Reverse-Payment Patent Settlements Can Violate U.S. Antitrust Laws

On June 17, 2013, in FTC v. Actavis, the Supreme Court resolved a long-brewing battle between the FTC and the antitrust and patent defense bar over whether reverse-payment patent settlements between patentees and alleged infringers violate federal antitrust laws.  These settlements are categorized as reverse-payments because the settlement arises in the following circumstance: Alleged infringer – often a generic new entrant with respect to a patented drug – introduces or threatens to introduce a product that patentee believes infringes on its patent Patentee sues alleged infringer Patentee and alleged infringer settle with the patentee paying the alleged infringer for damages   Read More »

Posted in Antitrust Litigation, Patent Litigation | Tagged , , , ,

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Much Anticipated Federal Circuit En Banc Decision on Patentable Subject Matter Leaves Many Questions Unresolved

Anyone hoping for clarity on the standard for patent “eligibility” under 35 U.S.C. § 101 will be disappointed by the Federal Circuit’s recent en banc decision in CLS Bank International v. Alice Corporation (No. 2011-1301, decided May 10, 2013).  In a one-paragraph per curiam opinion, the court affirmed the district court’s holding that Alice’s patent claims are “not directed to eligible subject matter” under § 101 and are therefore not patentable.  Six separate opinions followed, none of which garnered a majority.  Alice owns four patents directed to a computerized trading platform used for conducting financial transactions in which a third party settles   Read More »

Posted in Patent Litigation | Tagged ,

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Recent Decision Highlights Complex Interplay Between Standard-Essential Patents and FRAND Licensing Terms

Patents confer upon the owner of the patent the right to exclude others from making, using, offering for sale, selling or importing the invention for a set period of time.  Tensions arise when patented technologies are included as part of industry technical standards, creating standard-essential patents that are required for system interoperability for certain technologies.  In such cases, patent owners can make contractual commitments to an industry standard-setting organization (SSO) to license technology on fair, reasonable, and non-discriminatory terms (known as FRAND or RAND) to promote such interoperability and provide lower product costs and increased price competition.  Standard-essential patents, however,   Read More »

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

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The Evolving Scope of the Inequitable Conduct Defense: 1st Media, LLC v. Electronic Arts, Inc.

On September 13, 2012, the U.S. Court of Appeals for the Federal Circuit, in 1st Media, LLC v. Electronic Arts, Inc., No. 2010-1435 (“1st Media”), reversed a Nevada district court’s ruling holding a patent owned by 1st Media unenforceable due to inequitable conduct.  1st Media, LLC v. do Pi Karaoke, Inc., No. 07-cv-1589 (Apr. 23, 2010).  The opinion is another in the recent string of cases elucidating the evolving scope of the inequitable conduct defense, and is interesting primarily for the guidance it provides concerning the “specific intent to deceive” prong of the defense under Therasense.  Therasense, Inc. v. Becton, Dickinson & Co.,   Read More »

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

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The Presumption of Irreparable Harm in Patent, Copyright, and Trademark Infringement Cases

Traditionally, a plaintiff seeking a preliminary injunction in a trademark infringement case has been entitled to a presumption of irreparable harm if the plaintiff can prove likelihood of success on the merits.  In 2006, the Supreme Court decided eBay, Inc. v. MercExchange, L.L.C.  The Court there rejected a categorical rule that a patent infringement plaintiff is entitled to a permanent injunction if it proves infringement.  Instead, held the Court, even a patent infringement plaintiff must show (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that   Read More »

Posted in Copyright Litigation, Patent Litigation, Trademark Litigation | Tagged , , ,

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