PTAB names Medtronic CardioVascular Chief Patent Counsel as new PTAB Chief

The United States Patent and Trademark Office (USPTO) recently announced the appointment of David P. Ruschke as the next Chief Judge for the Patent Trial and Appeal Board (PTAB). Ruschke will begin his new role at USPTO headquarters in Alexandria, VA, on May 23, 2016.

“The Patent Trial and Appeal Board plays a critical role in the patent ecosystem, especially since the launch of post-grant trials authorized in the America Invents Act of 2011,” said Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office Michelle K. Lee. “David’s breadth of experience in global patent opposition proceedings and his deep understanding of intellectual property positions him perfectly to lead our Board well into the future.”

“Director Lee has assembled a highly talented and hard-working team at the USPTO. I am excited to have the opportunity to join the talented judges and staff of the PTAB as we work together to serve America’s inventors,” said Ruschke.

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05.20.16 | Patent Issues, USPTO | Gene Quinn

New Post Grant Rules Become Effective, No Changes to Motions to Amend

On April 1, 2016, the United States Patent and Trademark Office published final rules in the Federal Register that relate to post grant proceedings. These new final rules went into effect on May 2, 2016, and amend the existing PTAB trial practice rules pertaining to inter partes review (IPR), post grant review (PGR), covered business method (CBM) review, and derivation proceedings brought into being by provisions of the America Invents Act (AIA).

In a nutshell, these new rules change existing practice by allowing new testimonial evidence to be submitted with a patent owner’s preliminary response, adding a Rule 11-type certification for papers filed in a proceeding, allowing a claim construction approach that emulates the approach used by a district court following Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) for claims of patents that will expire before entry of a final written decision, and replacing the current page limit with a word count limit for major briefing. These final rules are the culmination of a process started two years ago. For more information on the changes taking effect, please see Patent Office amends PTAB Trial Practice Rules.

Many had hoped that the Office would make it easier for patent owners to successfully amend patent claims in post grant proceedings, but the Office stood firm.

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Congress passes Defend Trade Secrets Act by overwhelming margin

On April 27, 2016, the United States House of Representatives passed S. 1890, the Defend Trade Secrets Act of 2016 (DTSA), by a vote of 410-2. Only Congressman Thomas Massie (R-KY) and Congressman Justin Amash (R-MI) voted against the bill.

The  DTSA was authored by U.S. Senators Chris Coons (D-DE) (pictured left) and Orrin Hatch (R-UT) and cosponsored by nearly two-thirds of the Senate. The bill was previously passed by the Senate on April 4, 2016, by a vote of 87-0, and will now move on the White House. Even before the Senate passed the DTSA, the Obama Administration voiced strong support for the bill. President Obama is expected to quickly sign the bill into law, which will make it the the first-ever comprehensive federal trade secret law.

Once signed by President Obama, the DTSA will amend the Economic Espionage Act of 1996 to create a federal civil remedy for stealing trade secrets and give innovators another procedural avenue by which to protect their intellectual property from theft.

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05.4.16 | Congress, Trade Secrets | Gene Quinn

Rovi sues Comcast for patent infringement of TV guide patents

On April 1, 2016, Rovi Corporation filed a patent infringement lawsuit against Comcast in the Eastern District of Texas, Marshall Division. In the complaint, which is quite detailed and very long (174 pages), Rovi is asking for a preliminary injunction, a finding that Comcast’s infringement is willful and deliberate, a finding that the case is exceptional and attorneys fees’ are appropriate, as well as damages for the infringement.

The lawsuit alleges that 12 years ago, Comcast took a license to Rovi’s patent portfolio, but that license expired on March 31, 2016, without being renewed. Rovi says that Comcast has failed to remove any of its products and services from the market and also continues to provide those products and services, all of which are now infringing because of the expiration of the patent license agreement.

“We disagree with Rovi’s accusations and intend to defend the cases vigorously,” said Jenni Moyer, Senior Director of Corporate Communications for Network & Operations at Comcast.  “Beyond that, we can’t comment on pending litigation.”

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05.3.16 | Patent Litigation, posts | Gene Quinn

Eli Lilly, Pfizer among those supporting Sequenom cert petition

Recently, a group of amici led by Eli Lilly filed an amici curiae brief with the United States Supreme Court in the matter of Sequenom, Inc. v. Ariosa Diagnostics, Inc. The Eli Lilly brief was filed in support of the petitioner, Sequenom. Eli Lilly is joined in this brief by Eisai Inc., Upsher-Smith Laboratories, Inc., Pfizer Inc., and Etiometry, Inc.

On March, 21, 2016, Sequenom filed a Petition for Writ of Certiorari in the Supreme Court, challenging the decision of the United States Court of Appeals for the Federal Circuit in Ariosa Diagnostics, Inc. v. Sequenom, Inc. If the Supreme Court takes this case, they will be asked to reconsider the unfortunate breadth of their prior ruling in Mayo Collaborative Servs. v. Prometheus Labs. See SCOTUS Blog Founder asks Supreme Court to Reconsider Mayo.

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