Before Moore, Plager, and Stoll.  Appeal from the United States District Court for the Southern District of Florida.

Summary: In challenging compliance with the marking requirement of § 287(a), an accused infringer need only identify the unmarked products sold or licensed by the patentee that it believes are covered by the patents in suit, at which point the burden shifts to the patentee to show that the identified products do not practice the patented invention.

Before Wallach, Chen, and Stoll.  Appeal from the United States District Court for the District of Delaware.

Summary: Even if a patentee’s initial complaint was reasonable, the patentee can be liable for attorney fees under 35 U.S.C. § 285 if it does not reassess the merits of its case in view of new controlling law.  

In a recent development with the ongoing complex litigation involving Janssen Biotech’s arthritis biologic medicine Remicade (infliximab) and Celltrion’s biosimilar,[1] Celltrion’s partner Pfizer has filed a suit against Janssen’s parent company Johnson & Johnson (J&J) in the Eastern District of Pennsylvania alleging that through anticompetitive pricing and exclusionary contracts with insurers and hospitals, J&J sought to preserve a monopoly over its sale of Remicade.[2]

On November 16, 2017, the USPTO issued new procedures (“Standard Operating Procedure 9”) for governing cases remanded from the Federal Circuit. These procedures are applicable to all decisions remanded from the Federal Circuit to the PTAB, including decisions resulting from IPR, PGR and CBM trials as well as ex parte appeals and reexamination proceedings.  

On November 6^th, 2017, the U.S. Food and Drug Administration (FDA) approved the drug Zelboraf (vemurafenib), for the treatment of Erdheim-Chester Disease (ECD)[1].  The FDA approved Zelboraf under Priority Review, Breakthrough Therapy, and Orphan Drug designations for the ECD indication. 

Before PROST, WALLACH, and TARANTO.  Appeal from the District of Delaware

Summary: (1) A party may not avoid inducement based on “substantial non-infringing uses,” and (2) prosecution history estoppel does not apply to a narrowing amendment in a parent application that was not present in the patent-in-suit.

The USPTO announced that the official fees for IPR and PGR will increase significantly starting on January 16, 2018.  See 82 Fed. Reg. 52780, 52807 (Nov. 14, 2017).  

On October 16, 2017, the Federal Circuit affirmed the district court’s ruling that the claims in Secured Mail Solutions LLC, v. Universal Wilde, Inc. (“Secured Mail”) were directed to patent-ineligible subject matter under 35 U.S.C. § 101.  This ruling provides another data point as to what level of concreteness and specificity courts should consider when analyzing patent-eligibility questions under § 101.

The Saint Regis Mohawk Tribe’s recent motion to terminate pending IPRs on patents purported to cover Allergan’s Restasis® product has spurred two parties to seek authorization from the PTAB to file amicus briefs.  

Music festivals, film festivals, food festivals….festivals are popular venues for entertainment and each festival strives to offer the consumer a unique experience. Of course, at most festivals, clothes must be (or should be) worn, and festival-goers are a ready market for apparel retailers. However, retailers should be aware of one aspect of trademark law that can put a damper on the festivity: claims of false association, sponsorship, endorsement, or license.