Patent Law Practice Center

Monsanto Looking Good After SCOTUS Oral Argument

By: Gene Quinn (IPWatchdog.com)

Last week, the United States Supreme Court heard oral arguments in the matter of Bowman v. Monsanto. For a recitation of the facts and procedural history, see Argument Summary. For purposes of this article suffice it to say that the case is about a farmer who did not want to buy Monsanto’s patented seed. He acquired seed from a grain elevator knowing that at least some would be Monsanto patented seed. He planted all the seed and applied Roundup® to kill everything but the Monsanto crop. He then harvested the progeny seeds for future use.

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Chief Judge Rader to Speak at Patent Law Institute on All-Star Panel!

Patent law heavyweights will convene for what looks to be two very special days in New York City at PLI’s 6^th Annual Patent Law Institute on February 16-17^th.

 Chief Judge Randall Rader of the Federal Circuit will participate in an all-star dialogue panel between the bench and bar along with United States District Judge William Young and nationally-recognized expert practitioners Donald Dunner, Seth Waxman and Dean John Whealan of the George Washington University Law School.

Robert Stoll, who recently retired as Commissioner for Patents at the USPTO, is slated to open the program with a PTO keynote address. Commissioner Stoll is expected to report the latest developments regarding the PTO’s on-going implementation of the America Invents Act and other critical PTO developments.

Co-Chairs Scott M. Alter (Faegre Baker Daniels LLP), Douglas R. Nemec (Skadden, Arps, Slate, Meagher & Flom LLP) and John M. White (Berenato & White; Director of Patent Professional Development, Practising Law Institute) will navigate attendees through 6 exciting plenary sessions that discuss the practice impacts of recent Supreme Court and Federal Circuit decisions, AIA changes, current critical patent issues from the corporate counsel perspective, views from the District Court bench, the never-ending PTO changes and for good measure, an hour of legal ethics credit! (more…)

Machine-Or-Transformation Test After Myriad: Implications To The Prosecution Of Process Claims

Michael Davitz, Partner at Axinn, Veltrop & Harkrider and Practice Center Contributor, recently sent in this article he wrote with colleague’s Josephine Liu and Stacie Ropka discussing recent case law on the patentability of process claims.

Not all inventions are patentable.  The Federal Circuit recently handed down its decision in Myriad[i] and the Supreme Court will be hearing Prometheus[ii] in the term beginning in October 2011.  The issues in both Myriad and Prometheus highlight the difficulty in determining when a claim directed to a process is patentable subject matter under § 101, a determination that is particularly troubling in many inventions related to the life sciences.

A first step for granting a patent is determining whether or not a patent application claims patentable subject-matter.  In a line of cases from the late 70s to early 80s and reaffirmed in 2010, the Supreme Court explained that 35 U.S.C. § 101 is to be interpreted broadly and has articulated only three exceptions to what is patentable:  (1) laws of nature; (2) physical phenomena; and (3) abstract ideas.[iii] With respect to process claims, the line between patentable “processes” and unpatentable principles or abstract ideas is not always clear.  The Supreme Court has yet to provide a concrete test by which such a distinction can be made.[iv] It did, however, provide a hint in Gottschalk v. Benson stating that “[t]ransformation and reduction of an article ‘to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines.”[v] From this pronouncement, the Federal Circuit formally presented and applied the machine-or-transformation test in In re Bilski.[vi] (more…)

Join Us For Patent Litigation 2011 on September 19-20

Rapid changes in patent law require practitioners, whether plaintiff’s or defendant’s counsel, to be up-to-date on the current state of the law and to develop successful litigation strategies and tactics. Whether you are plaintiff’s or defendant’s counsel, attend this annual program to ensure that you are up-to-date on the current state of the law and on how to develop successful litigation strategies and tactics.  Join us for PLI’s Patent Litigation 2011 on September 19-20 in San Francisco (also available via live webcast or on October 13-14 in Chicago & on November 14-15 in New York) where faculty of outside and in-house lawyers who have earned national reputations in patent litigation by trying a wide variety of bench and jury patent trials,  will provide comprehensive coverage of every phase of a patent lawsuit. Through lecture and demonstration, you will be able to hone your patent litigation skills in just two days!

Here’s what you will learn:

• An expanded opening session focusing on the impact of new case law on patent litigation, including recent Supreme Court and Federal Circuit decisions
• An in-depth exploration of issues of joint/multiple infringement
• Growing trends in ITC practice
• Why is patent litigation so expensive? An analysis of the expense of patent litigation and strategies to effectively manage these costs
• Strategy and tactics in concurrent reexamination proceedings
• Fact and fiction in jury trials: what gets through to the jurors?
• Current trends in patent damages in the post-Uniloc environment

Click here for more information on Patent Litigation 2011!

 

Jump the Shark Patent Style: Supremes Take Kappos v. Hyatt

Gene Quinn, of IPWatchdog and Practice Center Contributor, sent in this article discussing why he believes the United States Supreme Court’s decision to accept cert. in Kappos v. Hyatt was undeniably a bad decision.

By accepting cert. in Kappos v. Hyatt the United States Supreme Court has clearly and undeniably jumped the shark in terms of patents.  This case, which raises issues of such little importance to the greater scheme of patent law, is hardly appropriate for Supreme Court consideration.  The Supreme Court is wasting its time hearing this case and denying the slot to a far more important matter, which is nearly unconscionable.

Each year the United States Supreme Court receives upwards of 7,000 petitions for a writ of certiorari, which is the petition one must file in order to ask the Court to take the case.  The United States Supreme Court typically hears about 100 cases (plus or minus).  One would suspect that the cases heard by the Supreme Court for full consideration and a written opinion would be of the utmost importance to the Republic.  Those cases where there is either a fundamental matter of law, an issue that impacts a great many people or a case of tremendous importance for the administration of justice.  Simply stated, Kappos v. Hyatt does not qualify on any level for Supreme Court consideration.  Taking this case is an extreme and utter waste of precious judicial resources.

Click here to read IPWatchdog’s full publication.