Patent Litigation

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Senators Excoriate Perceived WDTX Venue Abuses

Back in September, I previewed the PTAB reform discussions that eventually issued as the Restoring the America Invents Act.  The Act, clearly a rebuke of the Iancu administration’s changes to AIA trial practices, also included a provision encouraging district court stays in view of PTAB challenges. The unspoken concern behind the stay provision is the growth of patent litigation in the WDTX . If there was any doubt about that rationale, the Senate Judiciary has just explicitly put WDTX’s Judge Albright directly in its cross-hairs.
Continue Reading Senate Judiciary Characterizes WDTX Practices as Unseemly & Inappropriate

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IAM’s IP 2021 – November 2- 3rd  (virtual)

Following a year of global change and pandemic-related disruption, the Biden administration’s position on IP policy is being closely scrutinized by the patent community. With key leadership positions still awaiting candidate nominations, what is on the horizon for patent law and policy in 2021 and beyond?

IAM’s…

Do Private Arbitration Agreements Undermine Public Policy?

With Congress considering “encouraging” stays of patent litigation pending concurrent PTAB review, licensors may begin to look to contractual  mechanisms to avoid a PTAB filing altogether.  The strategy is not unprecedented, and may provide a way for district courts to enjoin the agency from moving forward with AIA trials.

But, should private agreements thwart mechanisms designed to remove improvidently granted patent monopolies?
Continue Reading Avoiding the PTAB by Private Agreement?

October Webinar to Debrief on Leahy Bill

Senator Patrick Leahy (D) VT and Senator John Cornyn (R) TX have jointly drafted a new bill entitled the “Restoring the America Invents Act.” The Bill proposes to roll-back recent directives and policies of former USPTO Director Iancu, most notably discretionary denials of AIA trial proceedings in view…

Same Questions, Different Rubric?

Senator Patrick Leahy has now proposed draft legislation to add Obviousness-Type Double Patenting (OTDP) to IPR jurisdiction. The argument for adding this potential ground is that it is an important control to combat improperly extended drug monopolies (the justification underlying much of the legislative proposal).  Whether this provision makes it to law is far from clear given the likely push back from Bio/Pharma.

In the meantime, a Pharma dispute recently argued that OTDP is basically the same PTAB obviousness analysis under a different rubric.  An awkward argument given the coming storm.
Continue Reading PTAB Estoppel & Double Patenting?

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Bill Released – Iancu Era Rebuked

Well, the wait was not that long after all.  Senator Leahy -VT (D) (with co-sponsor Senator Cornyn – Tx (R)) has today released the draft bill entitled “Restoring the America Invents Act.”  The bill includes most of what I expected, with a handful of additional tweaks.

Below is a brief overview of all of the proposed changes.
Continue Reading Restoring the America Invents Act – What You Need to Know

CAFC Cautions Against IPR Stay Considerations in Venue Dispute

A mandamus is considered an extraordinary remedy — especially in the venue context where district courts are accorded broad discretion.  Nevertheless, where a motion to transfer presents an indisputable right, mandamus is proper. Recently, the Federal Circuit has been uncharacteristically outspoken that the WDTX is doing it wrong.

The most recent WDTX mandamus on this issue, while unsuccessful, found the Federal Circuit once again pointing out improper analysis.
Continue Reading Judge Albright Faulted for Considering IPR Stay Likelihood in NDCA

AIA Revisited

With last week’s 10-year anniversary of the Leahy-Smith America Invents Act (AIA), and Senator Leahy still a powerful voice on the Senate Judiciary Committee, the timing may be right to refine the decade old statutes.  Indeed, over the past few months there have been a number of discussions inside the Beltway to consider potential updates.

While there will always be a small, vocal minority that would like to see the AIA go away entirely, it seems that only slight refinements to the existing statutes are on the foreseeable horizon.
Continue Reading The AIA at 10 — Congress Considers a Tune Up?

The Return of In-Person IP Conferences

In the words of princess Elsa…for the first time in forever.…there are a number of in-person IP conferences slated for this fall. (I’ve been cooped up with kids, I make Frozen references now)

First up is IPWatchdog Live 2021 September 12-14 in Dallas, Texas. The multi-day IPWatchdog…