Author Info for Mintz - Intellectual Property Viewpoints

Lisa Adams

Best Practices for Clearances and Opinions

Last week, Mintz Member Lisa Adams moderated a panel discussion between in-house attorneys that covered best practices for conducting patent clearances and obtaining non-infringement and invalidity opinions. The panel…more

Claim Construction, Noninfringement, Patent Infringement, Patent Invalidity, Patent Litigation

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Kevin Amendt

A Typo to Remember: Erroneous Patent Number in Terminal Disclaimer Destroys Exclusive Rights

Co-authored by Sam Cohen, Summer Associate 2024. On May 29, 2024, the Western District of Oklahoma in SIPCO, LLC v. JASCO Prods. Co. dismissed the plaintiff SIPCO’s patent infringement claims against defendant JASCO because of a…more

Corporate Counsel, Obviousness, Obviousness-Type Double Patenting (ODP), Patent Infringement, Patent Litigation

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Nicholas Armington

How Your Trade Secret Could Help to Defend Against Claims of Patent Infringement

For companies that need to protect their valuable intellectual property, the choice between trade secret and patent protection can be a difficult one. There are benefits to either approach..…more

Artificial Intelligence, Intellectual Property Protection, Machine Learning, Patent Infringement, Patent Prosecution

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Linda Azrin

Not just for crypto – How blockchain technology will affect medical devices

Most people are familiar with blockchain technology because of its use in cryptocurrency, but its use is going to be far more widespread than just as a ledger for digital currency. As explained in a previous blog post,…more

Blockchain, Distributed Ledger Technology (DLT), Electronic Medical Records, Health Care Providers, Manufacturers

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Adam Banes

Need Prior Art? Here’s How to Search the PTO Database of Patents Like a Patent Examiner

A frequent pain point in the realm of patents is being unable to find pertinent patent publications quickly and efficiently. In an attempt to provide the public with better search tools, the United States Patent and Trademark…more

Patent Search, Patents, Prior Art, USPTO

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Ingrid Beattie, PhD

The Importance of Getting Inventorship Right: A Cautionary Tale in Two Cases

U.S. patent law elevates the importance of “the inventor” to an extent unseen in the rest of the world. Unlike many other countries, ownership of patent applications in the United States initially vests in the inventors listed…more

Appeals, Assignment of Inventions, Dismissals, Employment Contract, Former Employer

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Victor Behar, PhD

Reduced Scope of March-in Rights Under Bayh Dole Rules Revisions

The Bayh Dole Act was enacted to provide incentives to promote commercialization of federally funded inventions and was designed to capitalize on the significant government investments in small business, university research, and…more

Bayh-Dole Act, Biden Administration, IP License, March-in-Rights, Patents

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Joshua Berk

AI in Biotech and Synthetic Biology: What Can Be Protected? What Should Be Kept Secret?

Machine learning (ML), bioinformatics, artificial intelligence (AI), and other computational tools have become ubiquitous in the biotech and synthetic biology industries because such technology allows for rapid processing of a…more

Artificial Intelligence, Biotechnology, Intellectual Property Protection, Machine Learning, Patents

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Melissa Brayman, PhD

Representations Made by a Patentee during Foreign Prosecution May Be Used in Claim Construction for U.S. Patents

Claim construction, the process by which a court interprets the scope and meaning of a patent’s claims, is a crucial part of patent litigation. In fact, claim construction can make or break a patentee’s case for infringement…more

Claim Construction, Foreign Jurisdictions, Foreign Patent Applications, Intellectual Property Protection, Patent Infringement

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Paul Brockland

PTAB Continues Streak of IPR Denials

US Patent Trial and Appeal Board (PTAB) institution denials for inter partes review (“IPR”) and other post-grant review petitions have steadily risen from 13 percent in 2012 to 44 percent in 2020. In 2020, the institution rate…more

Burden of Persuasion, Denial of Institution, Inter Partes Review (IPR) Proceeding, Patent Litigation, Patent Trial and Appeal Board

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Kathleen Carr

District of Delaware Dismisses ANDA Applicant for Lack of Venue under TC Heartland and In re Cray

On June 17, 2019, the United States District Court for the District of Delaware, in Novartis Pharmaceuticals Corp. v. Accord Healthcare Inc., et al., No. 18-cv-01043, held that venue was not proper in Delaware over Mylan…more

Abbreviated New Drug Application (ANDA), Bristol-Myers Squibb, Dismissals, FRCP 12(b)(3), Generic Drugs

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Sean Casey

A Business Deal Could Kill Your Right to Challenge a Patent’s Validity

Last week, the Federal Circuit issued a decision holding that parties can contractually bargain away their rights to file petitions for Inter Partes Review (“IPR”) at the Patent Trial and Appeals Board (“the Board”). This…more

Confidentiality Agreements, Corporate Counsel, Forum Non Conveniens, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Jenny Chen, PhD

How Can the Updated USPTO Guidance on Determining Obviousness Help You?

Recent guidance published in the Federal Register by the United States Patent and Trademark Office (USPTO) explains some of what is required by patent examiners in making an obviousness case under 35 U.S.C. § 103. Since it is…more

Intellectual Property Protection, Inventions, New Guidance, Obviousness, Patents

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Stephen Chen

He Got the MrBeast Blueprint… and a Trade Secret Lawsuit

Imagine getting your hands on the ultimate creator cheat code — the behind-the-scenes playbook MrBeast uses to dominate YouTube. Now imagine going viral not for using it, but for allegedly walking off with it. That’s exactly…more

Breach of Contract, Confidential Information, Data Security, Defend Trade Secrets Act (DTSA), Employer Liability Issues

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Iris Cheung, PhD

Do Patent Claims to Methods of Treatment Cover In Vivo Transformations?

Where an alleged infringer administers a substance A to a subject, and the substance is subsequently transformed to a therapeutic agent X inside the subject’s body, does the administration of the substance A constitute an act of…more

Claim Construction, Patent Infringement, Patent Litigation, Patents, Pharmaceutical Industry

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Derek Constantine

Emerging Legal Trends AI: Can Israel Join the U.S. and Europe as a Leader in AI Protections?

