chief Judge Prost (joined by Judges Schall and Chen) the Federal Circuit held that the assignor estoppel is not available in inter partes reviews.
The Federal Circuit recently affirmed the Patent Trial and Appeal Board's determination that there was no interference-in-fact between the University of California's Patent Application 13/842,859 and the 12 patents and one patent application owned by the Broad Institute, the Massachusetts Institute of Technology and Harvard University concerning CRISPR-Cas9 technology.
The Federal Circuit recently affirmed a district court's denial of the US Patent and Trademark Office's request for reimbursement of attorneys' fees which it had incurred in defending a district court action brought against it under 35 USC § 145. The majority held that Section 145 expenses do not include attorneys' fees because any statute seeking to depart from the default 'American Rule' must do so using specific and explicit language, which Section 145 lacks.
The US Supreme Court recently held that patent owners can recover lost profits damages under 35 USC Section 271(f)(2) based on acts occurring outside the United States. Section 271(f)(2) imposes patent infringement liability where a party supplies components from the United States that are not "suitable for substantial noninfringing use" which it intends to be combined abroad in a manner that would infringe if the combination had occurred within the United States.
The Patent Trial and Appeal Board (PTAB) has designated a recent order as 'informative'. Although not precedential, the order provides guidance concerning the PTAB's treatment of motions to amend patent claims challenged in inter partes review proceedings following Aqua Products, Inc v Matal, wherein it was held that a patent owner in an inter partes review proceeding does not bear the burden of demonstrating the patentability of substitute claims presented in a motion to amend.
After a week-long trial and four days of deliberation, a federal jury has determined that Samsung owes Apple over $533 million in damages for infringing three design patents asserted by Apple. The jury also found Samsung liable to pay more than $5 million for infringing two utility patents.