On Monday, the PTAB made clear that the ultimate outcome of the Fintiv rule championed by Director Iancu is the elimination of inter partes review (IPR) as a viable alternative to challenging patents in litigation. RAI sued Philip Morris on April 9th, 2020. Less than a month later, on May 8th, 2020, Philip Morris filed…
Blog Posts
Trouble In Plaintiff’s Paradise?
by Josh Landau •
There are signs that, despite Judge Albright’s best efforts, the rest of the world might not support turning the Western District of Texas into another NPE haven like the Eastern District in its glory days. After Judge Albright’s efforts to make sure Waco was “open for business for patent cases”, NPEs flocked to the Waco…
Cert Granted in Arthrex Case On PTAB Appointments
by Josh Landau •
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…
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…
Guest Post: FRAND, RAND, & the Problem at Hand: Increasing Certainty in Infringement Damages for Standard-Essential Patents
by patentprogress.org •
This article was written by guest author Sam Howard, a 3L at Boston University School of Law and the winner of the 2019-2020 Patent Progress Writing Competition. The article is a shortened version of his full contest entry, which will be published in the Boston University Journal of Science and Technology Law in 2021, and…
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…
Guest Post: We Must Protect Access to Vital Telemedicine Services
by patentprogress.org •
Saul Anuzis is president of 60 Plus Association. Seniors have been taking advantage of telemedicine services, often accessed via their smartphones, tablets or laptops, for some time now. But the coronavirus has put that trend into overdrive, as more older Americans look for ways to stay safe while still getting the medical care they need.
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…