In Arthrex Inc. v. Smith & Nephew Inc. et al., case number 18-2140, the U.S. Court of Appeals for the Federal Circuit recently considered whether the appointment of the Board’s Administrative Patent Judges (“APJs”) by the Secretary of Commerce, as currently set forth in Title 35, violates the Appointments Clause of the U.S. Constitution.  The Federal Circuit held that the statute as currently constructed makes the APJs principal officers.  To remedy the violation, the Federal Circuit concluded that severing the portion of the Patent Act restricting removal of the APJs is sufficient to render the APJs inferior officers and remedy the constitutional appointment problem.  As the final written decision on appeal issued while there was an Appointments Clause violation, the appropriate course of action was for this case to be remanded to a new panel of APJs. Continue Reading Federal Circuit Holds Administrative Patent Judges Appointments Unconstitutional

Should a company be required to license its patents to a competitor?  That’s one question that arises when intellectual property law and antitrust law intersect.

The Sherman Act, section 1, prohibits concerted action (agreements, combinations, or conspiracies) that restrain trade.  Four types of conduct are per se unlawful; i.e., illegal regardless of the reason.  They all involve agreements between competitors, also called horizontal agreements.  It is per se unlawful to agree with a competitor to fix prices, rig bids, participate in group boycotts, or allocate markets.  Other types of conduct are unlawful under the Rule of Reason; their illegality depends on the conduct in the relevant market (the product market and the geographic market) and whether there is a rational business reason for the conduct.  Examples of unlawful conduct include certain types of exclusive dealing arrangements, some kinds of price discrimination or restrictions on sales, tying arrangements, and some mergers and acquisitions. Continue Reading What Happens When the Intellectual Property Laws Clash with the Antitrust Laws?

Before 1995, the term of a U.S. utility patent was 17 years from the day the patent issued.  In 1994, the federal statutes were changed to make the patent term 20 years from the effective filing date of the patent application.  This change was part of the Uruguay Round Agreements Act and was intended to make U.S. patents comparable to foreign patents, which, in most countries, expire 20 years from their filing dates.

However, in order to address the problem of delays caused by the Patent and Trademark Office during the prosecution of a patent, Congress enacted statutes providing for the addition of specific numbers of days to a patent’s term.  See 35 U.S.C. section 154(b). Continue Reading When Does A Patent Expire? Ask the Federal Circuit!

Many resources are being devoted to preventing data breaches and protecting privacy.  In fact, patents have issued on various approaches.  But are those approaches really patentable?   In a recent challenge to OneTrust’s patent, which is related to data privacy risk, the Patent Trial and Appeal Board (“PTAB”) found the subject matter patent ineligible.

OneTrust’s patent, U.S. Patent No. 9,691,090 (“’090 Patent”), relates to privacy management software that calculates the risk to personal data that has been collected and is being used, for example, by a business.  OneTrust explained its software platform is used by companies to comply with data privacy regulations. Continue Reading PTAB Invalidates Data Privacy Risk Assessment Patent

If you’re familiar with Banksy, you know he’s the epitome of counterculturalism. For those of you who aren’t familiar with Banksy, he is an anonymous England-based street artist, vandal, political activist, and film director who has been active since the 1990s. His satirical street art and subversive epigrams combine graffiti and dark, sometimes morbid, humor. If you have a minute, take a look at his work. He certainly isn’t someone who you would expect to turn to the legal system to protect his intellectual property. In fact, he’s openly stated that “copyright is for losers.” Continue Reading Counterculturalist Banksy to Defend His Intellectual Property in a European Cancellation Proceeding