Pfizer and BioNTech recently asked the Southern District of California to dismiss a patent infringement claim from Allele Biotechnology related to Pfizer and BioNTech’s Covid-19 vaccine.
Allele holds a patent for a fluorescent protein called mNeonGreen, which causes some cells to glow when exposed to certain kinds of light. Allele does not claim that mNeonGreen
Finding Google’s copying a fair use, the Supreme Court ended Oracle’s decade-long attempt to recover copyright damages. The battle began between these tech giants when Google designed its Android software platform for mobile devices, such as smartphones. The platform allows “computer programmers to develop new programs and applications” for Android-based devices. In designing the mobile platform, Google independently developed most of the code but copied what the parties referred to as “declaring code” for 37 application programming interfaces, or APIs. The declaring code in APIs “enables a set of shortcuts for programmers.” A programmer can select a particular task from the API’s task library without having to learn anything more than a simple command, thus allowing the programmer to use a library of prewritten code to carry out complex tasks without having to write the code from scratch.
At the time Google was developing the Android platform, many software developers were using Sun Microsystems’ Java programming language and its popular Java SE platform. Oracle, shortly after acquiring Sun Microsystems in 2010, accused Google of taking critical portions of the APIs in the Java code for unauthorized use in its Android platform. While Google independently developed the underlying code for the tasks, Google copied the declaring code for certain tasks “useful to programmers working on applications for mobile devices.” “Without that copying, programmers would need to learn an entirely new system to call up the same tasks.” With the “structure, sequence, and organization” of the APIs so similar, Oracle alleged Google infringed its copyrights.
Continue Reading Fair Use Shields Google in Its Copyright Battle with Oracle
The Ninth Circuit recently considered an issue of first impression: What standard of review does an appellate court apply when reviewing a district court’s grant of summary judgment in a trademark infringement case on the equitable basis of the unclean hands doctrine. The Ninth Circuit faced this issue in the case titled: Metal Jeans, Inc.
The validity of a United States patent can be challenged in federal court litigation. Patents can also be challenged in the U.S. Patent and Trademark Office, which, in most cases, is a quicker and less costly process.
The PTO provides three procedures by which a patent can be challenged: inter partes review (IPR), post grant review (PGR), and ex parte reexamination. In IPRs and PGRs, the challenger and the patent owner both participate, and the proceedings are handled by the Patent Trial and Appeal Board (PTAB). In an ex parte reexamination, the challenger is not involved after the request for reexamination has been filed, and the proceeding is handled by the PTO examiners.
In IPRs and PGRs, anyone except the patent owner may file a petition to challenge the patent. The filing fees are high, $41,500 for an IPR and $47,500 for a PGR, with additional fees depending on the number of claims challenged. The proceedings are handled by a three-judge panel of administrative judges with technical background in the field of the patent. There are two phases in these proceedings. The first phase consists of the filing of the petition by the challenger, the filing of a response by the patent owner, and the decision whether to institute the IPR or PGR by the PTAB. If the PTAB institutes the IPR or PGR, then the second phase (the trial phase) begins. The second phase consists of discovery (more limited than in litigation), briefing, an oral hearing, and a final written decision by the panel. The entire process from institution to the final decision should take no more than 12 months. The parties may appeal the decision to the Federal Circuit Court of Appeals.
Continue Reading How to Challenge a Patent in the PTO
On March 16, 2021, U.S. Circuit Judge Evan J. Wallach for the Federal Circuit Court of Appeals announced he plans to take senior status on May 31, 2021. This semi-retirement is set to create the first vacancy at the Federal Circuit in almost six years. The Federal Circuit handles all appeals of patent cases from Districts Courts in the U.S., and appeals from various government agencies. Thus, the Federal Circuit is the only one of the thirteen federal courts of appeal whose jurisdiction is determined entirely on the subject of the lawsuit it hears, rather than on the geographical location from which the appeal originated. This means the Federal Circuit can hear appeals from every District Court in the United States as long as it has subject matter jurisdiction. The only court in the United States with more authority over patent related issues in the United States Supreme Court.
The Federal Circuit was the only federal court of appeals that did not have any vacancies during President Donald Trump’s administration. In fact, President Trump nominated and succeeded in putting a judge in every other appellate court during his four years in office, including fifty-four judges on the federal appeals bench. However, the Federal Circuit remained untouched, and in fact currently has eight Democratic-President appointed judges, and four Republican-President appointed Judges.
Continue Reading Federal Circuit Set to Have First Vacancy in Six Years
