Fourth Annual Executive Branch Review Conference
As Congress debates controversial patent legislation that some say will undermine patent rights, has the U.S. Supreme Court been steadily eroding the scope and enforceability of patents for the past decade? The Supreme Court has made it easier to invalidate patents because an invention is “obvious,” not specific enough, or an “abstract idea.” The Court has also made it more difficult for patent owners to stop or “enjoin” ongoing infringement of their rights and riskier to assert their rights in court. Is the Supreme Court striking the right balance or is it undermining an important property right?
This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.
- Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
- Mr. Michael R. Huston, Gibson, Dunn & Crutcher
- Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University
- Mr. Jeff Wall, Sullivan & Cromwell
- Moderator: Hon. Randall R. Rader, The George Washington University
The Mayflower Hotel SCOTUScast 5-12-16 featuring Gregory Dolin
Gregory Dolin May 12, 2016
On April 25, 2016, the Supreme Court heard oral arguments in Cuozzo Speed Technologies, LLC v. Lee. In 2011 the America Invents Act created an expedited procedure, known as inter partes review, to provide a cost-effective alternative to litigation for resolving certain challenges to patent validity. The Patent Trial and Appeal Board, contained within the U.S. Patent and Trademark Office (PTO), hears these disputes rather than a federal district court. When construing patent claims, the Board applies a “broadest reasonable interpretation” standard rather than the “plain and ordinary meaning” standard typically applied by federal courts.
Here, Cuozzo Speed Technologies, LLC. (Cuozzo) owns a speed limit indicator patent. Garmin International, Inc. (Garmin) petitioned the Board for inter partes review (IPR) of claims regarding the patent. The Board found that certain claims were unpatentable, and denied Cuozzo’s request to replace those claims with several others. Cuozzo appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit, which (1) held that it lacked authority to review the PTO’s decision to institute IPR, and (2) affirmed the Board’s final determination, finding no error in its application of the “broadest reasonable interpretation” standard.
There are two questions before the Supreme Court: (1) Whether the Federal Circuit erred in holding that the Board may, in IPR proceedings, construe claims according to their broadest reasonable interpretation rather than their plain and ordinary meaning; and (2) whether the Federal Circuit erred in holding that, even if the Board exceeds its statutory authority in instituting an IPR proceeding, the decision to institute the IPR proceeding is judicially unreviewable.
To discuss the case, we have Gregory Dolin, who is Assistant Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law. SCOTUScast 3-14-16 featuring Gregory Dolin
Gregory Dolin March 14, 2016
On February 23, 2016, the Supreme Court heard oral argument in Halo Electronics v. Pulse Electronics, which was consolidated with Stryker Corp. v. Zimmer. Both of these cases involved claims of patent infringement relating to the sale or marketing of various inventions. Both also involved a determination by the U.S. Court of Appeals for the Federal Circuit that an award of enhanced damages for infringement under 35 U.S.C. § 284 was not appropriate, after applying the Circuit’s two-part objective/subjective test for willful or bad-faith infringement set forth in In re Seagate Tech., LLC.
The question before the Supreme Court is whether the Federal Circuit’s refusal to allow enhanced damages absent a finding of willfulness under its two-part test contravenes the plain meaning of 35 U.S.C. § 284, given the Supreme Court’s recent rejection of an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys' fee awards in exceptional cases.
To discuss the case, we have Gregory Dolin who is Associate Professor of Law and Co-Director, Center for Medicine and Law at University of Baltimore School of Law. Intellectual Property Practice Group Podcast
A former Director of the United States Patent and Trademark Office and former Chief Judge for the U.S. Court of Appeals for the Federal Circuit have recently opined that new changes to the Federal Rules, which heighten pleading standards in patent litigation cases, go a long way to correcting perceived problems in the current patent litigation regime. They claim that, unlike some proposals being contemplated in Congress, these judicially-imposed corrections offer a solution without reducing judicial flexibility.
Short video featuring Gregory S. McNeal
- Robert T. Haslam, Partner, Covington & Burling LLP
- Hon. Paul R. Michel, U.S. Court of Appeals, Federal Circuit (ret.)
- Moderator: Prof. Adam Mossoff, Co-Director of Academic Programs and Senior Scholar, Center for the Protection of Intellectual Property, George Mason University School of Law
Gregory S. McNeal February 02, 2016
Gregory S. McNeal, Associate Professor of Law and Public Policy at Pepperdine School of Law, explains the FAA’s distinction between the commercial and the recreational use of drones, questioning whether or not this distinction is important.