The intersection of artificial intelligence (AI) and intellectual property invokes fascinating theoretical questions. For example, can a machine own an invention? Or be liable for the consequences of its actions? However, with…more

Artificial Intelligence, Computer-Related Inventions, Innovation, Intellectual Property Protection, Israel

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Peter Corless

USPTO Releases Final Rules on PTA Calculations in view of Supernus

On June 16, 2020, the U.S. Patent and Trademark Office (USPTO) released final rules (the “Rules”) implementing changes to how Patent Term Adjustment (PTA) is calculated in certain circumstances in view of Supernus Pharms., Inc…more

European Patent Office, Final Rules, Information Disclosure Statement, Patent Applications, Patent Litigation

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Peter Cuomo

Federal Circuit Affirms PTAB’s Analysis Finding Product-by-Process Claim Narrowed During Prosecution Valid Over Prior Art

In a precedential opinion issued on March 4, 2025, in Restem, LLC v. Jadi Cell, LLC, No, 23-2054, the U.S. Court of Appeals for the Federal Circuit affirmed the PTAB’s claim construction and ruling that product-by-process claims…more

Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Obviousness, Patent Infringement, Patent Litigation

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Andrew DeVoogd

A Typo to Remember: Erroneous Patent Number in Terminal Disclaimer Destroys Exclusive Rights

Co-authored by Sam Cohen, Summer Associate 2024. On May 29, 2024, the Western District of Oklahoma in SIPCO, LLC v. JASCO Prods. Co. dismissed the plaintiff SIPCO’s patent infringement claims against defendant JASCO because of a…more

Corporate Counsel, Obviousness, Obviousness-Type Double Patenting (ODP), Patent Infringement, Patent Litigation

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Reza Dokhanchy

Ahoy! ITC Welcomes SEP Holders Navigating for The Best Venue

Given the recent unanimous decision by a UK appellate court that Ericsson’s injunction efforts based on standard-essential patents (“SEPs”) were, essentially by their very nature, “hold-up” and “coercion” that violated…more

Antitrust Provisions, Competition, Enforcement Actions, FRAND, Intellectual Property Protection

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Nicholas Eadie

PATENT 101: Key Considerations and Activities for Establishing a Patent Program (Part 2 of 3)

Tasked with starting an innovation protection and patent development program at your company but do not know where to begin? This three part series describes the key components to a patent development program for any company,…more

Competition, Exclusivity, Inventions, Inventors, Licenses

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Hannah Edge

The Federal Circuit Swings the Door to Anti-Suit Injunctions Back Open

In our blog, Another Implementer Hold Out Door Closes: The Death of the Anti-Suit Injunction? earlier this year, we suggested that a popular implementer patent hold out tactic may be off the table based on an order issued by…more

Anti-Suit Injunctions, FRAND, License Agreements, Popular

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Jonathan Engler

I Spy a Trade Secret: Conducting Proper Trade Secret Asset Management Review to Avoid Sufficiency Failure in Litigation

A recent trade secret matter pending in federal court in California shows the pitfalls of a company’s failing to do trade secret asset management before filing a trade secret lawsuit, and also highlights some important lessons…more

Asset Management, Defend Trade Secrets Act (DTSA), Intellectual Property Litigation, Intellectual Property Protection, Misappropriation

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Oliver Ennis

An Emerging Split on the Applicability of the Inevitable Disclosure Doctrine Under the DTSA

Federal courts remain split on whether the Defend Trade Secrets Act (DTSA) allows for trade secret misappropriation claims brought under a theory of inevitable disclosure. Given this current patchwork of treatment of inevitable…more

Defend Trade Secrets Act (DTSA), Employment Policies, Inevitable Disclosure Doctrine, Jurisdiction, Misappropriation

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F. Jason Far-hadian

Federal Circuit Says Automated Systems Are Not Abstract when Tied to Improvements

It is now over 10 years since the Bilski decision was handed down by the United States Supreme Court. In that decision and several other decisions that followed (i.e., Mayo, Myriad, and Alice), the Supreme Court pronounced…more

Abstract Ideas, Patent Invalidity, Patent Litigation, Patent-Eligible Subject Matter, Patents

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Dean Farmer, PhD

Picture Claims as an Effective Patent Strategy: Top 10 Reasons to Precisely Tailor Your Patent Claim

A “picture” claim refers to a patent claim precisely tailored to track a particular product’s important advantages and features. When drafting a patent application, one should describe various embodiments of the invention and…more

Enforcement, Fund-raising, Inventions, Patent Applications, Patent Validity

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Anthony de Fazekas

Best Practices in Developing Winning IP Strategies for AI Companies

Intangible assets represent over 90% of the value of every AI company. An effective IP strategy can help protect these assets and steer your Company to higher valuations and provide leverage in commercialization of your…more

Artificial Intelligence, Contract Terms, Digital Assets, Innovation, Intellectual Property Protection

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Gabriella Flick

The Prevailing Winds of Public Interest: Tailoring Injunctive Relief in Patent Litigation Through Carve Outs

Grants of permanent injunctions in U.S. district court patent litigation remain uncommon since the landmark decision in eBay v. MercExchange. LexMachina’s 2021 Patent Litigation Report highlights that courts grant fewer than…more

Carbon Emissions, Carve Out Provisions, Climate Change, Inflation Reduction Act (IRA), Offshore Wind

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John Forrest

USPTO Proposes Fee Increases for FY 2017

The USPTO has published its notice of proposed rulemaking for the FY 2017 patent fee schedule in the Federal Register. The USPTO proposes fee increases to recover its estimated costs for patent operations and achieve its…more

America Invents Act, Covered Business Method Proceedings, Federal Register, Inter Partes Review (IPR) Proceeding, Patent Fees

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Laura Franco

Whose Profits Are These, Anyway? Who Constitutes The Defendant For Purposes of Disgorgement Of Profits In A Trademark Infringement Case

In a unanimous (and unsurprising) decision on Wednesday, the Supreme Court vacated an award of nearly $43 million in disgorged profits to a trademark infringement plaintiff because those profits were not attributable to the…more

Appeals, Corporate Governance, Damages, Dewberry Group Inc v Dewberry Engineers Inc, Disgorgement

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Geoffrey Friedman

United States Supreme Court Rules for Google in a Landmark Fair Use Decision

On April 5, 2021, the United States Supreme Court handed down a decision that could have profound implications in the software industry. It held 6-2 that Google’s copying of 11,500 lines of code from Oracle’s Java SE API in…more

