Posts in Courts

On July 12, the U.S. Court of Appeals for the Federal Circuit issued a precedential opinion in Natera, Inc. v. NeoGenomics Laboratories, Inc. affirming a grant of preliminary injunction that prevents NeoGenomics from making or selling its RaDaR oncology testing assay. The Federal Circuit’s opinion, authored by Chief Judge Kimberly Moore, found no legal error in the district court conducting an infringement analysis without claim construction, and no clear error in finding that NeoGenomics failed to raise a substantial question of patent validity.

This week, there were an average number of patent filings at the Patent Trial and Appeal Board (PTAB) with 38 new filings—two post grant reviews and 36 inter partes reviews (IPRs)—while the district court saw a below-average 48 new filings. At the PTAB, Directv filed seven petitions challenging as many Entropic Communications LLC [associated with FIG LLC (d/b/a Fortress Investment Group LLC)] patents. Amazon also filed seven petitions this week, challenging five Nokia Technologies Oy [associated with Nokia Corporation] patents. Apple filed four petitions challenging four Y.M.R. Tech Ltd. and S.M.R. Innovations Ltd. patents.

Last week, just before the holiday weekend, U.S. District Judge Ada Brown of the Northern District of Texas issued a memorandum opinion supporting the entry of a preliminary injunction against the Federal Trade Commission’s (FTC) final rule banning non-compete provisions from U.S. employment contracts. While the requested relief is limited to the plaintiffs named in the action, the ruling marks an important victory for business interests opposing the rule and intellectual property advocates warning about likely harms to trade secret protection within the United States.

“Ding-Dong, the Witch is Dead”—the Witch being the extraordinary agency overreach into law that Congress never passed, emboldened by the 1984 U.S. Supreme Court (SCOTUS) case of Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, and enabled by a weakened judiciary told to give agency action presumptive deference on the construction and application of federal statutes. Loper Bright v. Raimondo, (603 U.S. ___ (2024)), issued June 28, 2024, almost 80 years after the 1946 enactment of the Administrative Procedure Act (APA) and 40 years after the Chevron decision, may usher in a new era with a breath of fresh air.

The U.S. District Court for the District of Columbia today dismissed the remaining counts in Judge Pauline Newman’s challenge to U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Kimberly Moore’s inquiry into her fitness to continue serving as a federal appellate judge. The decision sets the stage for an appeal, which Newman’s lawyer told IPWatchdog will happen “within days, not weeks.”

Thirteen months after it opened for business, Europe’s Unified Patent Court (UPC) has issued its first decision on the merits. On July 3, 2024, the Düsseldorf Local Division released its decision in Franz Kaldewei v Bette UPC_CFI_7/2023, issuing cross-border injunctive relief and a provisional award of damages enjoining the defendant from continuing infringement. On June 1 2023, plaintiff Franz Kaldewei had sued Bette for direct and indirect infringement of claims 1 and 3 of EP3375337, ‘Sanitation Bath Tub Device,’ in Austria, Belgium, Denmark, France, Italy, Luxembourg and the Netherlands. Kaldewei sought disclosure of accounts books for the calculation of damages to be paid, an award of provisional damages, an injunction, a recall of the product from the market and permanent removal.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Wednesday, July 3, affirmed a district court’s holding that a patent for e-signature technology was ineligible under Section 101. The district court found the patent claims were directed to a longstanding business practice under Alice step one, and were therefore abstract, and that they contained no inventive step at Alice step two. Judge Prost authored the CAFC opinion.

The rise of artificial intelligence (AI) in the music industry has brought about a complex and contentious landscape where innovation intersects with intellectual property rights. Recently, two leading text-to-music AI tools, Suno and Udio, have found themselves at the center of this debate, facing lawsuits for copyright infringement filed by the three major record labels, and led by the Recording Industry Association of America (RIAA). The record labels allege that Suno and Udio used their recordings without a license to train Suno’s and Udio’s respective AI models. These claims bring to light broader issues regarding the ethical and legal implications of AI-generated content, the need for regulatory clarity, and the evolving relationship between technology and creativity.

Yesterday, US Inventor, Inc. (USI) filed an amicus brief in Island Intellectual Property LLC v. TD Ameritrade, Inc., urging the U.S. Court of Appeals for the Federal Circuit (CAFC) to reconsider its use of Rule 36 when affirming decisions. The underlying district court decision was issued in November 2022 by Judge Rodney Gilstrap, who adopted Magistrate Judge Roy Payne’s September 2022 Report and Recommendation and granted TD Ameritrade’s (TD) Motion for Summary Judgment on the patent infringement claim.

In the ongoing debate over healthcare misinformation and disinformation, one question supersedes all others: “Who owns science?” Who should the American people trust and how can we best communicate “just the facts” so the public can make the best healthcare decisions? And it’s important to remember that this debate isn’t just about vaccine denial.

Nearly a year has passed since the Administrative Committee’s Decision on June 26, 2023, amending the Unified Patent Court Agreement (UPCA) to move the London Section of the Central Division of the Unified Patent Court (UPC) of First Instance to Milan and to reallocate its competences between the Seat (Paris) and the two Sections of the Central Division (Munich and Milan), thereby aligning the UPCA with the consequences of Brexit. Since the Decision took effect 12 months after its adoption, the Milan Section opened its doors on June 27, 2024. Three high-level judges have been selected for the Milan Section: Mr. Andrea Postiglione, Ms. Anna-Lena Klein and Ms. Marije Knijff.

The U.S. Supreme Court today issued its opinion in Loper Bright Enterprises v. Raimondo, overruling the Court’s seminal case on administrative agency deference, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. Chief Justice Roberts delivered the opinion of the Court and Justices Kagan, Sotomayor and Jackson dissented.

The U.S. Patent and Trademark Office (USPTO) issued a draft Request for Comments (RFC) today seeking public feedback “on the current state of the experimental use exception jurisprudence and whether legislative action should be considered to enact a statutory experimental use exception.” The experimental use defense to patent infringement arises out of jurisprudence dating back to 1813 that allows some non-commercial experimentation with patented subject matter for limited purposes. According to the RFC, since the U.S. Court of Appeals for the Federal Circuit’s 2002 decision in Madey v. Duke University, which clarified the court’s view that the experimental use defense should be “very narrow and strictly limited,” many have weighed in on whether or not the exception should be expanded.

A few weeks ago, the U.S. Court of Appeals for the Federal Circuit undertook to clarify the obviousness standards for design patents. LKQ Corp. v. GM Glob. Tech. Operations LLC, __ F.4th__, No. 2021-2348, 2024 WL 2280728 (Fed. Cir. May 21, 2024). After many breathless commentaries, the record needs at least one expression of the “obvious”: this judicial effort utterly failed.