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The America Invents Act established a specialty tribunal known as the Patent Trial and Appeal Board (PTAB) to review the patentability of claims via an inter partes review (IPR) process. IPRs have given patent infringement defendants and would-be defendants a means to challenge the viability of patent claims after the patent grant. U.S. Patent Office statistics (as of May 2017) show that the Board has found at least one claim of a challenged patent to be unpatentable in over 80% of IPRs which become instituted for trial and which reach a Final Written Decision. Given these odds, and the fact that institution of an IPR is not appealable, a patent owner’s best shot at preserving its patent rights intact is to defeat institution of the IPR trial in the first instance.
By Jonathan Moskin
NantKwest v Iancu
The Federal Circuit sitting en banc reversed its own prior ruling and held that “all expenses of the proceeding” does not include attorneys’ fees.
By Lawrence H. Aaronson and James L. Korenchan
Advances in UI Design Can Provide Key Competitive Differentiation and Advantage, Which Makes Protecting Them Critically Important from a Business Perspective
Advances in UI design can also provide key competitive differentiation and advantage, helping to distinguish otherwise commoditized products and services such as computers, Web services, wearables, and appliances. Given this advantage, protecting advances in UI design can also be critically important from a business perspective.
By Jeffrey S. Ginsberg and Abhishek Bapna
Federal Circuit Remands for Further Proceedings to Determine Whether RPX’s Petitions for IPR Were Time Barred For Failing to Identify Its Client As a ‘Real Party in Interest’
Federal Circuit Holds that Common Law Tribal Sovereign Immunity Cannot Shield a Patent in IPR Proceedings,br> Federal Circuit Holds that an Unsuccessful IPR Petitioner Must Show ‘Concrete Plans’ for Future Potentially-Infringing Activity in Order to Demonstrate Article III Standing to Appeal PTAB’s IPR Decision
By Elizabeth B. Hagan
The U.S. Supreme Court recently held that a patent owner may recover lost foreign profits for infringement under 35 U.S.C. §271(f)(2). The holding in WesternGeco LLC v. ION Geophysical rejects the Federal Circuit’s categorical exclusion of lost profits damages for foreign sales, and expands the potential for increased damages from domestic competitors operating in foreign markets.