The Court of Appeals for the Federal Circuit vacated its decision in Ariad v. Lilly, granting en banc rehearing of the case. In its petition, Ariad Pharmaceuticals asked the court to answer two questions: first, whether the court erred by engrafting a separate written description requirement onto §112 ¶1; and second, what is the proper test to satisfy the requirement in Section § 112?
Patents
The Other Nobel Prize Controversy
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Patent Examiners Learn New Way to Count. Will it Add Up to Fewer RCEs?
New USPTO Commissioner David Kappos announced on September 30 a Read more ...
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WhoGlue Pokes Facebook with Patent Infringement
WhoGlue Inc., a small Baltimore company that develops and sells software to manage online memberships and facilitate communications between members, filed a lawsuit in the U.S. District Court of Delaware against Facebook on Monday. WhoGlue claims that Facebook continued to infringe on its patent despite Facebook having "notice and knowledge" that WhoGlue’s patent existed.
Article: International Patent Law: Should United States and Foreign Patent Laws be Uniform? An Analysis of the Benefits, Problems, and Barriers
North Carolina Journal of Law and Technology, Volume 10, Issue 2, Page 283 (June 2009)
Abstract
This article blends three areas of law: international law, comparative law and intellectual property. Specifically, this article discusses the benefits and problems associated with harmonizing United States patent laws with foreign systems. It does so by analyzing the historical and contemporary ramifications of uniform patent laws. In addition, it highlights recent attempts in Congress—The Patent Reform Act of 2007—to harmonize United States laws with foreign systems.
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Recent Development: Excessive Reverse Payments in the Context of Hatch-Waxman
North Carolina Journal of Law and Technology, Volume 10, Issue 2, Page 381 (June 2009)
Abstract
Reverse payments, such as the one at issue in Arkansas Carpenters Health & Welfare Fund v. Bayer AG, are controversial because they appear to be nothing more than agreements between competitors not to compete. However, because a patent was involved, the Federal Circuit refused to declare this agreement unlawful—even when the patentee offered to pay the alleged infringer large sums of money to exit the market. The recent introduction of The Preserve Access to Affordable Generics Act is an attempt by Congress to clarify its intent with respect to reverse payments under Hatch-Waxman.
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Article: International Patent Law: Should United States and Foreign Patent Laws Be Uniform? An Analysis of the Benefits, Problems, and Barriers
North Carolina Journal of Law and Technology, Volume 1, Issue 2, Page 283 (June 2009)
Abstract
This article blends three areas of law: international law, comparative law and intellectual property. Specifically, this article discusses the benefits and problems associated with harmonizing United States patent laws with foreign systems. It does so by analyzing the historical and contemporary ramifications of uniform patent laws. In addition, it highlights recent attempts in Congress—The Patent Reform Act of 2007—to harmonize United States laws with foreign systems.
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Article: Standards, Intellectual Property Disclosure, and Patent Royalties After Rambus
North Carolina Journal of Law and Technology, Volume 10, Issue 2, Page 233 (June 2009)
Abstract
The U.S. Federal Trade Commission found that Rambus, a developer of computer memory technologies, failed to disclose information about its intellectual property holdings to other participants in the Joint Electron Device Engineering Council (JEDEC), a private standard-setting organization, during the period in which JEDEC was developing Dynamic Random Access Memory (DRAM) standards. According to the Commission, this failure prevented JEDEC from considering the patent royalties that Rambus would charge in determining whether to incorporate its technology into the standard.
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The continuing saga of the misinterpretation of the patent exhaustion doctrine and the transgenic seed industry
Mitchell and Eddie Scruggs just cannot win. In 2004, agriculture giant Monsanto filed suit against the Scruggs farm for patent infringement because the Scruggses planted roundup-ready soybean and cotton seeds that came from plants grown from purchased seeds. The gene patents in these seeds belong to Monsanto. The Scruggses claimed
Article: Testing the Limits of Procedural Rulemaking: How the Federal Circuit Can Use Tafas v. Dudas to Clarify the Authority of the Patent Office
North Carolina Journal of Law and Technology, Volume 10, Issue 1, Page 203 (February 2009)
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In an effort to reduce the backlog of unexamined patent applications, the United States Patent and Trademark Office created a controversial new set of rules for patent applicants. In Tafas v. Dudas, a Federal District Court judge issued a permanent injunction against the rules, finding their enactment to be outside the Patent Office's authority. On appeal, the Court of Appeals for the Federal Circuit will have the opportunity to define better both the rulemaking authority of the Patent Office and the Circuit's approach to the distinction between substantive and procedural rules.