Copyright, Copyright Infringement, Copyright Litigation, Fair Use, Google

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Matthew Galica

France Has Entered the Chat: Sun Patent Trust Asks French Court to Determine Global FRAND Rate for LTE-Advanced SEPs

Last week, Sun Patent Trust sued Xiaomi in France for infringement of patents claimed to be essential to the LTE-Advanced standard. In its suit, Sun Patent Trust asked French courts to set a global FRAND rate—something that has…more

EU, France, FRAND, Intellectual Property Protection, Licenses

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Vishak Ganesh

AI-Based Patent Applications: Recent History and the Future

The emergence of artificial intelligence (AI) as a field of technology has correlated with an increase in patent application filings on AI-related inventions over the past two decades. With more filings than ever, businesses and…more

Artificial Intelligence, EU, Google, IBM, Inventions

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Amritaa Ganguly

USPTO Issues Artificial Intelligence Strategy

Artificial Intelligence (AI) in intellectual property is as big – and as fast-changing – a topic as ever. On January 14, 2025, the U.S. Patent and Trademark Office (USPTO) published an Artificial Intelligence Strategy (“USPTO’s…more

Artificial Intelligence, Data Privacy, Data Protection, Executive Orders, Innovative Technology

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William Geary

10 Millionth U.S. Patent Issues Today

Further to our previous blog post, the U.S. Patent and Trademark Office reported that the 10 millionth patent issued today with the new patent cover design…more

Covered Business Method Patents, Design Patent, Intellectual Property Protection, Inventions, Patent Applications

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Frank Gerratana

Understanding How to Patent Agentic AI Systems

Artificial intelligence is evolving beyond simple pattern recognition and content generation into autonomous decision-making. Agentic AI systems act independently—or with limited human supervision—to achieve specific objectives…more

Algorithms, Artificial Intelligence, Innovation, Intellectual Property Protection, Machine Learning

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Richard Gervase, Jr.

Fast Track to Justice for Trade Secret Theft at the ITC: New Senate Bill Would Expand ITC Authority to Curtail Trade Secret Theft by Foreign Governments

Amid the continuing threat to U.S. intellectual property rights posed by foreign actors, the International Trade Commission (ITC) is poised to become the latest federal agency to bolster protections for U.S. IP owners. The ITC’s…more

Foreign Governments, Imports, Intellectual Property Protection, International Trade Commission (ITC), Patent Infringement

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Jeffery Giering, PhD

Copy Cats II: Nexus of Copying Required to Substantiate Non-Obviousness

On January 28, 2021, the Federal Circuit affirmed the general principle that the mere fact of copying by an accused infringer is insufficient to rebut a charge of obviousness (L’Oreal USA, Inc. v. Olaplex, Inc.; appeal from…more

Confidential Information, L'Oreal, Obviousness, Patent Infringement, Patent Litigation

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Michael Graif

Supreme Court: Parody Not a Shield from Trademark Infringement

In Jack Daniels Properties, Inc. v. VIP Products LLC, (slip. op. No. 22-148, June 8, 2023), the United States Supreme Court reversed the Ninth Circuit, ruling that a “Bad Spaniels” dog toy designed to look like a Jack Daniels…more

Cease and Desist, Dilution, First Amendment, Intellectual Property Protection, Jack Daniels Properties Inc v VIP Products LLC

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Kara Grogan

Discretion Retained: USPTO Dodges Attack from Big Tech to Rein in Discretionary IPR Denials

The U.S. Patent and Trademark Office (USPTO) recently thwarted an attempt by big tech companies such as Apple, Cisco, Google, and Intel, to rid themselves of discretionary denials under the Fintiv factors. While these companies…more

America Invents Act, Big Tech, Inter Partes Review (IPR) Proceeding, Patent Infringement, Patent Ownership

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Mark Hammond

Strengthen Software Claims Against Alice Challenges through Coined Terms and Depicting Technical Advantages in Figures

The Federal Circuit recently provided strategic guidance for defending software claims against Alice challenges that claims recite ineligible patent subject matter under 35 U.S.C. § 101. In Mentone Solutions LLC v. Digi…more

Abstract Ideas, Alice/Mayo, Patent Litigation, Patent-Eligible Subject Matter, Patents

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Joanne Hawana

Regulation, Enforcement, and Associated Challenges: Part II

Given the continued challenges in policing the burgeoning ENDS marketplace, as previously discussed in Part I of this article, in mid-2024 FDA and DOJ announced the establishment of a federal multi-agency task force to combat…more

Civil Monetary Penalty, Customs and Border Protection, Department of Justice (DOJ), E-Cigarettes, Enforcement Actions

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Peter Hecker, PhD

USPTO Takes a Hint from European Practice in Addressing Late Continuation Concerns

As expected, the United States Patent and Trademark Office (USPTO) is raising its fees this year, effective January 19, 2025. However, the USPTO is doing something a little unusual this time—they’re raising the cost of filing…more

Continuation Applications, European Patent Office, Fees, Filing Fees, Patents

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Fred Hernandez

Key Lessons from Patent Litigation for Drafting and Prosecuting Utility Patent Applications

In almost every U.S. patent suit, the patentee’s counsel considers how the case could have been facilitated had the patent at issue been drafted and prosecuted differently. These considerations demonstrate that patents should…more

Claim Construction, Corporate Counsel, Covered Business Method Patents, Patent Applications, Patent Litigation

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Courtney Herndon

The Federal Circuit Swings the Door to Anti-Suit Injunctions Back Open

In our blog, Another Implementer Hold Out Door Closes: The Death of the Anti-Suit Injunction? earlier this year, we suggested that a popular implementer patent hold out tactic may be off the table based on an order issued by…more

Anti-Suit Injunctions, FRAND, License Agreements, Popular

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David Hollander

Federal Circuit Rejects Google’s Bid To Shrink ITC Jurisdiction over Post-Importation Acts of Indirect Infringement

In the wake of the Supreme Court’s elimination of “Chevron deference” in the Loper decision, many commentators have suggested that the ITC’s authority over unfair imports under Section 337 might be curtailed. See Loper Bright…more

