Gibbons Law Alert
As anticipated, Eastman Kodak Co. filed a petition for Chapter 11 bankruptcy relief this morning in the United States Bankruptcy Court for the Southern District of New York. This development followed a recent flurry of patent infringement suits involving Kodak, and on the heels of Kodak’s unrequited efforts to license or sell off its substantial intellectual property (“IP”) portfolio.
In 2006, the Chinese government pledged to foster future innovation in China by promoting science and technology development in key fields and enhancing innovation capacity. In the National Medium- and Long-Term Plan for Science and Technology Development (2006-2020) published by the State Council, China pledged that by 2020 research and development (“R&D”) investment will exceed 2.5% of China’s total GDP, and that progress of science and technology will contribute at least 60 percent to the country’s development.
Coming off a year that included the Smith-Leahy “America Invents Act,” 2012 portends to have some significant developments in IP law. Decisions for IP practitioners and industry to watch for include: the Supreme Court’s decision in Caraco Pharm. Labs. Ltd. v. Novo Nordisk A/S, regarding “use codes” and section viii carve-outs under the Hatch-Waxman Act; the Supreme Court’s decision in Mayo v. Prometheus, regarding patentable subject matter, post-Bilski; and the Federal Circuit’s upcoming en banc decisions in McKesson and Akamai, regarding joint infringement liability.
Gibbons published an IP Law Alert this summer describing the forthcoming Intellectual Property Exchange International (“IPXI”). Along with providing background information about how the IPXI will monetize patents, and the process for listing an IP asset on the IPXI, this post discussed the growing pains associated with starting a financial exchange pegged to IP.
Oral argument was recently heard before the Federal Circuit in the appeal of AstraZeneca Pharms. LP. v. Aurobindo Pharma Ltd. AstraZeneca, along with IPR Pharmaceuticals, Inc., and The Brigham and Women’s Hospital, Inc., (“Plaintiffs) sued ten generic drug companies alleging infringement of US Patent Nos. 6,858,618 (“the ‘618 patent”) and 7,030,152 (“the ‘152 patent”) under the Hatch-Waxman Act. These patents claim methods of treatment using rosuvastatin calcium, which Plaintiffs market as Crestor®.
Gibbons P.C. is proud to announce that two practices within its Intellectual Property Department have achieved national and metropolitan rankings in the 2012 edition of Best Lawyers®, the oldest and most respected peer-review publication in the legal profession. In addition, Department Chair David E. De Lorenzi has been individually ranked in three different IP categories.
In the recent In re Klein decision, the Federal Circuit reversed the Board of Patent Appeals and Interferences’ decision because five separate obviousness rejections were not based on analogous art as compared to the claimed invention. In re Klein, 647 F.3d 1343, 1345 (Fed. Cir. 2011). The claimed invention was a device for preparing sugar-water nectar for various species comprised of a vessel having a movable partition capable of separating water and sugar until it was desired to mix them. Id. at 1345-46. The partition could be inserted into the vessel at different tracks so that, when filled to a predetermined level, a nectar of the desired concentration of sugar would result from mixing the contents. Id. at 1350-51.
The New Jersey Intellectual Property Law Association (“NJIPLA”) will be hosting its first annual “Electronics, Telecom and Software Patent Practice Update” next Wednesday, November 9, 2011, from 12:00-5:15 pm at the New Brunswick Hyatt. This informative event is co-chaired by Robert E. Rudnick, a Director in the Gibbons Intellectual Property Department and Vice President of the NJIPLA, who will also be a panelist at the event speaking on the recently enacted Leahy-Smith America Invents Act and its impact on patent protection in the electrical arts.
Following last month’s enactment of the Leahy-Smith America Invents Act (“AIA”), significant limitations on multidefendant infringement suits are now in effect. Specifically, the joinder provision of the AIA, 35 U.S.C. § 299, permits accused infringers to be joined in one action only if any right to relief is asserted against the parties jointly, severally, or arising out of the same transactions or occurrences; and, common questions of fact as to all defendants will arise in the case. Simply put, patentees can no longer sue multiple defendants in the same litigation based solely on allegations that they each have infringed the patent(s)- in-suit.
Among other changes, the America Invents Act (“AIA”) includes the new 35 U.S.C. § 299. This statute purports to reduce the ability of a patent owner to join multiple, unrelated defendants in a single action, a tactic often used by litigious non-practicing entities (“NPEs”), who press for nuisance value settlements. In addition, the AIA commissioned the Government Accounting Office (“GAO”) to study the consequences of NPEs, to include their costs, benefits and economic impact.