Expert Analysis

• Opinion

  Solution To Patent Eligibility Quagmire Lies In Constitution

  

  A lack of clarity on patent eligibility has undermined the credibility of the patent system, and a possible resolution is for courts or Congress to define judicial exceptions to patent-eligible subject matter in their most concise form — in line with constitutional guarantees, says Indi Rajasingham at the Mmillenniumm Group.

• Examining EU's Drift Toward US-Style Employer Pact Scrutiny

  

  As European Union competition authorities express enforcement interest in employment issues such as no-poach and wage-fixing agreements — which have been the subject of U.S. enforcement action for some time — companies may need to recalibrate their training and compliance programs accordingly, say attorneys at Crowell & Moring.

• What SEP Holders Can Take Away From UK's Apple Ruling

  

  A U.K. court's recent decision in the standard essential patent dispute between Apple and Optis Cellular Technology provides encouragement for SEP owners litigating their portfolios in the U.K. and reaffirms the country's place as a patentee-friendly jurisdiction, says Tess Waldron at Powell Gilbert.

• AI Inventorship Decision Leaves Open Questions

  

  A Virginia federal court's recent decision in Thaler v. Iancu, finding that artificial intelligence cannot be named as a patent inventor, highlights questions that will have to be answered as AI increasingly contributes to inventorship, especially in the pharmaceutical industry, say attorneys at DLA Piper.

• What Patent Applications Signal About Green Energy Trends

  

  Steadily increasing patent activity related to clean energy technologies suggests that the proportion of energy derived from green sources will also continue to grow — but smaller companies could be locked out of the patent race, even as sustainability becomes an inescapable business imperative, says Greg Sharp at Haseltine Lake.

• Takeaways On Pre-Action Protocols From UK Patent Ruling

  

  The U.K. High Court's recent patent ruling in Add2 Research v. dSpace instructs parties in proper pre-action discussions that avoid breaches of protocol, including how to provide materials in confidence, say Angela Jack and Emily Atherton at EIP.

• 6 Ways To Guide Applications Under New Patent Classification

  

  Intellectual property practitioners can navigate the recently implemented Cooperative Patent Classification system to direct applications to specific prior art units within the U.S. Patent and Trademark Office, avoid especially difficult units, and improve clients' portfolios in newly emerging technologies, say Roberta Young and Brian Michaelis at Seyfarth.

• Mitigating User Content Risk After EU Copyright Directive

  

  As the deadline approaches for member states to implement the European Union’s new copyright directive, which will hold certain online content service providers liable for copyright infringement pertaining to user-uploaded content, companies should have risk-mitigation strategies in place, say attorneys at MoFo.

• The Pandemic's Bright Spots For Lawyers Who Are Parents

  

  The COVID-19 crisis has allowed lawyers to hone remote advocacy strategies and effectively represent clients with minimal travel — abilities that have benefited working parents and should be utilized long after the pandemic is over, says Chelsea Loughran at Wolf Greenfield.

• ITC Seems Unlikely To Stay Investigations For Parallel IPRs

  

  The U.S. International Trade Commission's recent order denying Ocado's attempt to stay a dispute with AutoStore pending resolution of its inter partes review petitions signals that an ITC complainant's patents are effectively shielded from IPR challenges, at least under current Patent Trial and Appeal Board practice, say attorneys at Reichman Jorgensen.

• A Framework For Evaluating Willingness Of FRAND Licensees

  

  As an increasing number of standard-essential patent cases turn on whether a manufacturer is willing to pay a fair, reasonable and nondiscriminatory royalty for SEPs, Jorge Contreras at the University of Utah identifies conduct that typically indicates willingness or unwillingness, as well as conduct that should be viewed as indeterminate.

• Opinion

  US Should Learn From German Courts Balancing SEP Rights

  

  The German high court's recent decision in Sisvel v. Haier set a productive tone in balancing the rights of patentees and implementers in standard-essential patent disputes, and its understanding of negotiation realities should be followed by the U.S., say Cravath's David Kappos, former U.S. Patent and Trademark Office director, and Daniel Etcovitch.

• Examining EPO's Strict Approach To AI Patent Disclosure

  

  Because a recent decision by the European Patent Office Boards of Appeal takes a potentially problematic strict approach to disclosure requirements for machine learning-related patent applications, U.S. applicants filing in the EU should disclose several specific data training sets, says Ronny Amirsehhi at Clifford Chance.

• ITC Dispute May Lead To PTAB Litigation Strategy Shifts

  

  A pending motion to stay the dispute between AutoStore and Ocado at the U.S. International Trade Commission highlights competing timelines of the ITC and Patent Trial and Appeal Board, and has the potential to reshape the typical forum selection strategies for patentees and defense tactics for challengers, say attorneys at Reichman Jorgensen.

• Opinion

  US Courts Should Adjudicate FRAND Rates On A Global Basis

  

  Following the U.K. Supreme Court's recent Unwired Planet v. Huawei decision, U.S. courts should analyze compliance with contracts on fair, reasonable and nondiscriminatory terms by assessing them on a worldwide basis, because global licenses are the only technically and financially sound way to license standard-essential patents, say attorneys at McKool Smith.