Supreme Court Declines to Further Deal with 101

On January 13, the Supreme Court denied certiorari in five additional patent cases involving 101, including Athena, Vanda, and Berkheimer. Many sides, including industry, academics, and the government, were encouraging the Supreme Court to uptake at least one case in order to help clarify or define the Alice/Mayo framework. However, even given the pressure, the Supreme Court still denied every case. Further, […]

Supreme Court Passes on 101 Patent Eligibility

By Kirk M. Hartung

On January 13, the US Supreme Court denied the petition for certiorari by Athena Diagnostics seeking the highest Court’s review of patent eligibility under 35. USC 101. The petition relates to the en banc decision by the Court of Appeals for the Federal Circuit in Athena Diagnostics v. Mayo on July 3, 2019, wherein the appellate Court […]

When YouTubers Cry: Prince Concert Videos Deemed Not Fair Use

By Nicholas J. Krob

Last week, U.S. District Judge Leo T. Sorokin granted summary judgment in favor of the estate of the late artist Prince regarding its claim of copyright infringement against Kian Andrew Habib, who had previously posted six Prince concert videos to his YouTube channel. In doing so, Judge Sorokin rejected Habib’s fair use defense, claiming Habib’s […]

Notable Works Entering the Public Domain in 2020

By

The term “public domain” refers to creative materials that are not protected by intellectual property laws such as copyright, trademark, or patent laws. The public owns these works, not an individual author or artist. Anyone can use a public domain work without obtaining permission, but no one can ever own it. Currently, a copyright’s term […]

Federal Circuit Clarifies Standard for Determining Nexus Between Claims and Secondary Considerations

By Julie L. Spieker

On December 18, 2019, in Fox Factory, Inc. v. SRAM, LLC, the Federal Circuit (the “Court”) vacated and remanded the Patent Appeal Board’s (the “Board”) obviousness determination. Fox challenged SRAM’s patent for bicycle chain rings in an inter partes review. The Court found that the Board applied the wrong standard for determining whether or not challenged […]

SUPREME COURT DENIES USPTO ATTORNEY FEES UNDER 35 USC 145

By Kirk M. Hartung

On December 11, 2019, the US Supreme Court ruled against the US Patent & Trademark Office’s recent practice of demanding its attorney fees for patent applications appealed to the U.S. District Court, regardless of whether the Patent Office won or lost.  See Peter v. Nantkwest, Inc., No. 18-801. 35 U.S.C. 145 provides that a patent applicant dissatisfied […]

“T” is for Tesla and Trademark

By Sarah M.D. Luth

Elon Musk recently revealed that his company “Tesla” was almost branded “Faraday.” On December 1, Musk tweeted “Tesla was almost called Faraday, as [the] original holder of Tesla Motors trademark refused to sell it to us!” When another Twitter user asked how Tesla eventually got the rights to the name, Musk responded “We sent the nicest […]

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 […]

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 […]