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Shortly after we posted about Moderna, Inc.’s October 2020 pledge not to enforce its COVID-19-related patents during the pandemic, the United States Food & Drug Administration (FDA) granted emergency regulatory approval for two COVID-19 vaccines produced by Moderna and BioNTech (with Pfizer), making these groups the first to ever enter the commercial market with mRNA-based therapies. This little-known and never-before-approved mRNA technology has since been widely administered and represents a primary weapon being used to…
Bigfoot Biomedical®, a Milpitas, CA emerging company, recently announced that it has secured new financing of up to $57 million in combined debt and equity financing from Madryn Asset Management LP, an alternative asset management firm that invests in innovative healthcare companies specializing in unique and transformative products, technologies, and services. Founded in 2014, Bigfoot focused on broadening access to innovative solutions for people with type 1 and type 2 diabetes. Bigfoot Biomedical is…
In In re: Board of Trustees of the Leland Stanford Junior University (“Stanford”), No. 2020-1012 (Fed. Cir. Mar. 11, 2021), the Federal Circuit was presented another opportunity to analyze patent-eligible subject matter.  In affirming the § 101 rejection of the claims, the court held the mathematical calculations and statistical modeling improvements to determinations of haplotype phase were not sufficient to make the claims patent eligible. In 2012, Stanford filed Application No. 13/445,925 (“the ’925 application”)…
Owning a federal trademark registration provides the ability to exclude others from using a certain word or design in association with specific goods or services. In the United States this exclusivity of rights, however, can also derive from actual use in commerce without a federal registration. In this case, it is critical to pinpoint the earliest date of use in commerce in order to prove to be the first to have used a certain mark…
Patent examiners operate under a complex network of production and quality incentives that influence the likelihood that an examiner will allow or reject a given patent application. In an empirical study published in the American Intellectual Property Law Association Quarterly Journal (summary available here), my co-author and I (both former examiners) detailed incentive policies at the U.S. Patent and Trademark Office (USPTO) and analyzed how those policies impact patent quality and examiner decision-making. By…
Founders of emerging companies must decide early on in their company’s growth cycle whether to require employees to assign their inventions (including rights to patent and patent applications –collectively “patent rights”) to the company.  This post provides a non-exhaustive analytical framework for founders to consider when making such decisions. Understanding Patent Ownership Under US patent law, ownership of patent rights includes the right to exclude others from making, using, selling, offering to sell, or importing…
Earlier this month, in the precedential decision Uniloc 2017 LLC v. Facebook Inc., the Court of Appeals for the Federal Circuit (“the CAFC”) upheld the Patent Trial and Appeal Board (“the Board”) on the issue of estoppel (or lack thereof) when multiple parties file multiple, substantially similar petitions challenging a patent’s patentability. 1) The Proceedings Before the Board The prosecution history is tangled: First, in November 2016, Apple filed a petition for inter parties review…
As part of its three-part series on the future of human-computer interaction (HCI), Facebook Reality Labs recently published a blog post describing a wrist-based wearable device that uses electromyography (EMG) to translate electrical motor nerve signals that travel through the wrist to the hand into digital commands that can be used to control the functions of a device.  Initially, the EMG wristband will be used to provide a “click,” which is an equivalent to tapping…