Non-obviousness: when failure equals success

A recent Federal Circuit Court decision demonstrates that evidence of prior failures to achieve desired results can be potent evidence of lack of predictability in a field, resulting in the non-obviousness of using a compound to treat a specific cancer, even though the drug target was identified as effective in a test tube. The decision, […]

If You Pop, You Better Stop

By Sarah M.D. Luth

In the latest battle of branding, the Italian government has confiscated approximately 250 tubes of the “Prosecco & Pink Peppercorn” flavored Pringles from several grocery stores in the Veneto region. The Prosecco flavored Pringles were seized on the grounds that the use of the term “Prosecco” was allegedly not approved by the wine’s consortium of […]

Fighting Against 170 Years of Prior Inaction—Uphill Battle for the USPTO in Recovering Attorneys’ Fees

By Blog Staff

Oral arguments commenced on October 7, 2019 in Peter v. NantKwest at the Supreme Court of the United States. For a brief summary of the issues, see the author’s previous post here. Appearing before the Supreme Court were Malcolm Stewart, representing the United States Patent and Trademark Office (USPTO), and Morgan Chu, representing NantKwest, Inc. […]

Faster Patent Application Examinations for 2019

By Kirk M. Hartung

The US Patent and Trademark Office (USPTO) has been working for many years to improve patent examination times. Processing and examining patent applications in a high quality and timely manner has been an important aspect of the USPTO 2018-2022 Strategic Plan. For the 2019 fiscal year ending in September, the USPTO has met their goal for […]

Trademarks: Property Plus Insurance

By Gregory Lars Gunnerson

Intellectual property is a category of property that includes intangible creations of the human intellect. It is widely accepted patents, copyrights, and trademarks confer an exclusive right. Unlike patents and copyrights, the constitutional foundation for trademark law is the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, rather than the Intellectual Property Clause, […]

US Courts Tripping over TRIPS

This summer, the Australian Federal Court went the other way in Sequenom, Inc. v. Ariosa Diagnostics, Inc. than the US, finding that the method of detecting fetal DNA in maternal blood to be eligible subject matter and that the patent was valid and infringed. While the Federal Circuit described the invention as “truly meritorious” and […]

Walking Alone: Liverpool FC Fails to Obtain Namesake Trademark

By Nicholas J. Krob

English Premier League soccer club Liverpool FC may have scraped by with a victory against Sheffield United last weekend, but that luck does not appear to have extended to the U.K. Intellectual Property Office.  Earlier this year, the club announced that it had submitted an application with the IPO to register LIVERPOOL as a trademark […]

A Trademark Is Insurance, Not Property

By Gregory Lars Gunnerson

It is widely accepted patents and copyrights confer a Constitutional exclusive right. See the Intellectual Property Clause, U.S. Const., Art. I. § 8, cl. 8. Unlike patents and copyrights, the constitutional foundation for trademarks is the Commerce Clause, U.S. Const., Art. I, § 8, cl. 3. Thus, the trademark right may conceivably be a property right, while patents and […]

A Simple Fix to §101 with Arbitration

By Kirk M. Hartung

This summer’s decision by the Federal Circuit in Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC, highlights the consensus that something needs to be done regarding the current state of the law of patent eligibility under 35 U.S.C §101. In particular, the judicially created exceptions to patentability under 101 are laws of nature, natural phenomena, […]

Playing the Numbers Game on U.S. Patent Office Appeals and Trials

Numbers don’t always tell the story, but they can provide interesting highlights. The United States Patent & Trademark Office (USPTO) tracks various statistics of patent appeals and trials. The mid-year statistics in 2019 provide an interesting look at the direction of the USPTO. Appeal results remain largely the same, with a longer look at trial […]