Today, the Supreme Court issued its opinion in Helsinn v. Teva. In a unanimous decision, the Court upheld the Federal Circuit’s determination that “on sale” means “on sale”, not “on sale, unless it’s under NDA or we didn’t tell the public about the sale.”
Blog Posts
Congress Weighs In On Qualcomm and Apple At The ITC
by Josh Landau •
The big Qualcomm news this week was the start of the FTC v. Qualcomm antitrust trial in front of Judge Koh.1 But Qualcomm’s first ITC case against Apple has also had significant developments—even though the ITC is shut down and the case is on hold. In particular, a number of members of Congress have…
Comparable Licenses Often Aren’t
by Josh Landau •
One of the more complicated issues in patent law is the issue of damages—the determination of how much money a patent owner receives when they prove infringement and validity. A patent owner, under 35 U.S.C. § 284, will be awarded “damages adequate to compensate for the infringement, but in no event less than a reasonable…
Patent Links and Articles To Read By The Fire
by Josh Landau •
While it might not be as cold this New Year’s as it was last year, that doesn’t mean you can’t settle in to read by the fire. And what better to read about than patents? Here’s what I’ll be taking a look at over New Year’s. Time and the Patent Office First, Professors Michael Frakes…
Don’t Buy Into Qualcomm’s Attempts To Distract From Its Anti-Competitive Behavior
by Josh Landau •
There’s been a lot of discussion about Qualcomm’s recent Chinese injunction against Apple. But that’s a distraction—the real story is, and remains, the trio of lawsuits against Qualcomm for anti-competitive practices that will be conducted over the first half of 2019. First, in January, the Federal Trade Commission’s lawsuit. Next, in April, Apple’s lawsuit. And…
ITC Review of Qualcomm-Apple Decision Is Normal Practice
by Josh Landau •
Last week, the International Trade Commission (ITC) decided to review the decision of the Administrative Law Judge (ALJ) in the Qualcomm v. Apple case at the ITC. Unfortunately, news reports have characterized this as Qualcomm persuading the ITC to review the initial decision, as if it were unusual. It isn’t unusual at all. The Commission…
Delrahim Pulls DoJ Out Of FRAND-SEP Policy Guidance
by Josh Landau •
In a speech today at the Berkeley Advanced Patent Law Institute, United States Assistant Attorney General for the Antitrust Division Makan Delrahim announced that the Department of Justice was withdrawing from its 2013 guidance on remedies for standard-essential patents subject to FRAND commitments. Stating that “[t]here is no special set of rules for exclusion when…
Increase In § 101 Rejections Due Almost Entirely To Rejected Business Methods
by Josh Landau •
Prof. Colleen Chien, along with her student Jiun-Ying Wu, recently published an analysis of the impact of § 101 on patent prosecution. While their analysis clarifies which art units are impacted by § 101 decisions like Alice and Mayo, the published article doesn’t clearly answer the question of how each art unit contributes to the…
USPTO Releases 2018-2022 Strategic Plan
by Josh Landau •
The USPTO released the final version of its 2018-2022 Strategic Plan today. I previously wrote about the flaws in the draft strategic plan. The draft plan did, however, at least note the importance of stakeholder engagement. To assist in this goal, the Office asked for comments on the draft. In fact, the released strategic plan…
Founders On Patents: Madison On The Dangers Of Patents
by Josh Landau •
James Madison is credited with introducing the Patent and Copyright Clause to the Constitution, and defended that clause in Federalist 43, stating “[t]he utility of this power will scarcely be questioned.” But he was well aware that there were dangers to the power, writing in his own papers that the patent monopoly could produce more…