Chevron Deference, En Banc Review, Google, Imports, Indirect Infringement

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Matthew Hurley

Amazon’s Utility Patent Neutral Evaluation Proceeding: Let the Seller Beware

Speed and efficiency have long been Amazon’s hallmarks, and its dispute resolution system for patent infringement claims is no exception. Amazon’s Utility Patent Neutral Evaluation (“UPNE”) proceeding is quickly emerging as an…more

Amazon, Declaratory Judgments, Neutral Evaluation Program, Patent Infringement, Patent Invalidity

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Kathryn Lafferty Ignash

Navigating the Legalization of Hemp under the 2018 Farm Bill Involves Changes to the Issuance of Federal Trademarks in the Cannabis Industry

Legalizing “hemp” under the Agricultural Improvement Act of 2018 (2018 Farm Bill) has triggered an important change for the examination of federal trademark applications concerning cannabis and cannabis-derived goods and…more

Agribusiness, Cannabidiol (CBD) oil, Controlled Substances Act, Corporate Counsel, Farm Bill

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Kenneth Jenkins, PhD

How Can the Updated USPTO Guidance on Determining Obviousness Help You?

Recent guidance published in the Federal Register by the United States Patent and Trademark Office (USPTO) explains some of what is required by patent examiners in making an obviousness case under 35 U.S.C. § 103. Since it is…more

Intellectual Property Protection, Inventions, New Guidance, Obviousness, Patents

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Steven Jensen

With Software Patents and Means-Plus-Function, “Structure” Takes On a New Meaning

Functional Claiming in Software Patents - Software patents are generally directed to a sequence of steps or rules, i.e., an algorithm, performed by a computer programmed to carry out the algorithm. Because algorithms are…more

Algorithms, Claim Limitations, Computer-Related Inventions, Indefiniteness, Intellectual Property Protection

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Lee Johnson, PhD

Why companies may want to accelerate marketing approval for their patented drugs in Canada

Patent Term Extensions (e.g., in the United States), Supplementary Protection Certificates (e.g., in Europe), and other similar extensions compensate the owner of a patent covering certain approved medical products for the time…more

Canada, Certificates of Supplementary Protection (CSPs), CETA, EU, Marketing

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Matthew Karambelas

Has There Been A Sea Change in Eligible Domestic Industries at the ITC That Will Last?

For decades, the ITC’s jurisdictional requirement – known as the domestic industry requirement – effectively shut out innovators from availing themselves of the powerful remedies of the forum, in the form of an exclusion order…more

Administrative Law Judge (ALJ), Appeals, Appellate Courts, Design Patent, En Banc Review

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William Kezer, PhD

USPTO Prepares to Celebrate the Issuance of the Ten Millionth U.S. Patent

The United States Patent and Trademark Office (USPTO) anticipates issuing the 10 millionth utility patent at some point during the summer 2018. According to the USPTO, “[t]his milestone of human ingenuity perhaps exceeds even…more

Design Patent, Inventions, Patent Applications, Patents, USPTO

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Robert Kidwell

Korean Ruling Places Qualcomm’s Business Model at Risk

On December 28, 2016, the Korean Fair Trade Commission (KFTC) issued a steep fine (“KFTC Ruling”) against Qualcomm for antitrust violations in patent licensing and modem chip sales – a record penalty that the U.S. company will…more

Antitrust Violations, Fair Trade Commissions, FRAND, Korea, Patents

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Hanna Kim, PhD

Patenting AI/ML Life Sciences and TechBio Innovations – How Much Disclosure is Sufficient?

In recent years, the rapid advancement of artificial intelligence (AI) and machine learning (ML) technologies has sparked a wave of innovation across various sectors, particularly in life sciences. ML technologies have…more

Artificial Intelligence, Food and Drug Administration (FDA), Intellectual Property Protection, Life Sciences, Machine Learning

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Elissa Kingsland

Determining Entity Status Before the United States and Patent Trademark Office: Large, Small, or Micro?

At the time of filing any patent application with the United States and Patent Trademark Office (USPTO), patent applicants must designate their entity status. Selecting the correct entity status can significantly reduce costs,…more

America Invents Act, Fees, Higher Education Act, Micro Entity Status, Nonprofits

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Rithika Kulathila

Genus Claims: Foiled again by Written Description

In late August of 2021, the Federal Circuit reversed a jury verdict of $1.2 billion in favor of Juno Therapeutics and Sloan Kettering Institute because the jury’s finding that four of the asserted patent claims did not lack…more

Patent Litigation, Patents, Pharmaceutical Patents, Reversal

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Adrian Kwan

Another One Bites the Dust – N.D. Tex. Dismisses Antitrust Claims re FRAND Commitments with Prejudice

In the latest decision addressing antitrust liability for FRAND commitments, Judge Barbara M. G. Lynn of the Northern District of Texas dismissed a complaint from Continental Automotive Systems, Inc. (“Continental”) alleging,…more

Anti-Competitive, Antitrust Violations, Bargaining Power, Breach of Contract, Declaratory Judgments

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Harold Laidlaw

AbbVie’s Enforcement of its ‘Patent Thicket’ For Humira Under the BPCIA Does Not Provide Cognizable Basis for an Antitrust Violation

In a recent decision in In Re Humira (Adalimumab) Antitrust Litigation, No. 19-cv-1873, Judge Shah of the Northern District of Illinois dismissed a consolidated class action complaint filed by U.S. purchasers of AbbVie Inc.’s…more

Anti-Competitive, Antitrust Injuries, Antitrust Litigation, Biopharmaceutical, Biosimilars

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Justin Leisey

Obviousness-Type Double Patenting and Divisional Applications in Canada

Obviousness-type double patenting (“OTDP”) arises when two or more patents or applications include claims that, while not being identical, are not patentably distinct from each other. In the U.S., OTDP rejections can be…more

Canada, Canadian Patent Office, Double Patent, Obviousness, Obviousness-Type Double Patenting (ODP)

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Muriel Liberto, PhD

With its Vanda Pharma and Berkheimer memos, USPTO provides increased clarity around personalized medicine patent eligibility

In the time since the Federal Circuit issued its Vanda Pharma decision in April, Vanda Pharm. Inc. v West-Ward Pharm. Intl. Ltd. 887 F.3d 1117 (Fed. Cir. 2018) the US Patent and Trademark Office (USPTO) has issued two memos to…more

