USA, Fitzpatrick, Cella, Harper & Scinto updates

Intellectual Property

Contributed by Fitzpatrick, Cella, Harper & Scinto
Federal Circuit rules on patent-eligible "improvement to computer functionality"
  • USA
  • September 11 2017

The Federal Circuit recently reversed a district court's determination that a patent for a computer memory system was invalid because it was directed to a patent-ineligible abstract idea. Referring to other recent decisions on computer-related claims, the Federal Circuit majority instead concluded that the patent was directed to a patent-eligible "improvement to computer functionality".

Drug patents may fare better than other technologies in inter partes review proceedings
  • USA
  • August 21 2017

The US Patent Trial and Appeal Board (PTAB) recently released updated statistics showing the fate of resolved inter partes review proceedings. These statistics show that a total of 4,563 inter partes review petitions were resolved as of March 31 2017, including 1,577 final written decisions. In 81% of these final written decisions, at least some instituted patent claims were found unpatentable. This statistic has contributed to concerns that the PTAB is a patent 'death squad'.

Supreme Court – Lanham Act disparagement clause unconstitutional
  • USA
  • July 17 2017

The Supreme Court recently held that the Lanham Act's disparagement clause is unconstitutional under the First Amendment's free speech clause. The court explained that the disparagement clause "offends a bedrock First Amendment disparagement principle". Trademarks cannot be denied federal registration or be cancelled merely because they offend. Assuming that they otherwise qualify, offensive trademarks are entitled to the substantial benefits of federal trademark registration.

Biosimilar makers can give notice of commercial marketing before FDA licensure
  • USA
  • July 03 2017

The Supreme Court recently ruled that biosimilar makers can give notice of commercial marketing before Food and Drug Administration (FDA) licensure. The ruling resolves an ambiguity in the text of the Biologics Price Competition and Innovation Act, which gave rise to a presumption that biosimilar makers had to wait until 180 days after FDA licensure before providing notice of the commercial marketing of those products.

Federal Circuit weighs tests for evaluating infringement under doctrine of equivalents
  • USA
  • June 12 2017

In a recent panel decision, the Federal Circuit suggested that an 'insubstantial differences' test may be more suitable than a 'function-way-result' test for evaluating infringement under the doctrine of equivalents in patent cases involving the chemical arts. The decision arises from unusual procedural circumstances.

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