patent law

The pharmaceutical industry is asking Congress to exempt drug patents from an administrative procedure that allows patent challenges without having to go to federal court, The Wall Street Journal's Joseph Walker reports. But the Congressional Budget Office has found that enacting the exemption would delay the entry of new generic medicines to the market and would cost federal healthcare programs $1.3 billion over 10 years.

Jacob S. Sherkow, an associate law professor at New York Law School, told the WSJ that challenges to technology patents have been successful through the administrative procedure, but most pharma cases haven't been decided yet.

The pace of patent litigation has fallen for the first time in five years, which can be directly traced to the U.S. Supreme Court's ruling last year about software patents in Alice Corp. v. CLS Bank, The Washington Post's Brian Fung reports. That case raised the bar for patentability and enforcement of software patents.

Bloomberg's Susan Decker had an interesting piece this week: firms that aggressively pursue patent litigation have found their business model to be less lucrative after the U.S. Supreme Court limited what types of software are eligible for legal protection and after the Patent and Trademark Office changed how it reviews patent disputes. Total patent lawsuits declined 23 percent in the third quarter of the year, Bloomberg reports. Adam Mossoff, a law professor at George Mason University said the changes show that Congress doesn't need to take up patent reform in 2015.

Jeff John Roberts, writing in Gigaom, reports on data that shows that patent trolls, less frequently called "non-practicing entities," have gotten three times the damages in court than "real companies." The reasons for the higher damages awards for patent trolls? Lawyer Michael Strapp told Roberts that includes the "the economic model of patent trolling, which in many cases entails the troll building up a legal war chest by squeezing settlements from dozens of smaller companies, and then suing a big fish." Another reason is suing in favorable venues like East Texas and Delaware.

The Gigaom piece has some great charts, so I highly recommend checking it out.

The Federal Circuit, which has exclusive appellate jurisdiction over patents, has made patent law more favorable to patentholders, leading to a surge in litigation, Vox's Timothy B. Lee reports. The U.S. Supreme Court has been scrutinizing the intermediate appellate court more frequently, reviewing a record six rulings last term, Lee further reports: "In a new essay, University of California, Hastings law professor Robin Feldman writes about the Supreme Court's increasingly blunt efforts to force the Federal Circuit to respect the high court's own precedents, which generally place stricter limits on patent rights ... In all of [six] cases [from last term], Feldman told me, "the Supreme Court soundly and unanimously rejected the Federal Circuit's logic." For example, the Supreme Court struck down a software patent in CLS Bank v. Alice.

The U.S. Supreme Court ruled this week that software based on an abstract idea isn't eligible for patent protection, Politico reports. The decision in Alice Corporation Pty. Ltd. v. CLS Bank International did not end the patentability of all software nor provide a clearer test for when software can be patented, Politico further reports.

The U.S. Supreme Court has agreed to take up a case involving Teva Pharmaceutical Industries Ltd.'s top selling drug, Copaxone, The Philadelphia Inquirer reports. The case could impact patent litigation, including because Teva asked the Supreme Court to require the Federal Circuit to be more deferential to lower court ruings.

The U.S. Supreme Court seemed skeptical of changing how software patents are enforced during oral argument Monday, Re/code reports: "On Monday, the court heard arguments in a case that could have far-reaching implications for the software industry, as the justices took up the issue of whether the Patent Act authorizes the granting of patents on software based on abstract ideas."

Alice Corp. argues that its patents for its software, designed to reduce the risk of non-payments, were infringed by CLS Bank International, but some of the justices questioned how its patents weren't just a computer version of an unpatentable abstract idea, Re/code said.

The U.S. Supreme Court is slated to hear arguments tomorrow on whether software can continue to be patented, The Washington Post reports: "The case, Alice Corp. v. CLS Bank, focuses on software built to eliminate 'settlement risk' in currency and financial transactions where money is held in escrow and one party could renege on a deal and leave the other holding the bag. Alice Corp. claims that CLS Bank offers a service that infringes on its patent."

In a 1981 case, the court ruled that patents for inventions that tied a computer program to a real-world application were permissible, but patents involving solely a "mathemetical forumula" were not, The Post reports.

A group of 73 "organic and conventional family farmers, seed companies and public advocacy interests" lost their effort to have the U.S. Supreme Court reconsider lower-court rulings that they could not be sued for violating Monsant's biotech seed patents if their fields became "inadvertently contaminated with its patented genetic traits for corn, soybeans, cotton, canola and other crops," Midwest Producer reports. Monsanto argued that a "'a blanket covenant not to sue any present or future member of petitioners' organizations would enable virtually anyone to commit intentional infringement,'" Midwest Producer further reports.