Evidence, Intellectual Property Protection, Patent Examinations, Patent-Eligible Subject Matter, Patents

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Nana Liu

PTAB statistics show interesting trends for Orange Book and biologic patents in AIA proceedings

The Patent Trial and Appeal Board (“PTAB”) regularly tracks statistics regarding administrative trials conducted under the processes created by the America Invents Act (“AIA”), which provide insight into recent trends occurring…more

Abbreviated New Drug Application (ANDA), America Invents Act, Biologics, BPCIA, Food and Drug Administration (FDA)

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Amy LoBue

Ahoy! ITC Welcomes SEP Holders Navigating for The Best Venue

Given the recent unanimous decision by a UK appellate court that Ericsson’s injunction efforts based on standard-essential patents (“SEPs”) were, essentially by their very nature, “hold-up” and “coercion” that violated…more

Antitrust Provisions, Competition, Enforcement Actions, FRAND, Intellectual Property Protection

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Monique Winters Macek

Benefits of Using Copyrights to Protect Artificial Intelligence and Machine Learning Inventions

We previously discussed which portions of an artificial intelligence/machine-learning (“AI/ML”) platform could be patented or protected under trade secret, such as related to biotech and synthetic biology. Equally important to…more

Artificial Intelligence, Copyright, Copyright Infringement, Inventions, Machine Learning

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Marguerite McConihe

Five Tips For Every In-House Counsel Launching an Open Source Software Program

Used properly, Open Source Software (OSS) is an excellent tool. It saves your business time and money, enables interoperability of product platforms, and developers love it. But used improperly, it can be financially and…more

Bad Actors, Copyright, Copyright Infringement, Guidance Documents, Licenses

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Peter McFadden, PhD

Federal Circuit Affirms Delisting of REMS System Patent from FDA Orange Book

On February 24, 2023, the U.S. Court of Appeals for the Federal Circuit, in Jazz Pharmaceuticals, Inc., v. Avadel CNS Pharmaceuticals, LLC, Case No. 23-1186, affirmed a decision from the District Court of Delaware directing Jazz…more

Abbreviated New Drug Application (ANDA), Appeals, Federal Food Drug and Cosmetic Act (FFDCA), Federal Trade Commission (FTC), Food and Drug Administration (FDA)

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Timothy McKeon

U.S. Supreme Court Adopts Rule Protecting a Trademark Licensee’s Ability to Use a Trademark after a Bankrupt Licensor’s Rejection of the License

This past May, in a highly-anticipated decision, the Supreme Court held in Mission Product Holdings, Inc. v. Tempnology, LLC that a debtor’s rejection of an executory contract under Section 365 of the Bankruptcy Code has the…more

Bankruptcy Appellate Panel (BAP), Bankruptcy Code, Breach of Contract, Chapter 11, Commercial Bankruptcy

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Michael McNamara

DOJ Breaking with Big Tech Approach to SEPs

On June 8, 2022, the DOJ, USPTO, and the National Institute of Standards and Technology (NIST) (collectively, the Agencies) issued a new statement on FRAND licensing (2022 Statement) providing no set policy regarding Standards…more

Department of Justice (DOJ), FRAND, Licenses, NIST, Patents

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William Meunier

A Business Deal Could Kill Your Right to Challenge a Patent’s Validity

Last week, the Federal Circuit issued a decision holding that parties can contractually bargain away their rights to file petitions for Inter Partes Review (“IPR”) at the Patent Trial and Appeals Board (“the Board”). This…more

Confidentiality Agreements, Corporate Counsel, Forum Non Conveniens, Inter Partes Review (IPR) Proceeding, Patent Trial and Appeal Board

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Joseph Miller

Another One Bites the Dust – N.D. Tex. Dismisses Antitrust Claims re FRAND Commitments with Prejudice

In the latest decision addressing antitrust liability for FRAND commitments, Judge Barbara M. G. Lynn of the Northern District of Texas dismissed a complaint from Continental Automotive Systems, Inc. (“Continental”) alleging,…more

Anti-Competitive, Antitrust Violations, Bargaining Power, Breach of Contract, Declaratory Judgments

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Marc Morley

Reduced Scope of March-in Rights Under Bayh Dole Rules Revisions

The Bayh Dole Act was enacted to provide incentives to promote commercialization of federally funded inventions and was designed to capitalize on the significant government investments in small business, university research, and…more

Bayh-Dole Act, Biden Administration, IP License, March-in-Rights, Patents

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Nicholas Mouton

Federal Circuit Invalidates Claim to Generating “Financial Risk” Reports

In the recent decision of Clarilogic v. Formfree Holdings, the Federal Circuit invalidated the patentee’s (Formfree) claim to a “computer-implemented method for providing certified financial data indicating financial risk about…more

Abstract Ideas, CLS Bank v Alice Corp, Computer-Related Inventions, Machine-or-Transformation Test, Patent Applications

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Sebastian Navarro

Lensa: Are AI Art Generators Copyright Infringers?

Artificial Intelligence (AI) is now at our fingertips. No longer a concept hidden behind the walls of Big Tech and academia, AI programs are now available and accessible to everyone. Generative AI tools like ChatGPT have made…more

Artificial Intelligence, Copyright, Copyright Infringement, Derivatives, Fair Use

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Michael Newman

Federal Circuit Clarifies That Secondary Considerations Must Be Considered Both Individually And As A Whole In An Obviousness Analysis

On August 24, 2023, the U.S. Court of Appeals for the Federal Circuit, in Volvo Penta of the Ams. LLC v. Brunswick Corp., Case No. 22-1765, vacated a Final Written Decision of the Patent Trial and Appeal Board (PTAB) holding all…more

Appeals, Inter Partes Review (IPR) Proceeding, Obviousness, Patent Infringement, Patent Trial and Appeal Board

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Christine C. Pemberton, PhD

Why companies may want to accelerate marketing approval for their patented drugs in Canada

Patent Term Extensions (e.g., in the United States), Supplementary Protection Certificates (e.g., in Europe), and other similar extensions compensate the owner of a patent covering certain approved medical products for the time…more

