NETFLIX, INC. v. DivX, LLC

Before Hughes, Stoll, and Stark. Appeal from the Patent Trial and Appeal Board.

Summary: Petitioner was not required to explicitly identify secondary reference’s “field of endeavor” using specific language when briefing sufficiently communicates the field of endeavor.

On June 2, 2023, drug manufacturer Shire US Inc. and related entity Shire LLC (collectively, “Shire”) asked the Supreme Court to review an Eleventh Circuit ruling involving the interplay between state tort law and FDA regulations regarding drug labels. As framed by Shire, the question presented to the Supreme Court is: “Whether a state-law claim is preempted if it places a duty on a drug manufacturer to unilaterally change FDA-approved language that appears in the Highlights section of a drug label.” In order to appreciate what is at stake in this case, a brief summary of the key facts and procedural posture is necessary.

Medtronic Minimed, Inc. and Minimed Distribution Corp. (“Medtronic”) were sued in a class action complaint in the Central District of California on August 30, 2023, by users of Medtronic’s InPen® system. The lawsuit alleges that Medtronic engaged in “transmission and disclosure of Plaintiff’s and Class Members’ personally identifiable information (‘PII’) and protected health information (‘PHI’) [collectively, ‘Private Information’]… to Google[] and other third parties via tracking and authentication technologies – including Google Analytics (and others).”

On August 15, 2023, the Food and Drug Administration (FDA) issued its updated guidance on informed consent for clinical investigations. The FDA’s updated guidance is titled Informed Consent Guidance for IRBs, Clinical Investigators, and Sponsors. Informed consent enables prospective subjects to understand the relevant information concerning a clinical investigation while also providing them the opportunity to pose questions, deliberate on participation, and grant voluntary agreement.

Recent reports, including one by PitchBook, indicate that both venture capitalist funding for medtech companies and the variety of medtech companies receiving venture capitalist funding has increased since the first quarter of 2023.

IN RE CELLECT, LLC

Before Lourie, Dyk, and Reyna. Appeal from the Patent Trial and Appeal Board.

Summary: Obviousness-type double patenting analyses for patents with Patent Term Adjustments are based on the adjusted expiration date of the patent.

VOLVO PENTA OF THE AMERICAS, LLC, v. BRUNSWICK CORP.

Before Moore, Lourie, and Cunningham. Appeal from the Patent Trial and Appeal Board.

Summary: The Board must consider the combined weight of multiple objective indicia of non-obviousness and must provide an explanation for the weight attributed to each objective indicia proven by the patent owner.

INCEPT LLC v. PALETTE LIFE SCIENCES, INC.

Before Newman, Schall, and Taranto. Appeal from the Patent Trial and Appeal Board.

Summary: No teaching away when art does not disparage invention and free samples cannot count as commercial success.

Software is increasingly used as a medical device, transforming the healthcare industry with the goal of improving patient outcomes. However, developing software as a medical device involves navigating complex and evolving regulatory frameworks. Regulatory frameworks can complicate the already complex problem of innovation in software and can often run roughshod over the distinctions between software, artificial intelligence, machine learning, and deep learning. Development in each of these areas is known to progress in leaps and pauses and can occur at any point from data collection to testing, design, development, or deployment. Yet as human involvement leads to opportunities for technological improvements, human touchpoints can also lead to mistakes and biases.

Medical Device companies often need the U.S. Food and Drug Administration (FDA) to approve “indications for use” of their products–for use selling them in the U.S. Those same companies often seek U.S. patent protection so that they can profit from their inventions underlying those same products. In both cases, the companies seek to persuade federal government agencies to approve their requests.