With Three Cases on October 2016 Docket, US Supreme Court Poised to Expand Its Impact on Patent Rights

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP

The US Supreme Court will hear arguments on three patent cases in the October 2016 Term.  Each case addresses a different area of patent law. In Samsung v. Apple (argument October 11), the Court will address the amount of damages awarded for infringement of a design patent. In SCA Hygiene v. First Quality (argument November 1), the Court will decide if the equitable defense of laches is available in patent cases. Lastly the court will tackle the question of liability for infringement when the product is made in a foreign country and only one component of the infringing product is provided from the U.S. to the foreign country in Life Technologies v. Promega (argument date to be determined). Continue reading

Supreme Court Observations: Halo Electronics v. Pulse Electronics

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

Jeffri A. Kaminski, Venable LLP

The U.S. Supreme Court’s recent Halo Electronics, Inc v. Pulse Electronics, Inc. decision changes the standard for awarding enhanced damages in patent litigation. The ruling reversed a 2015 U.S. Court of Appeals for the Federal Circuit decision that maintained that court’s longstanding approach to awarding enhanced damages.

In Halo, the Court altered the law on enhanced damages in three ways: 1) it eliminated the requirement to show objective recklessness; 2) it lowered the standard of proof from “clear and convincing evidence” to “preponderance of the evidence;” and 3) it adopted an abuse-of-discretion standard for the Federal Circuit’s review of a district court’s decision to grant enhanced damages. Continue reading

Federal Circuit Decision Final Word on Jurisdiction for Hatch-Waxman Act Patent Suits?

federal circuitOn June 20, 2016, the US Court of Appeals for the Federal Circuit declined to rehear en banc a panel’s decision in Acorda Therapeutics v. Mylan Pharmaceuticals from this past March.  The panel in Acorda ruled that when a generic drug manufacturer files with the FDA an Abbreviated New Drug Application (ANDA) for approval to market a generic drug, that manufacturer is subject to personal jurisdiction in any jurisdiction in which it plans to direct sales of that drug if and once FDA approves its ANDA.  Since then, three district courts in four separate decisions have applied Acorda to deny a generic manufacturer’s Federal Rule of Civil Procedure 12(b)(2) motion based, at least in large part, on the ANDA filing.   Continue reading

WLF’s Annual End-of-Term Review Assesses Key Supreme Court Free-Enterprise Decisions

The U.S. Supreme Court: October 2015 Term Review

Speakers: The Honorable Jay Stephens, Kirkland & Ellis LLP; Andrew J. Pincus, Mayer Brown LLP; Elizabeth P. Papez, Winston & Strawn LLP; Jeffrey B. Wall, Sullivan & Cromwell LLP

Our speakers discussed Court rulings in the areas of class actions, arbitration, the federal False Claims Act, intellectual property, federal regulation, and property rights.

Supreme Court Will Address Two Key Patent “Inter Partes” Review Standards in “Cuozzo Speed Technologies” Case

Kaminski_Jeffri_LRFeatured Expert Contributor – Intellectual Property (Patents)

By Jeffri A. Kaminski, Partner, Venable LLP, with Leslie A. Lee, Associate, Venable LLP

In Cuozzo Speed Technologies v. Lee, the US Supreme Court will be deciding two important issues with respect to patent claim constructions in Inter Partes review (IPR) proceedings.  An IPR is a procedure instituted in the America Invents Act of 2012 (AIA) for challenging the validity of a United States patent before the United States Patent and Trademark Office (USPTO).  In Cuozzo the Court will resolve 1) what claim-construction standard should be used by the Patent Trial and Appeal Board (PTAB) in determining patent validity, and 2) whether the PTAB’s decisions are judicially reviewable.  PTAB is the entity within the USPTO that oversees IPR proceedings.  The case is set for oral argument on Monday, April 25. Continue reading

Federal Law Enforcers’ True Intentions: What’s Behind their Opposition to “Mens Rea” Reform?

lynchAmerica’s highest ranking law-enforcement officer, Attorney General of the United States Loretta Lynch, has gotten directly involved in the debate over the proper standard of criminal intent (known in legalese as mens rea) in federal laws. At a March 9 Senate Judiciary Committee oversight hearing, Attorney General Lynch, while generally cautious in her response to Senators’ questions, endorsed the Department of Justice’s use of strict-liability laws to, among other things, “ensure the safety of our food and drugs.” Attorney General Lynch’s statement reflects the federal government’s long-standing belief that criminal prosecution is an appropriate and effective business regulatory tool. The government’s heavy reliance on regulatory crimes is why the Justice Department and other federal agencies oppose such common-sense reforms as a default culpability standard of “willful” or “reckless” for federal laws that lack an intent requirement. Heightened intent standards would complicate regulation-by-prosecution, an outcome the Obama Administration and some elected officials are desperate to prevent. Continue reading

Federal Circuit Has an Opportunity to Curtail Patent Litigation Tourism in TC Heartland Case

Fairfield Inn, Tyler, Texas

Fairfield Inn, Tyler, Texas

This afternoon, the U.S. Court of Appeals for the Federal Circuit will hear oral arguments in In re: TC Heartland, LLC. The case implicates the fundamental issue of where plaintiffs alleging patent infringement can file suit. Washington Legal Foundation was one of only two institutions to file an amicus brief in support of TC Heartland’s mandamus petition. WLF agrees that the patent venue statute does not permit TC Heartland to be sued in the District of Delaware. But our brief asks the Federal Circuit to also overrule its 1994 Beverly Hills Fan Co. v. Royal Sovereign Corp. decision. That decision, which allows nationwide corporations to be sued in any federal district where it does business, has precipitated the current epidemic of forum shopping by patent trolls. The availability of forum shopping inspires frivolous litigation that diverts businesses’ resources from innovation. Continue reading