Canada, Certificates of Supplementary Protection (CSPs), CETA, EU, Marketing

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Greg Penoyer

Avoiding Pitfalls: IP “Dos and Don’ts” for High-Tech Start Ups

Starting a high-tech company is a difficult, exhausting, and thrilling endeavor – one in which founders will face seemingly endless challenges, deadlines, and make or break decisions. From a venture’s inception, founders face…more

Capital Raising, Copyright, Early Stage Companies, Entrepreneurs, Intellectual Property Protection

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William Perkins

Performing a Service without Selling the Process Still Triggers the On-Sale Bar

Services play a large role in today’s economy, and it is important to be mindful of how certain pitfalls that apply to product-based intellectual property rights also apply to method or process-based intellectual property (“IP”)…more

Intellectual Property Protection, On-Sale Bar, Patent Applications, Patent Infringement, Patent Litigation

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Jessica Perry

Custom Servers Pin Netflix In the Eastern District of Texas

Patent owners searching for an appropriate venue for cases against alleged infringers may be able to point to the activity of an infringer’s agents, based on a new decision from the Eastern District of Texas. In recommending…more

Computer Servers, Internet Service Providers (ISPs), Netflix, Patent Infringement

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Laura Petrasky

Trade Secret Owners Need to Find the Facts Instead of Letting the Facts Find Them

Recent case law confirms that trade secret owners should proactively investigate any suspicions of theft, and if they do not, they may be at greater risk of being barred under the statute of limitations than they may expect. The…more

Compliance, Discovery, Evidence, Intellectual Property Litigation, Intellectual Property Protection

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Sophia Petrichenko

Regulation, Enforcement, and Associated Challenges: Part II

Given the continued challenges in policing the burgeoning ENDS marketplace, as previously discussed in Part I of this article, in mid-2024 FDA and DOJ announced the establishment of a federal multi-agency task force to combat…more

Civil Monetary Penalty, Customs and Border Protection, Department of Justice (DOJ), E-Cigarettes, Enforcement Actions

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Mark Pino

District of Delaware Dismisses ANDA Applicant for Lack of Venue under TC Heartland

On October 18, 2018, the United States District Court for the District of Delaware, in Bristol-Myers Squibb v. Mylan Pharmaceuticals Inc., No. 17-00379, held that venue was not proper in Delaware over Mylan Pharmaceuticals Inc…more

Abbreviated New Drug Application (ANDA), Bristol-Myers Squibb, Hatch-Waxman, Improper Venue, Mylan Pharmaceuticals

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Jinnie Reed

PTAB Guidance on Motions to Amend in View of Aqua Products

On November 21st, the PTAB issued guidance on motions to amend based on the Federal Circuit’s en banc decision in Aqua Products, Inc. v. Matal, 872 F.3d 1290 (Fed. Cir. 2017). In view of the Aqua Products decision, the PTAB will…more

Burden of Persuasion, Claim Amendments, Motion to Amend, Patent Ownership, Patent Trial and Appeal Board

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Michael Renaud

Ahoy! ITC Welcomes SEP Holders Navigating for The Best Venue

Given the recent unanimous decision by a UK appellate court that Ericsson’s injunction efforts based on standard-essential patents (“SEPs”) were, essentially by their very nature, “hold-up” and “coercion” that violated…more

Antitrust Provisions, Competition, Enforcement Actions, FRAND, Intellectual Property Protection

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Adam Rizk

Has There Been A Sea Change in Eligible Domestic Industries at the ITC That Will Last?

For decades, the ITC’s jurisdictional requirement – known as the domestic industry requirement – effectively shut out innovators from availing themselves of the powerful remedies of the forum, in the form of an exclusion order…more

Administrative Law Judge (ALJ), Appeals, Appellate Courts, Design Patent, En Banc Review

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Alexander Roan

Best Practices for Clearances and Opinions

Last week, Mintz Member Lisa Adams moderated a panel discussion between in-house attorneys that covered best practices for conducting patent clearances and obtaining non-infringement and invalidity opinions. The panel…more

Claim Construction, Noninfringement, Patent Infringement, Patent Invalidity, Patent Litigation

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Joseph Rutkowski

Federal Circuit Affirms PTAB’s Analysis Finding Product-by-Process Claim Narrowed During Prosecution Valid Over Prior Art

In a precedential opinion issued on March 4, 2025, in Restem, LLC v. Jadi Cell, LLC, No, 23-2054, the U.S. Court of Appeals for the Federal Circuit affirmed the PTAB’s claim construction and ruling that product-by-process claims…more

Intellectual Property Protection, Inter Partes Review (IPR) Proceeding, Obviousness, Patent Infringement, Patent Litigation

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Adam Samansky

Trade Secret Thieves, Beware! The DTSA Can Reach You and Your Sales Around the Globe.

It is no secret that the misappropriation of trade secrets frequently occurs outside the United States. In a global economy, where companies have locations and markets all around the world, it is not uncommon for trade secrets…more

Defend Trade Secrets Act (DTSA), Intellectual Property Protection, Misappropriation, Trade Secrets

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Carolina Säve

UPC Risks Unveiled: Navigating Outcome Trends and Parallel Revocation Strategies

The Unified Patent Court (UPC) is transforming the way patents are enforced and challenged in Europe with its broad jurisdiction and potential for harmonizing the patent enforcement situation in a significant part of the…more

EU, Intellectual Property Protection, Jurisdiction, Litigation Strategies, Patent Infringement

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Brad Scheller

Joint Development Agreements and Trade Secrets - Sweat the Small Stuff

Joint development, or “teaming agreements” regularly anticipate one party disclosing trade secret subject matter to its counterparty to facilitate the joint development effort. While most JDAs involve companies with distinct…more

Breach of Contract, Confidential Information, Contract Disputes, Damages, Intellectual Property Litigation

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Meena Seralathan

Benefits of Using Copyrights to Protect Artificial Intelligence and Machine Learning Inventions

We previously discussed which portions of an artificial intelligence/machine-learning (“AI/ML”) platform could be patented or protected under trade secret, such as related to biotech and synthetic biology. Equally important to…more

Artificial Intelligence, Copyright, Copyright Infringement, Inventions, Machine Learning

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Aarti Shah

New revised USMCA trade deal affects intellectual property rights, but not exclusivity period for biologics

On December 10, 2019, an agreement was reached between the United States, Mexico, and Canada on amendments to the U.S.-Mexico-Canada Agreement (“USMCA”). The USMCA, if ratified by each respective country, would replace the North…more

Biologics, Biotechnology, BPCIA, Copyright, Exclusivity

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Terri Shieh-Newton, PhD

Patenting AI/ML Life Sciences and TechBio Innovations – How Much Disclosure is Sufficient?

