Strawberry Patent Wars Forever

To a casual grocery shopper, looking to find the perfect topping for her shortcake, ingredient for her smoothie or vehicle for her heavenly chocolate fondue, patents are probably the last things on her mind.  Yet, in fact, the very item that she seeks, the strawberry, an aromatic, bright red, juicy, and sweet fruit, has been at the center of ongoing patent litigation. Patent law covers the invention or discovery of “any new and.. Read More

Supreme Court to Hear Case on AIA “Secret Sales.”

What is the America Invents Act (AIA)? The path to patentability has many obstacles, and inventors’ own actions sometimes stand in the way of the U.S. Patent and Trademark Office (USPTO) granting a patent for their invention. In determining patentability, the USPTO compares a proposed invention to prior art—relevant existing inventions. The Smith-Leahy America Invents Act (AIA) was enacted in 2011, shifting the patent process from a “first to invent” to a “first.. Read More

The Impending Arrival of Newly Proposed Patent Subject Matter Eligibility Guidelines: An Opportunity for Clarity?

On April 11, 2018, the Director of the United States Patent and Trademark Office (USPTO), Andrei Iancu, delivered remarks at the United States Chamber of Commerce Patent Policy Conference, stating that the law surrounding patent subject matter eligibility (35 U.S.C. § 101) has resulted in “a more unpredictable patent landscape that is hurting innovation and, consequently, investment and job creation.” During these remarks, Director Iancu said the USPTO was “actively looking for ways.. Read More

Appeals from PTAB to the Federal Circuit: Injury-In-Fact Standing Requirement

There is a long-awaited clarification with regards to the question of whether a petitioner could appeal an adverse decision in an inter partes review (“IPR”) proceeding in the Patent Trials and Appeals Board (“PTAB”) to the Federal Circuit. There is a pending case at the Supreme Court, RPX Corp. v. ChanBond. The patent community is waiting to see whether the Supreme Court will grant certiorari in RPX Corp, which raises this exact question. In.. Read More

CRISPR Systems: Natural Occurrences & the Trans-Atlantic Divide over Patent Rights

Clorox sells a product, “disinfecting wipes,” that boasts on its container, “Kills 99.9% of Viruses & Bacteria.” It’s a great product, and I use it every day. But it’s a good thing there’s plenty more bacteria around. Inventors have begun deferring to them for inspiration, and it turns out, bacteria just might provide the panacea for an array of genetic afflictions. Yes, I’m talking about “CRISPR,”[1] a class of adaptive anti-viral systems that.. Read More

Oil States: SCOTUS Preserves IPR Status Quo

On April 24, 2018, the Supreme Court of the United States, in a 7-2 majority, decided Oil States Energy Services v. Greene’s Energy Group, holding that Inter Partes Review (IPR) proceedings do not violate Article III or the Seventh Amendment. Article III vests the “judicial power of the United States” in the Article III courts. In holding that IPR does not violate Article III, the Court construed the grant of a patent as.. Read More

The Federal Circuit Weighs in on CRISPR

Gene editing was once quite difficult.  Though it was not impossible to insert a new sequence of DNA into a bacterium and measure the effects, as recently as a decade ago, the process consumed unsustainably large amounts unlucky graduate students’ time and effort.  In 2012, a groundbreaking paper from the group led by Dr. Jennifer Doudna at the University of California demonstrated that the bacterial immune protein CRISPR Cas-9 could revolutionize gene editing… Read More

Sandoz Inc. v. Amgen Inc. and Its Implications

Background of the Case:   Sandoz Inc v. Amgen Inc., 137 S. Ct. 1664 (2017) is a case that involved statutory construction of the Biologics Price Competition and Innovation Act of 2009 (“BPCIA” or “Biosimilars Act”), which is codified in 42 U.S.C. § 262. The BPCIA is quite similar to the Drug Price Competition and Patent Term Restoration Act of 1984, also known as the Hatch-Waxman Amendments which created procedures to facilitate more.. Read More

The Bayh-Dole Act Has Been Successful in Stimulating a Market for Federally Funded Inventions, Now It’s Time to Bring Those Inventions to the Public

The federal government has proved to be ineffective at bringing publically funded discoveries to the public. The Bayh-Dole Act of the 1980’s was intended to maximize the public’s return on federally funded research by getting inventions into the hands of companies to bring them to the market (for a general introduction). The goal was to maximize the public’s return on our investments by placing IP rights in the hands of Research institutions, who.. Read More

Will Allergan’s Questionable New Licensing Tactic Kill Inter Partes Review?

In 2015, Allergan, a powerhouse pharmaceutical company, filed suit against generic companies for patent infringement. Allergan, Inc. v. TEVA Pharms. USA, Inc., No. 2:15-cv-1455-WCB (E.D. Tex. Oct. 16, 2017) hosted by The claim alleged infringement of patents that cover Allergan’s blockbuster eye drug, Restasis. In hopes of invalidating the Restasis patents, defendants filed administrative challenges in front of the Patent Trial and Appeals Board (PTAB) using a procedure known as inter partes.. Read More