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  • Federal Circuit Rejects Legitimacy of PTAB Judge Appointments: What's Next?

    By Procopio Partner Robert H. Sloss On October 31, which happens to be Halloween, the Federal Circuit issued a potentially frightening decision essentially holding that judges of the Patent Trial and Appeal Board (“PTAB”) had not been properly engaged pursuant to the Appointments Clause of the United States Constitution and vacating the decision in the case before it, Arthrex, Inc. v. Smith & Nephew, Inc., Case No. 2018-2140 (Oct. 31, 2019). Although the decision could have potent...

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  • Recent Court Decisions Drive Strategic Approaches to Pursuing Sound Patent Protection

    By Procopio Partners Robert H. Sloss and Miku H. Mehta The art of drafting patent applications and the task of litigating patents continue to evolve, driven by changes in review processes at the U.S. Patent and Trademark Office (USPTO) and rulings in the Federal Circuit. In particular, we have seen a dramatic change in both the risks and benefits associated with functional claim drafting. Of note to anyone dealing with patents are two recent Federal Circuit decisions that continue the tre...

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  • Where do Patent Owners Fit in the Current Federal Circuit-USPTO Patentability Divergence?

    By Procopio Partners Miku H. Mehta and Robert H. Sloss Intending to bring more clarity and consistency to the patent examination process, the U.S. Patent and Trademark Office (USPTO) has been issuing new examiner guidelines over the last year focused on 35 USC 101. These include the so-called Berkheimer memo of April 19, 2018 (relating to step 2B analysis) and new subject matter eligibility guidelines announced on January 4, 2019 (relating to step 2A analysis). A Procopio colleague recent...

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  • U.S. Supreme Court Holds Some Foreign Sales May be Included in Patent Infringement Damages

    By Procopio Partner Robert H. Sloss The U.S. Supreme Court has weighed in on yet another patent law matter that, in contrast to other decisions in recent years, actually favors many U.S. patent owners and technology companies. As companies look to market their products across international borders, they have found it necessary to navigate the maze of national and regional laws regarding the protection of intellectual property in order to guard against the theft of their key technologies. ...

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