In recent years, the rapid advancement of artificial intelligence (AI) and machine learning (ML) technologies has sparked a wave of innovation across various sectors, particularly in life sciences. ML technologies have…more

Artificial Intelligence, Food and Drug Administration (FDA), Intellectual Property Protection, Life Sciences, Machine Learning

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Farrah Short

Korean Ruling Places Qualcomm’s Business Model at Risk

On December 28, 2016, the Korean Fair Trade Commission (KFTC) issued a steep fine (“KFTC Ruling”) against Qualcomm for antitrust violations in patent licensing and modem chip sales – a record penalty that the U.S. company will…more

Antitrust Violations, Fair Trade Commissions, FRAND, Korea, Patents

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Andrew Skale

Obviousness-Type Double Patenting and Divisional Applications in Canada

Obviousness-type double patenting (“OTDP”) arises when two or more patents or applications include claims that, while not being identical, are not patentably distinct from each other. In the U.S., OTDP rejections can be…more

Canada, Canadian Patent Office, Double Patent, Obviousness, Obviousness-Type Double Patenting (ODP)

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Peter Snell

Sales Projections and a “Litigation Risk Multiplier” Are Fair Game When Assessing Reasonable Royalty Damages

A recent decision from Judge Stark, now presiding at the Federal Circuit, endorses the use, by a patent owner’s damages expert, of sales projections and a “litigation risk multiplier” in determining reasonably royalty damages. …more

Damages, Daubert Ruling, Patent Infringement, Patent Royalties, Royalties

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Bruce Sokler

Another Shoe Drops in the Qualcomm Patent Licensing Saga

Just when observers thought Qualcomm could celebrate its successful litigation with Apple another decision has come down which could have major implications for Qualcomm’s business going forward. In much-anticipated 233-page…more

Antitrust Litigation, FRAND, Intellectual Property Protection, IP License, Monopolization

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Tinny Song

Ninth Circuit Reverses FTC Win in FTC v. Qualcomm, Finding No Antitrust Violations from Qualcomm’s Licensing of its Standard-Essential Patents

In a reversal that came as no surprise to many observers, on Tuesday, August 11, 2020, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit reversed the decision by the U.S. District Court for the Northern…more

Anticompetitive Behavior, Antitrust Violations, Appeals, Cell Phones, Competition

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Christina Sperry

Avoiding the Provisional Application Filing Pitfall of Narrowed Claim Interpretation

Provisional patent applications are popular in the U.S. for the various advantages they may provide applicants, including lower filing costs, less restrictive United States Patent and Trademark Office (USPTO) filing…more

Claim Construction, Continuation Applications, Intellectual Property Protection, Inventions, Patent Applications

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Katharina Stengel, PhD

USPTO Takes a Hint from European Practice in Addressing Late Continuation Concerns

As expected, the United States Patent and Trademark Office (USPTO) is raising its fees this year, effective January 19, 2025. However, the USPTO is doing something a little unusual this time—they’re raising the cost of filing…more

Continuation Applications, European Patent Office, Fees, Filing Fees, Patents

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Pedro Suarez

Failing to Adequately Support a Means-Plus-Function Claim Term Renders a Claim Invalid

Claim language is important. Particularly when dealing with software systems, claims may be held invalid as being indefinite when the claim language is characterized as “means-plus-function” under pre-AIA 35 U.S.C. §112 ¶ 6 (now…more

Claim Limitations, Indefiniteness, Means-Plus-Function, Patent Invalidity, Patent Litigation

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Serge Subach

The Prevailing Winds of Public Interest: Tailoring Injunctive Relief in Patent Litigation Through Carve Outs

Grants of permanent injunctions in U.S. district court patent litigation remain uncommon since the landmark decision in eBay v. MercExchange. LexMachina’s 2021 Patent Litigation Report highlights that courts grant fewer than…more

Carbon Emissions, Carve Out Provisions, Climate Change, Inflation Reduction Act (IRA), Offshore Wind

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Neil Supnekar

Understanding How to Patent Agentic AI Systems

Artificial intelligence is evolving beyond simple pattern recognition and content generation into autonomous decision-making. Agentic AI systems act independently—or with limited human supervision—to achieve specific objectives…more

Algorithms, Artificial Intelligence, Innovation, Intellectual Property Protection, Machine Learning

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Robert Sweeney

Joint Development Agreements and Trade Secrets - Sweat the Small Stuff

Joint development, or “teaming agreements” regularly anticipate one party disclosing trade secret subject matter to its counterparty to facilitate the joint development effort. While most JDAs involve companies with distinct…more

Breach of Contract, Confidential Information, Contract Disputes, Damages, Intellectual Property Litigation

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Tianyi Tan

Plaintiff Can Assert Patent Infringement and Seek Injunctive Relief in Second-Phase BPCIA Litigation Per Illinois District Court Decision

On January 26, 2022, in what appears to be a case of first impression, U.S. District Court Judge John Z. Lee of the United States District Court for the Northern District of Illinois denied a biosimilar applicant defendant’s…more

BPCIA, Injunctive Relief, Patent Infringement, Patent Litigation, Patents

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James Thomson

In With the New? Not So Fast: The UPC’s First SEP Ruling Aligns With German Precedent

To date, the Unified Patent Court (UPC) has not held a trial involving standard-essential patents (SEPs). However, the new forum’s Mannheim Local Division has now authored its first SEP-specific order in a case between Panasonic…more

European Court of Justice (ECJ), FRAND, Germany, Huawei, Injunctive Relief

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Alexander Trimble, PhD

A Later-Filed, Later-Expiring Unrelated Patent is Not a Proper Reference Patent for an Obviousness-Type Double Patenting Rejection

The recent Patent Trial and Appeal Board (PTAB) decision Ex Parte Baurin reversed an Examiner rejection for obviousness-type double patenting (ODP) in U.S. Application No. 17/135,529 over the later-filed, later-expiring…more

Ex Parte, Obviousness-Type Double Patenting (ODP), Patent Applications, Patent Trial and Appeal Board, Patents

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Michael Van Loy, PhD

Regulation, Enforcement, and Associated Challenges: Part II

Given the continued challenges in policing the burgeoning ENDS marketplace, as previously discussed in Part I of this article, in mid-2024 FDA and DOJ announced the establishment of a federal multi-agency task force to combat…more

Civil Monetary Penalty, Customs and Border Protection, Department of Justice (DOJ), E-Cigarettes, Enforcement Actions

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Paul Weinand

Has There Been A Sea Change in Eligible Domestic Industries at the ITC That Will Last?

