It has been a few years since the Supreme Court decision in the case B&B Hardware, Inc. v. Hargis Industries, Inc., and we are beginning to see the aftermath in the district courts. In B&B Hardware, the Supreme Court held that decisions of the Trademark Trial and Appeal Board (“TTAB”) regarding whether a trademark should be entitled to federal registration can have a preclusive effect in trademark infringement actions in district court. Specifically, the Supreme Court held that “[s]o long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before the district court, issue preclusion should apply.” See B&B Hardware, Inc. v. Hargis Industries, Inc., 135 S. Ct. 1293, 1310 (2015).
The FDA recently issued a draft guidance document intended to “to ensure that least burdensome principles are implemented for all device-related applications and interactions with FDA.”
Before Moore, O’Malley, and Wallach. Appeal from the Eastern District of Texas (Judge Gilstrap).
Summary: Claims directed to summarizing and presenting information on display interfaces for electronic devices are patent eligible under 35 U.S.C. § 101 when they are directed to a specific improvement over prior systems rather than an abstract idea.
The PTAB has determined that a patent owner may not moot a CBM proceeding by disclaiming claims post-institution. Emerson Electric Co. v. SIPCO, LLC, CBM2016-00095, Paper 39 (P.T.A.B. Jan. 16, 2018).
Before Dyk, Schall, and Reyna. Appeal from the Patent Trial and Appeal Board.
Summary: Final written decisions by an administrative tribunal invalidating a patent can have a preclusive effect.
Before Newman, Dyk, and O’Malley. Appeal from the Patent Trial and Appeal Board.
Summary: The PTAB may enter an adverse judgment against a patent owner where, before issuing an institution decision on an IPR petition, the patent owner disclaims all challenged claims but does not request adverse judgment.
The U.S. Food and Drug Administration has announced approval of Abbott’s FreeStyle Libre flash glucose monitoring system for certain diabetes patients.
In an EPO opposition proceeding challenging several of Broad’s European patents, the EPO’s Opposition Division revoked Broad’s foundational CRISPR patent, EP2771468. This EPO decision will likely lead to the revocation of several more – but not all – of Broad’s European patents.
Before Prost, Renya, and Wallach. Appeal from the Patent Trial and Appeal Board.
Summary: A patent owner cannot retroactively bring a continuation-in-part patent within the scope of § 121 during reexamination by removing the new matter and designating it as a divisional.
The FDA may begin certifying the laboratories that produce lab-developed tests (“LDTs”) instead of drafting regulatory rules to cover the tests themselves.
