Gibbons Law Alert

Gibbons Law Alert

Category: Patent

Following Kappos v. Hyatt, Supreme Court Denies Certiorari in Streck v. R&D Systems

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Posted in Patent / USPTO

On May 23, 2012

The Supreme Court on Monday denied Research & Diagnostics Systems Inc.’s petition for a writ of certiorari to consider the degree of deference that should be afforded administrative decisions of the PTO on appeal to Federal District Court when new evidence is presented. Streck Inc. sued R&D Systems, a blood test technology company, for patent infringement in Federal District Court. A Nebraska jury held R&D Systems liable for infringement following a finding that it had failed to establish a claim of priority over the disputed patents. In a parallel interference proceeding, the PTO awarded priority to R&D Systems. Streck appealed the PTO ruling in District Court under 35 U.S.C. § 146, where a patent holder may appeal a PTO determination concerning priority made pursuant to an interference proceeding.

Twitter’s Twist on Patents

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Posted in Patent

On May 17, 2012

Last month, Twitter introduced a draft of a radical employee patent assignment plan that the company hopes will play a part in a world “that fosters innovation, rather than dampening it.” The popular social media platform hopes that this initiative will affect how companies use their patents, which according to Twitter, sometimes impedes the innovation of others.

Recent Impact of Reexams on Stays in E.D. Texas

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Posted in Patent

On May 15, 2012

A district court’s inherent powers to control its docket and to stay proceedings are well-settled, harkening back to at least Landis v. N. Am. Co., 299 U.S. 248 (1936). Within the Eastern District of Texas, in determining whether a stay is warranted pending reexamination in a patent litigation, district courts typically consider factors such as whether a stay will unduly prejudice one party; whether a stay will simplify the issues in the case; and whether discovery is complete and a trial date has been set. E.g., Soverain Software LLC v. Amazon.com, Inc., 356 F.Supp.2d 660, 662 (E.D.Tex.2005).

Intellectual Property and the U.S. Economy

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Posted in Patent / Trademarks

On April 26, 2012

The U.S. Commerce Department recently released a comprehensive report, entitled “Intellectual Property and the U.S. Economy: Industries in Focus,” which identified 75 industries as IP intensive. The Report found that IP at such industries supported at least 40 million jobs in 2011. As of 2010, IP comprised more than $5 trillion dollars, or 34.8 percent of, U.S. gross domestic product (GDP) and accounted for 27.1 million American jobs. Between 2010 and 2011, the U.S. economic recovery resulted in a 1.6% increase in direct employment in IP-intensive industries, faster than the 1.0% growth in non-IP-intensive industries.

Patent Litigators: Be Careful What You Plead

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Posted in Patent

On April 25, 2012

Last month, in a sua sponte Memorandum Order in Technology Licensing Corp. v. Pelco, Inc., 11-cv-8544 (N.D. Ill. Mar. 5, 2012), Senior U.S. District Court Judge Milton I. Shadur recently took defendant to task for its answer and counterclaim. In paragraphs 3, 5 and 6 of its answer defendant pled the boilerplate language that it was without knowledge or information sufficient to form a belief about the truth of the allegations of paragraph [ ] and therefore denies those allegations.” Judge Shadur rebuked defendant for this latter clause, stating it was “oxymoronic” that a party could assert in good faith that it did not have enough information to form a belief about an allegation, and then proceed to deny it.

Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel

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Posted in International Trade Commission / Patent

On April 23, 2012

On April 26, the Gibbons Institute of Law, Science & Technology, Seton Hall University School of Law, and the New Jersey Intellectual Property Law Association will present, “Patent Litigation at the ITC: Views from the Government, In-House Attorneys and Outside Counsel.” Throughout the afternoon, two panels comprised of various government officials and in-house counsel will come together to share their views on patent litigation and how it is approached in their specific practice areas.

Supreme Court Affirms Kappos v. Hyatt, Paving the Way for New Evidence and Expansive Review of Patent Applications

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Posted in Patent / USPTO

On April 19, 2012

Yesterday, in a unanimous decision, Kappos v. Hyatt, the Supreme Court affirmed a ruling of the Court of Appeals for the Federal Circuit holding that in a civil action under 35 U.S.C. § 145, a patent applicant has the right to present new evidence to the District Court regardless of whether that evidence previously was or could have been presented during the proceedings before the PTO. Further, when such new evidence is presented, the District Court must review any related factual conclusions affected by the new evidence de novo, without giving deference to any prior decision or finding of the PTO.

Patent Office Introduces After Final Consideration Pilot

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Posted in Patent

On April 18, 2012

On April 2, 2012, the United States Patent and Trademark Office announced the implementation of a new After Final Consideration Pilot. The AFCP will allow an examiner to consider and enter amendments submitted after a final rejection that will require new searching by the examiner. For a long time the Patent Office has been monitoring the length of time that applications have been pending and the increasing number of applications filed. The Patent Office has proposed numerous solutions that attempt to bend the application curve, including accelerated examination, pre-appeal brief conferences, and limiting the number of requests for continued examinations and continuation applications. The AFCP is another effort that has the potential to help reduce the application volume.

Robert E. Rudnick to Speak at Joint Patent Practice Seminar on April 17

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Posted in Patent

On April 16, 2012

Robert E. Rudnick, a Director in the Gibbons Intellectual Property Department, will be speaking at the Annual Joint Patent Practice Seminar on April 17, 2012, at the New York Marriott Marquis on the Federal Circuit’s decision in General Protecht Group, Inc. v. Leviton Mfg. Co., Inc. The case involved a forum selection clause in a patent settlement agreement.

CAFC Chief Judge Rader on Curbing E-Discovery, Part II

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Posted in E-Discovery / Patent

On April 13, 2012

In succession to remarks he made this past Fall about the soaring costs of electronic discovery in IP cases and unveiling the Model Order Regarding E-Discovery in Patent Cases, Federal Circuit Chief Judge Randall Rader recently told the ABA Section of IP Law that both the bar and the bench together, must continue to rein in the high costs of e-discovery. Chief Judge Rader suggested that attorneys’ need to limit their e-discovery requests and courts should consider implementing rules to facilitate efficient and cost effective discovery, as many have begun to do.

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