For decades, the ITC’s jurisdictional requirement – known as the domestic industry requirement – effectively shut out innovators from availing themselves of the powerful remedies of the forum, in the form of an exclusion order…more

Administrative Law Judge (ALJ), Appeals, Appellate Courts, Design Patent, En Banc Review

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Daniel Weinger

Another Implementer Hold Out Door Closes: The Death of the Anti-Suit Injunction?

Implementers of standard essential patents (SEPs) continue to hold out in patent licensing discussions with SEP owners, including pursuing the cynical strategy of seeking anti-suit injunctions (ASIs). This failed strategy is…more

Brazil, ETSI, FRAND, Injunctions, Licensing Rules

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Susan Neuberger Weller

When Can a Trademark Owner Take Action for Unauthorized Use of its Trademark Online?

Unauthorized use of a trademark on the Internet occurs often and in many forms, usually involving the profiting, whether intentionally or unintentionally, from the goodwill associated with a trademark belonging to someone else…more

Consumer Protection Act, Cybersquatting, First Amendment, Intellectual Property Protection, Trademark Infringement

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Jonathon Western

Contemplating the Impact of the USPTO’s AI-Focused Patent Eligibility Guidance on Networking Applications

For years, artificial intelligence (AI) has been deployed in the networking industry to make evaluations and predictions about computer networks for the purpose of improving overall efficiency, performance, and security. Unlike…more

Artificial Intelligence, ASIC, Patent-Eligible Subject Matter, Patents, USPTO

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James Whittle, PhD

Federal Circuit Puts the Onus on Patent Owners to Disclaim Patent Term or Face Double-Patenting

On August 28, 2023, the U.S. Court of Appeals for the Federal Circuit, in In re Cellect, Appeal No. 2022-1293, evaluated for the first time how statutorily authorized patent term adjustments interact with the judge-made doctrine…more

Appeals, Double Patent, Obviousness-Type Double Patenting (ODP), Patent Invalidity, Patent Ownership

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Thomas Wintner

Do Patent Claims to Methods of Treatment Cover In Vivo Transformations?

Where an alleged infringer administers a substance A to a subject, and the substance is subsequently transformed to a therapeutic agent X inside the subject’s body, does the administration of the substance A constitute an act of…more

Claim Construction, Patent Infringement, Patent Litigation, Patents, Pharmaceutical Industry

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James Wodarski

Apple Backs Down: Commits to Take Global FRAND License to Avoid Exile from UK Market

For years, Apple has resisted taking a license to Optis’ standard-essential patent portfolio covering Long-Term Evolution (LTE) technology. However, it is now being reported that Apple committed to enter a global FRAND license…more

Apple, FRAND, Licenses, UK

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Karen Won

YouTube Enables Ads on Coronavirus Content; Brands Should Evaluate Strategies to Mitigate Inadvertent Backlash

Adding another layer of complexity to sensitively marketing in the COVID-19 environment, YouTube announced on March 11 that it will permit certain creators to monetize (i.e., enable ads on) content relating to coronavirus…more

Advertising, Brand, Coronavirus/COVID-19, Marketing, Online Advertisements

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Catherine Cheng Xu

No Fishing Allowed: Discovery of Litigation Funding Requires Articulation of Relevance Beyond Speculation

A recent Memorandum Order from the District of Delaware edified the protections courts tend to give discovery concerning litigation funding. Because Defendant AT&T failed to carry its burden of demonstrating the specific…more

AT&T, Disclosure Requirements, Discovery, Discovery Disputes, Litigation Fees & Costs

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Lei Xu, PhD

Can Enablement and Written Description Bars be Lower for Method-Of-Treatment Patent Claims?

Patent offices may reject a patent application with claims reciting using a composition to treat a disease, based on the requirement that the claimed treatment is not fully supported by the application. In the U.S., such support…more

Abbreviated New Drug Application (ANDA), Amgen v Sanofi, CAFC, Enablement Inquiries, Jurisdiction

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Simone Yhap

Three Is (Not) A Magic Number: Damages Under the Discovery Rule

On May 9, 2024, the Supreme Court held that under the Copyright Act, there is no time limit on monetary recovery for a timely filed claim. In Warner Chappell Music, Inc. v. Nealy, 601 U.S. _____ (2024), the Supreme Court…more

Copyright Litigation, Damages, Discovery Rule, Music Industry, SCOTUS

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Jessica Zhang

The Impact of Venture Capital Funding on Entity Status

The United States Patent and Trademark Office (“USPTO”) offers reductions in official fees to patent applicants that qualify for “small entity” status, which can be advantageous for many companies. However, various factors can…more

Contract Terms, Entity Status, Governance Standards, Patent Applications, Patent Fees

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Lily Zhang

Benefits of Using Copyrights to Protect Artificial Intelligence and Machine Learning Inventions

We previously discussed which portions of an artificial intelligence/machine-learning (“AI/ML”) platform could be patented or protected under trade secret, such as related to biotech and synthetic biology. Equally important to…more

Artificial Intelligence, Copyright, Copyright Infringement, Inventions, Machine Learning

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Qi Zhang

Overcoming Patent Challenges for AI/ML-Assisted Life Sciences (TechBio) Inventions: Strategies for Navigating Section 101 at the US Patent & Trademark Office

The integration of artificial intelligence (AI) and machine learning (ML) into the life sciences field has created exciting new opportunities for advancements in diagnostics, therapeutics, and personalized medicine. However,…more

Abstract Ideas, Artificial Intelligence, Assignment of Inventions, CLS Bank v Alice Corp, Life Sciences

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