United States: IP Buzz – June 2014

Last Updated: July 16 2014

Edited by Martin L. Saad, Meaghan Hemmings Kent and Elissa Brockbank Reese

IP LEGAL NEWS AND UPDATES

Patent Reform: It's Alive!

Authors: Jeffri A. Kaminski, Christopher J. Kim and Kerri Patterson*

When Senator Patrick Leahy (D-Vt.) announced on May 21, 2014 that he was pulling patent reform off the agenda of the Senate Judiciary Committee, commentators were quick to pass judgment: "Patent reform is dead." These reform efforts were meant to address the growing concern over patent assertion entities (PAEs) or non-practicing entities (NPEs), better known by the more pejorative nickname "patent trolls." However, some hope remains for the ongoing legislative effort to solve PAE litigation issues. Patent reform may have been tabled in the Senate Judiciary Committee, but two patent reform bills are still alive in Congress. Both bills aim to prevent abusive practices by targeting illegitimate patent demand letters.

Click here to learn more about the current state of patent reform.

Kerri Patterson is a summer associate and not licensed to practice.

Nautilus: New Test, Same Application?

Authors: Trent B. Ostler, George L. Howarah and Robert Kinberg

In anticipation of Nautilus v. Biosig, many expected that the Supreme Court would relax the Federal Circuit's so-called insolubly ambiguous test for determining definiteness. Under the Federal Circuit's test, patents had been notoriously difficult to invalidate as indefinite – even if the patent had ambiguous claims. The Supreme Court in Nautilus ultimately crafted a new definiteness test, which arguably will make it easier to invalidate patents. However, a closer look at the decision and oral argument shows that the Supreme Court's decision may have only relabeled the test while maintaining the application of the Federal Circuit's test.

Click here to read more about the "new definiteness test."

Supreme Court Opens Door to Food and Beverage Label Challenges Under Lanham Act

Authors: David D. Conway and Martin L. Saad

The United States Supreme Court paved the way on June 12 for competitors to challenge FDA-regulated food and beverage labels under the Lanham Act. The Court's opinion in POM Wonderful LLC v. The Coca-Cola Co., is the latest chapter in a long-running feud between POM Wonderful and Coca-Cola. The dispute arose in 2008 when POM accused Coke of mislabeling one of its fruit juice blend products with the prominent title "pomegranate blueberry," even though the product allegedly consisted mostly of less expensive apple and grape juices. Coke had successfully persuaded the Central District of California and the Ninth Circuit that POM's Lanham Act claims were precluded by the Federal Food, Drug, and Cosmetic Act and attendant FDA regulations addressing the labeling of fruit juice blends; the Supreme Court disagreed.

Click here to learn more about the effects on food and beverage labeling.

Alice Corp. v. CLS Bank: Another Unpatentable Business Method Patent

Authors: Michael A. Sartori and Trent B. Ostler

On June 19, 2014, the Supreme Court unanimously decided Alice Corp. v. CLS Bank Int'l., holding that the claimed computer-implemented business method did not recite patent-eligible subject matter. The Alice decision examines the subject matter eligibility of computer-related patents and is the latest since Bilski v. Kappos to review the abstract idea exception to patent subject matter eligibility. The decision applies a two-part test to determine whether a patent claim falls under the abstract idea exception.

Click here to read the details of this decision.

Supreme Court Aiding Fight against Patent Trolls: Alice, Nautilus, Limelight, Octane Fitness and Highmark

Authors: Michael A. Sartori, Adam R. Hess and Trent B. Ostler

The Supreme Court decided five patent cases this term: Alice Corp. v. CLS Bank Int'l; Biosig v. Nautilus; Akamai v. Limelight; Octane Fitness v. Icon Health; and Highmark v. Allcare. While the Supreme Court's motivation for the upswing in patent activity is unclear, the Supreme Court unanimously decided all five patent cases, which appear to have a substantial impact on patent trolls. In particular, Alice limits subject matter eligibility; Nautilus limits indefiniteness; Limelight limits induced infringement; and Octane Fitness and Highmark expand a successful party's ability to collect attorney fees. As such, the Supreme Court appears to be signaling its willingness to help curtail patent troll litigation.

Click here to learn more about how these cases can affect future patent troll cases.

IP Buzz – Post Grant Practice Edition

Earlier this month, Venable issued its monthly edition of IP Buzz focused on inter partes litigation.

Click here to view the latest issue.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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