Section 101 in 2019

Snell & Wilmer Lawyers presented their article, Section 101 in 2019, at the ABA Section of Intellectual Property Law’s Annual Meeting in Arlington, Virginia, as part of a program, “101 ‘301’: Advanced Subject Matter Eligibility.”  The article summarizes the existing patent eligibility test, discusses recent Federal Circuit decisions, and provides practical strategies for practitioners navigating the Section 101 landscape.

Posted in IP and Technology Litigation, Patent Litigation | Tagged , , , , , , ,

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Federal Circuit Broadens Personal Jurisdiction Based on Patent Infringement Letters

By Daniel S. Ivie and David G. Barker A recent decision by the Federal Circuit has broadened the potential for declaratory judgment personal jurisdiction to exist based on letters sent to accused patent infringers in a foreign forum. In Jack Henry & Associates, Inc. v. Plano Encryption Technologies, LLC, the Federal Circuit appears to now require that a patentee make a “compelling case” that the exercise of jurisdiction in the foreign forum “would be unreasonable and unfair.” For years, the Federal Circuit has held that infringement letters, without more, “are not sufficient to satisfy the requirements of Due Process in   Read More »

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Helsinn Healthcare v. Teva Pharmaceuticals USA: Textualism Runs Aground

By Andrew F. Halaby Affirming the Federal Circuit, the Supreme Court on January 22 held that post-AIA section 102(a)(1)’s provision, A person shall be entitled to a patent unless . . . the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention, (emphasis added), does not require that the invention “on sale” be “available to the public.” To be sure, the “on sale” bar historically has not required public availability, at least according to the Federal Circuit. (As the   Read More »

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How Scandalous! SCOTUS Again Takes up Whether the Lanham Act Violates the First Amendment

By Shalayne Pillar and David G. Barker On Friday, the Supreme Court of the United States agreed to hear a case that will decide whether the federal ban on trademark protection for “scandalous” material is unconstitutional.  In re Brunetti follows the U.S. Patent and Trademark Office’s (“USPTO’s”) denial of trademark registration for the word “Fuct,” which held that the mark “comprises immoral . . . or scandalous matter” and thus could not be registered under Section 2(a) of the Lanham Act.  On appeal, the Federal Circuit sided with the applicant (discussed here), holding the statute violated the Free Speech provision   Read More »

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Supreme Court to Decide Multiple IP Issues This Term

 By Taryn J. Gallup and David G. Barker On October 26, 2018, the Supreme Court of the United States (“SCOTUS”) granted certiorari in two IP cases.  In Mission Product Holdings, Inc. v. Tempnology, LLC, SCOTUS will address a circuit split on the effect bankruptcy has on trademark license rights.  In Return Mail, Inc. v. U.S. Postal Service, et al., SCOTUS will address whether the government may challenge patents as a “person” under the America Invents Act (“AIA”). In Mission Product Holdings, Tempnology, LLC (“Tempnology”) filed for Chapter 11 bankruptcy protection and cancelled a trademark licensing agreement that it had with   Read More »

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