Before O’Malley, Taranto, and Stark; Partial En Banc Decision before Prost, Newman, Lourie, Dyk, Moore, O’Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll. Appeal from the Patent Trial and Appeal Board.
Summary: 35 U.S.C. § 315(b)’s time bar applies to bar institution when an IPR petitioner was served with a complaint for patent infringement more than one year before filing its petition, but the district court action in which the petitioner was so served was voluntarily dismissed without prejudice.
Before Reyna, Wallach, and Hughes. Appeal from the District Court for the Eastern District of Texas.
Summary: When the only unconventional feature of the patent claim is what has already been determined to be an abstract idea, the patent claim is ineligible under § 101.
Before O’Malley, Mayer, and Reyna. Appeal from the U.S. District Court for the District of Delaware.
Summary: A case may be exceptional if: (1) fact witnesses are compensated based on the outcome of the case, (2) relevant documents are destroyed, or (3) asserted patents were improperly revived during prosecution. However, an award of attorneys’ fees must have some causal connection to the misconduct.
Before Prost, Bryson, and O’Malley. Appeal from the United States International Trade Commission (“ITC”).
Summary: Evidence intrinsic to a patent may be sufficient to overcome the presumption that § 112 ¶ 6 does not apply.
The Los Angeles-based medical device company BioSig Technologies, Inc. announced in a press release the FDA 510(k) clearance of its PURE EP System, which is designed to aid electrophysiology procedures, such as cardiac ablation for treating atrial fibrillation.
MaxQ-AI (previously known as MedyMatch) recently filed for an $8 million IPO. According to Nasdaq, MaxQ-AI filed confidentially on February 13. The prosepectus filed with the SEC describes MaxQ-AI as “a clinical stage artificial intelligence, or AI, company specializing in improving diagnostic accuracy through deep learning technology.” MaxQ-AI is currently classified as an “emerging growth company” under the 2012 JOBS Act (meaning it had revenues of less than $1.07 billion last fiscal year). MaxQ-AI’s CEO is Gene Saragnese.
On July 13, 2018, the Federal Circuit decided Jazz Pharmaceuticals, Inc. v. Amneal Pharmaceuticals, LLC, affirming the Patent Trial and Appeal Board (PTAB)’s finding of invalidity of certain claims of seven Orange Book-listed patents for Xyrem®.
Before Prost, Dyk, and O’Malley. Appeal from the Patent and Trial Appeal Board.
Summary: An IPR petitioner lacks standing to appeal an adverse decision by the Board if it sells no infringing products and there is no risk of future infringement or infringement allegations by the patentee.
Before Lourie, O’Malley, and Taranto. Appeal from the United States District Court for the Northern District of Texas.
Summary: Where remand of post-reexamination claims that issued during the pendency of an appeal would be futile, the Federal Circuit may address the claims as they emerge from reexamination.
In Cosmetic Warriors v. Pinkette Clothing, the Ninth Circuit addressed the availability of laches in trademark infringement and cancellation actions under the Lanham Act.
Cosmetic Warriors Limited (CWL) is a cosmetics retail company, which owns almost 1000 LUSH retail stores worldwide and has been operating in the U.S. since 2002. CWL owns multiple U.S. trademark registrations, including registrations of LUSH on perfumes and hair services.
