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While attending his friend’s wedding at the Trump National Golf Club in New Jersey in June 2017, Jonathan Otto took a photograph of a certain wedding crasher: the president himself. Figure 1: Complaint Exhibit A Otto texted the photo to his friend, Sean Burke, another guest at the wedding. By the next morning, the image had gone viral and ended up on TMZ, CNN, the Washington Post, the Daily Mail, and a Hearst Communications’ publication,…
New Year’s Day was a bit different this year.  It brought something unseen for the past twenty years:  the mass infusion of previously copyrighted works into the public domain.  United States copyright law grants creators certain exclusive rights over their expressive works—reproduction, distribution, and performance rights, for example.  But these rights only last for a limited period of time and, when they expire, the works enter the public domain for anyone to do with as…
The Patent Trial and Appeal Board issued 50 IPR and CBM Final Written Decisions in November, including decisions following remands from the Federal Circuit, cancelling 540 (66.83%) instituted claims while declining to cancel 263 (32.55%) instituted claims.  Patent owners conceded 5 (0.62%) claims through motions to amend or disclaimer in cases reaching a final decision.  For comparison, the cumulative average rate of instituted claims cancelled in IPR and CBM Final Written Decisions is about 75%.…
Even during a partial government shutdown, the USPTO provided us with a gift for the New Year!  What is that you ask?  It is the 2019 Revised Subject Matter Eligibility Guidance (“2019 Guidance”), of course.  Teasing us with a potpourri of discussion points on the revised guidelines for Section 101 during his speech in mid-September at IPO’s Annual Meeting, Director Iancu waited until the New Year for the unveiling.  Now, we’ll tell you what…
Decision: Hospira, Inc. v. Fresenius KABI USA, LLC, Nos. 16-cv-651 and 17-cv-7903, 2018 WL 6621401 (N.D.Ill. Dec. 17, 2018)) This case provides an example of the use of inherency in an obviousness determination. That is, the Northern District Court of Illinois found that claim 6 of U.S. Pat. 8,648,106 (the ‘106) patent would have been obvious based on a finding that the prior art inherently contained a certain property.[1] But the authors suggest that…
Federal Circuit Decision:  Sanofi v. Watson, 875 F.3d 636 (Fed. Cir. 2017) Background:  The invention at issue in Sanofi v. Watson, was dronedarone, an antiarrhythmic agent directed towards the treatment of heart rhythm problems in patients with atrial fibrillation. The commercial embodiment prescribed in the U.S. is known as Multaq®. Sanofi filed a patent application on a dronedarone composition in 1998, after which Sanofi conducted clinical trials for approximately a decade. The Phase III…
On October 26, 2018, the Library of Congress adopted exemptions to the prohibitions in 17 U.S.C. § 1201(a)(1)(A), which prohibits circumvention of technological measures that control access to copyrighted works.  Such exemptions are intended to address situations where the access controls in § 1201(a)(1)(A) impair certain individuals’ ability to make noninfringing uses of copyrighted works.  Specifically, § 1201(a)(1)(C) requires the Library of Congress, upon recommendation of the Office, to examine and adopt exemptions based on…
Introduction The Federal Circuit issued decisions in Novartis AG v. Ezra Ventures LLC, — F.3d __, 2018 WL 6423564 (CHEN, Moore, Stoll) and Novartis Pharmaceuticals Corp. v. Breckenridge Pharmaceutical, — F.3d __, 2018 WL 6423451 (CHEN, Prost, Wallach) on Dec. 7, 2018. Both cases address obvious-type double patenting (“ODP”) issues that arise out of timings relative to the Uruguay Round Agreements Act of 1994 (hereafter “GATT”).[1]  And, as we shall see, both decisions…
Three prominent IP groups propose amending § 101 to clarify what is patentable subject matter. The American Bar Association (ABA) IP Section, and the Intellectual Property Owners Association (IPO) in a joint proposal with the American Intellectual Property Law Association (AIPLA), cited the need resolve ambiguity in § 101 jurisprudence caused by recent Supreme Court decisions. Both proposals keep the current four categories of patentable subject matter: process, machine, manufacture, and composition of matter, or…
As the 2018 playoffs neared, Boston Celtics’ fans were worried because star point guard Kyrie Irving was injured and unable to play. But reserve point guard Terry Rozier swooped and hooped onto the scene to deliver a breakout performance that helped the Celtics make a run at the Eastern Conference Finals. Thrilling fans, Rozier stole an inbound pass (and the victory) from the Indiana Pacers and flew in for the game-winning dunk 1.5 seconds before…