This week, the Supreme Court granted certiorari in a set of related cases between Arthrex and Smith & Nephew, as well as the federal government. The cases revolve around one fundamental question: are judges of the Patent Trial and Appeal Board (PTAB) principal officers of the United States? That question controls the constitutionality of their…
Joshua Landau
Joshua Landau is the Patent Counsel at the Computer & Communications Industry Association (CCIA), where he represents and advises the association regarding patent issues. Mr. Landau joined CCIA from WilmerHale in 2017, where he represented clients in patent litigation, counseling, and prosecution, including trials in both district courts and before the PTAB.
Prior to his time at WilmerHale, Mr. Landau was a Legal Fellow on Senator Al Franken’s Judiciary staff, focusing on privacy and technology issues. Mr. Landau received his J.D. from Georgetown University Law Center and his B.S.E.E. from the University of Michigan. Before law school, he spent several years as an automotive engineer, during which time he co-invented technology leading to U.S. Patent No. 6,934,140.
Follow @PatentJosh on Twitter.
Posts by Josh Landau
Forum Selling and Judge Shopping—How Two Texas Districts Compete For NPE Cases
by Josh Landau •
Judge Gilstrap of the infamously NPE-friendly Eastern District of Texas used to handle one out of every four patent cases in the entire United States. The Eastern District as a whole handled more than 40% of all patent cases nationally, despite only having about 1% of the nation’s population. After the Supreme Court’s 2017 decision…
Unwired Planet Decision May Lead To Crossed Wires On SEP Royalties
by Josh Landau •
Last week, the UK Supreme Court ruled that it was legally permissible for UK courts to set worldwide license rates for patents that are subject to fair, reasonable, and non-discriminatory license (FRAND) obligations. The decision is likely to have worldwide ramifications—and create worldwide chaos in SEP licensing.
Paycheck Protection Recipients Among NPE Targets
by Josh Landau •
The Paycheck Protection Program (PPP) is a federal business lending program established by the 2020 CARES Act, intended to help small businesses retain jobs during the pandemic. In order to receive funds, companies applied and explained how many jobs they would save with the money they received. All of that data is publicly available. Cross-referencing…
Reps. DelBene and Schweikert Introduce Important Bipartisan ITC Reform Bill
by Josh Landau •
Last week, Representative Suzan DelBene (D-WA) and Representative David Schweikert (R-AZ) introduced a bipartisan bill that would return the International Trade Commission (ITC) to a focus on its mission of protecting American industry from unfair foreign competition. H.R. 8037, the “Advancing America’s Interests Act” (AAIA), would reform both the domestic industry and public interest inquiries…
Comments Emphasize Flaws In PTO Proposal To Remove Pre-Institution Presumption
by Josh Landau •
Recently, the Patent and Trademark Office (PTO) proposed a concerning new rule. It would create serious due process problems, violate the Administrative Procedure Act (APA) by changing an agency position without justification, increase the cost of inter partes review (IPR), and make it harder to invalidate bad patents in IPR. Given all these problems, it…
Federal Circuit Holds That PTAB Should Consider § 101 When Reviewing Proposed Amended Claims
by Josh Landau •
In today’s Uniloc v. Hulu decision, the Federal Circuit held that the PTAB is permitted to consider all issues of patentability, including § 101 (and presumably including § 112), when a patent owner proposes new claims in an inter partes review (IPR). While a petitioner can only file an IPR petition based on § 102…
New Federal Circuit Appeal Claims PTAB Unconstitutional Because Of Fee Funding—But Ignores The Patent Examination Process
by Josh Landau •
In a recently filed brief in the Federal Circuit case New Vision Gaming v. SG Gaming, the appellant argues that the PTAB is unconstitutional because the fees charged for the proceeding create a bias towards institution. Specifically, New Vision Gaming claims that PTAB judges stand to benefit from institution and therefore it’s a violation of…
Counterproductive Patent Incentives
by Josh Landau •
Earlier this year, a pair of economists, Jay Bhattacharya and Mikko Packalen, published a research paper proposing an explanation for why scientific progress appears to have slowed. Their theory? An overemphasis on citation count, h-index, and similar metrics for scientists incentivizes them to pursue safe, late-stage research, not the scientific exploration needed to create the…
New Report Confirms IPR Has Had Significant Positive Impacts On U.S. Industry
by Josh Landau •
A recent report, prepared by economists at the Perryman Group, confirms what has long been stated to be the case—inter partes review (IPR) has positively impacted the U.S. economy. In 2017, on the five-year anniversary of IPR, I calculated an estimate of the legal savings that IPR had generated from 2012 to 2017. I estimated…