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March 22, 2012
This past Tuesday, a unanimous (9-0) Supreme Court, in Mayo Collaborative Services v. Prometheus Laboratories, gave further instruction on patent eligible subject matter under 35 U.S.C. §101. This was the first time the Supreme Court had addressed the issue since the hotly debated Bilski decision last year.
November 1, 2011
The Federal Circuit Waves Good-bye to the Presumption of Irreparable Harm for Patent Injunction Requests
The Federal Circuit joined the Ninth Circuit and the Second Circuit in deciding that the Supreme Court’s Ebay decision rejects the presumption of irreparable harm in patent infringement cases. This presumption is employed by some district courts when determining whether an injunction is suitable. Before Ebay, the Federal Circuit generally followed the rule that “a permanent injunction will issue once infringement and validity have been adjudged, absent a sound reason to deny relief.” Further, in the context of preliminary injunctions, the Court applied “an express presumption of irreparable harm upon a finding that a plaintiff was likely to succeed on the merits.” In Ebay, the Supreme Court stated the patentee must show: it suffered irreparable injury, the remedies at law are inadequate to compensate the injury, considering the balance of hardships an equitable remedy is warranted, and public interest is not disserved by the injunction.
September 28, 2011
On September 16, 2011, President Obama signed the America Invents Act (AIA) into law. The AIA marks the fourth major facelift of patent law and the biggest change to patent law since the 1950s. Instead of awarding a patent to the “first to invent” under the old patent act, the AIA now issues patents to the inventor who is “first to file.” The “first to file” system is used by a majority of countries across the world, notably Japan and Germany. As far as patent laws are concerned, this change brings the United States into accord with its global trading partners, but it is not the only change concerning intellectual property.
September 15, 2011
ON SEPTEMBER 8, 2011, the Senate passed the Smith-Leahy America Invents Act (the “AIA”), reforming the law of patents after years of debate in both the House and the Senate. The House had passed the bill back in June. Some of the major highlights of the AIA are as follows: Brings U.S. patent law more in line with the patent laws of most other countries the U.S. conducts trade with by switching from a first-to-invent system to a first-to-file system, broadens the definition of prior art in §102 while maintaining the 1 year grace period for inventors to file an application after public disclosure. Repeals §103 provisions relating to inventions made abroad and statutory invention registration, creates a civil action by a patent owner against another patent owner claiming the same invention with an earlier filing date that was derived from the invention claimed by the person seeking relief, allows a third party to institute a post-grant review of validity, and an inter partes review on specified novelty and non-obvious grounds based on submitted prior art, but places certain limitations on the procedure.
September 9, 2011
On September 8, the U.S. Senate voted to pass a patent reform bill which will drastically change patent filing and the reexamination process. One major change is that the patent system will become a first-to-file system. The current system credits the invention to whoever first conceived of it. This inquiry can result in costly and lengthy litigation. Under the new first-to-file system, the first inventor to file would be created as the inventor. This approach would cut down on costs but also would encourage investors to rush to the United States Patent and Trademark office (USPTO).
July 20, 2011
The Supreme Court issued an opinion in a patent case that may well have broad implications for copyright cases testing the limits of the Digital Millennium Copyright Act (DMCA). In Global-Tech Appliances v. SEB S.A., 131 S. Ct. 2060 (2011), the Supreme Court addressed the exact state of mind requirement that applies to patent infringement liability predicated upon an inducement theory. There, in an 8-1 decision the Supreme Court ruled that liability for inducing infringement existed where the defendant knows of the patent and intends to infringe. In so ruling, the Supreme Court made clear that an intent to induce infringement was satisfied where a defendant was willfully blind to the infringement. 131 S. Ct. at 2068-71.