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Recent Development: The Misinterpretation of the Patent Exhaustion Doctrine and the Transgenic Seed Industry in Light of Quanta v. LG Electronics
North Carolina Journal of Law and Technology, Volume 10, Issue 1, Page 119 (February 2009)
Abstract
The Supreme Court’s recent interpretation of the patent exhaustion doctrine mandates that the transgenic seed industry use contract law instead of patent law to enforce post-sale restrictions. Prior to Quanta Computer, Inc. v. LG Electronics, Inc., the federal district courts and the Federal Circuit held that patent exhaustion was not triggered if a sale was restricted and that post-sale restrictions are enforceable under federal patent law.
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A Petition for Another Look at Inequitable Conduct: After Aventis Pharma S.A. v. Amphastar Pharmaceuticals, Inc.
In a recent holding, the Federal Circuit affirmed a district court’s ruling that patents at issue in Aventis Pharma S.A. v. Amphastar Pharmaceuticals, Inc., 525 F.3d 1334, are unenforceable due to Aventis’ omission of relevant experimental information from its submissions to the U.S. Patent and Trademark office (PTO).
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Article: Conflicting Objectives: The Patent Office’s Quality Review Initiative and the Examiner Count System
NC JOLT Online Edition, Volume 10, Page 28 (January 2009)
Abstract
During fiscal years 2004 and 2005, the United States Patent and Trademark Office implemented an enhanced quality review initiative as an additional level of oversight over the patent examination process. As a result of this initiative, in fiscal year 2006, the patent allowance rate was reduced to 54%, down from a patent allowance rate of 72% in fiscal year 2000. However, this enhanced quality review initiative conflicts with the current examiner production goals or examination quotas.
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State Street Patentability Test Gone
While there is sure to be more to come regarding the opinion handed down by the Court of Appeals for the Federal Circuit in In Re Bilski, much of the blogsphere is already buzzing with opinions and commentary about the case that rejects the test for patentability of business method claims in State Street Bank.
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Techno-Czar
On Monday, President Bush signed a bill into law that creates a point-man (Technology/IP Czar) in the government to continue the fight against piracy. The IP Czar would be in charge of coordinating efforts to fight IP infringement in all areas of IP including copyright and patent.
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Comment: From Telegraphs to Content Protection: The Evolution of Signals as Patentable Subject Matter Under 35 U.S.C. § 101
North Carolina Journal of Law and Technology, Volume 9, Issue 2, Page 243 (July 2008)
Abstract
The patentability of communication signals under 35 U.S.C. § 101 first came before the Supreme Court in relation to Samuel Morse’s telegraph. Contrary to the Court’s ruling in O’Reilly v. Morse, however, the Federal Circuit recently held in In re Nuijten that useful, man-made signals are unpatentable because they do not fit within any of § 101’s enumerated invention categories.
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Recent Development: Equitable Concerns of eBay v. Mercexchange: Did the Supreme Court Successfully Balance Patent Protection Against Patent Trolls?
North Carolina Journal of Law and Technology, Volume 8, Issue 1, Page 81 (December 2006)
Abstract
Within the past decade, companies seeking to purchase intellectual property for the purpose of generating licensing fees have become a major concern for U.S. businesses. These companies are often identified as “patent trolls,” and are perceived to take advantage of successful companies that utilize the technology by demanding often exorbitant licensing fees. The Supreme Court's recent decision in eBay v. Mercexchange rejected the “automatic injunction” rule and thus weakened one of the patent troll's leveraging tools, the permanent injunction.
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Comment: Past the Tipping Point: Reforming the Role of Willfulness in the Federal Circuit's Doctrine of Enhanced Damages for Patent Infringement
North Carolina Journal of Law and Technology, Volume 9, Issue 1, Page 139 (December 2007)
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The Federal Circuit's recent decision in In re Seagate Technology, L.L.C. modified the standard for determining whether a patent has been infringed willfully, but left intact the existing doctrine that requires willfulness to justify enhanced damages under 35 U.S.C. § 284. This Comment presents several arguments as to why the current enhanced damages doctrine should be modified. The U.S. Supreme Court's recent decision in eBay Inc. v. MercExchange, L.L.C. on the availability of injunctive relief under 35 U.S.C. § 283 provides strong support to these arguments.
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Article: The Intellectual Property and Communications Omnibus Reform Act of 1999: An Overview for IP Practitioners
North Carolina Journal of Law and Technology, Volume 1, Issue 1, Page 1 (June 2000)
Abstract
No abstract available.
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Article: Patent Investment Trusts: Let’s Build a PIT to Catch the Patent Trolls
North Carolina Journal of Law and Technology, Volume 6, Issue 2, Page 367 (June 2005)
Abstract
The rising speculation in intangible assets by patent trolls may indicate that patents are ready to evolve to the next level. Just as air space rights and carbon emissions before them, patents could be traded on stock exchanges. This evolution could take the form of a Patent Investment Trust, modeled on the popular Real Estate Investment Trust (“REIT”).
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