Reyna Splits from CAFC on Weight of General Industry Skepticism in...
The U.S. Court of Appeals for the Federal Circuit on Friday, April 29, held that the Patent Trial and Appeal Board (PTAB) erred in finding that Auris Health, Inc. had failed to demonstrate that the...
View ArticleChief Judge Rader Says KSR Didn’t Change Anything, I Disagree
Upon hearing Rader make such a bold statement the first thought that ran through my mind was — Really? Did he just say that? I have heard from others for some time that Rader has been heard to say...
View ArticleThe Law of Recipes: Are Recipes Patentable?
In most cases the typical recipe for a "killer Margarita" or "the best barbeque sauce ever" will not be patentable, but the only way to know for sure is to understand how the Patent Office reaches its...
View ArticleIs Your Patent Portfolio Safe from the Supreme Court?
The Prometheus decision shows that you can never know for sure what the outcome will be once you arrive at the Supreme Court. We also know that the Supreme Court is taking more patent cases now than...
View ArticleKSR the 5th Anniversary: One Supremely Obvious Mess
On Monday, April 30, 2007, the United States Supreme Court issued its final decision in the matter of KSR v. Teleflex, which overruled the Federal Circuit's application of the so-called "teaching,...
View Article5th Anniversary KSR: Is Section 103 Unconstitutional?
This is a good time to review the implications of this case, but an even better time to look into the origins and constitutionality of the Non-obviousness requirement. You might object that the...
View ArticlePetition for Rehearing en banc filed in Plasmart v. Kappos
This case intrigued me from the start because it seemed rather odd that there should be a nonprecedential opinion in an appeal to the Federal Circuit necessitated by a completely adjudicated inter...
View ArticleObviousness When All Elements Not Present in Prior Art?
The Tokai and Ritchie rationale seems to have never been cited by any other panels of the Court. While this may be due to many reasons, the fact that this reasoning could so easily invalidate virtually...
View ArticlePredicting Patentability in the Unpredictable Arts: A Look Back at the...
A few trends were readily apparent in 2012. First, pharmaceutical patent holders in litigation fared well – in a series of cases, the Federal Circuit rejected obviousness attacks in pharmaceutical...
View ArticleCAFC 2012 on the Obviousness of Chemical Innovations, Part II
In contrast to the Federal Circuit’s 2012 decisions in the context of pharmaceutical litigation, its decisions with respect to appeals from the Board were much less favorable to those seeking patent...
View ArticleWhen is an Invention Obvious?
That being said, the possibility that a utility patent could be obtained cannot be definitively ruled out even if an invention seems quite likely to be obvious, which is one of the biggest problems...
View ArticleFederal Circuit Affirms the PTAB, Emphasizing KSR’s Flexible Approach to 103
The Court affirmed the Board’s finding that two previous patents render the ‘695 Patent obvious. The Court rejected ClassCo’s argument that “[a] basic characteristic of a KSR combination is that it...
View ArticleA Revolutionary Approach to Obtaining Software Patents Without Appealing to...
Today’s environment demands an agile approach, one that involves substantial up-front planning, followed by continuously learning from both the client and the marketplace, using a strategy that...
View ArticleChoosing Between Patents and Trade Secrets, A Discussion Worth Revisiting
Patenting and secrecy are the two major methods of protecting technology that supports competitive advantage. Trade secrets protect a wide range of confidential information, ranging from customer lists...
View ArticleFull Federal Circuit to Review Challenge to Test for Design Patent Obviousness
The U.S. Court of Appeals for the Federal Circuit (CAFC) has granted a rare en banc review of its January, 2023, decision in LKQ Corporation v. GM Global Technology Operations, which affirmed a Patent...
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