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OxyContin Maker Purdue Pharma Loses at the Federal Circuit

Groundhog day just passed, and although famed Pittsburg Punxautawney Phil did not see his shadow, it looks like it's going to be a cold winter for Purdue Pharma, maker of the blockbuster drug Oxycontin.

The pharma company lost big when the Federal District Circuit Court sided with Epic Pharma, et al, in this widely watched patent lawsuit. In the opinion of the court, the alleged changes that Purdue made to OxyContin were not significant and Purdue's attempts to couch a toxicity removal of a base form (oxycodone) of its drug actually was not substantial enough to be considered a break from prior art.

Under the Lanham Act, the U.S. Patent and Trademark Office can't register "scandalous, immoral, or disparaging marks." That provision has been used to strike down the trademark for the Washington Redskins and to deny trademark protection to the all-Asian "Chinatown dance rock" band (and nutrition bar sponsors) The Slants.

The court upheld the USPTO's denial of trademark protection to The Slants in April, but reversed course on Tuesday, ruling en banc that the Lanham Act's "disparaging marks" prohibition is unconstitutional viewpoint discrimination. The ruling could have major impacts not just for The Slants and the Redskins, but for trademark law as a whole.

Marvell Case Update: Federal Circuit Waits for SCOTUS to Rule

The Appeals Court for the Federal Circuit has decided to cool its jets with regards to multi-billion dollar case Mellon University v. Marvell Tech, waiting for SCOTUS to make its decision in Halo and several other big-ticket infringement cases.

A Pennsylvania District Court had awarded the University a cool $1.54 billion dollars based on a finding of willful infringement on the part of Marvell. However, the Federal Circuit panel reduced that award, pointing to a number of factors including a finding by the circuit that Marvell had a, objectively reasonable defense to Mellon's claims, and the potential removal of foreign sales based on where sales contracts were executed.

Electric Transmissions Are Not Within USITC's Jurisdiction, Court Rules

The U.S. Federal Circuit's decision in ClearCorrect v. ITC and AlignTech has the potential be one of year's most important copyright / intellectual property cases, significantly outlining the boundaries of what the agency can and cannot oversee.

In the case, the court overturned the U.S. International Trade Commission's determination that "articles" includes electronic data that infringes on a U.S. patent.

The Supreme Court granted cert to two appeals from the Federal Circuit on Monday. Both cases -- the only intellectual property cases the High Court has agreed to hear this year -- challenge the Federal Circuit's two-part test for awarding treble damages in patent infringement cases.

The petitioners' argument is fairly straight forward: the law is simple, granting discretion to the courts in awarding adequate damages; the Federal Circuit's test is far from simple, imposing rigid restrictions on damage awards. If Supreme Court history is our guide, the Federal Circuit won't fair very well.

There's nothing surprising about a bad faith patent infringement claim. Patent trolls are legion. Those unscrupulous individuals and companies extort payment against alleged infringers based on shoddy patents or questionable infringement. And while the practice has lead for calls for patent reform, little action has been taken on the federal level.

Vermont recently stepped into that void, suing a patent holder for violations of its state consumer protection act. Those patent holders sought to remove the suit to federal court, on the basis of federal preemption. The Federal Circuit does have jurisdiction to hear those appeals, the Federal Circuit ruled on Wednesday, just not in this case.

The long running patent battle between Apple and Samsung (now in year four) won't be ending anytime soon. Though a federal court had found that Samsung violated Apple's "slide to unlock" and auto-linking patents, it also refused to enjoin Samsung from selling those patent infringing products. According to the court, Apple simply couldn't show that Samsung's patent infringing features were harming its sales.

That was the wrong standard, the Federal Circuit ruled. Apple didn't have to show that a Galaxy phone's slide to unlock feature was directly connected to a loss of sales. A simple loss of sales due to Samsung is enough. Samsung will likely be forced to pull those phones from the market as a result of the ruling.

Contact manufactures can't patent a method for making contact lens material, the Federal Circuit ruled this week. That's because the process used is simply too obvious to be eligible for patent protection, the court found.

The court's ruling came 35 years Dome filed a patent for a method of making lenses which had increased oxygen permeability. When the patent was filed in 1980, contact lens makers were still struggling to move away from the unbreathable plexiglass lenses which were standard in the 70s. While a breakthrough, flexible, breathable polymer lenses were also so obvious at their time of invention that anyone could have made them.

If you've gotten a paternity test or fetal DNA test in the last twenty years, you have probably benefited from the discovery of cell-free fetal DNA, or cffDNA. This DNA is non-cellular bits of DNA floating freely in the blood stream of a pregnant woman, which can be extracted from maternal plasma and serum and tested for paternity and other genetic information.

After cffDNA was discovered, a method of detecting and interpreting it was commercialized by Sequenom and patented by Drs. Dennis Lo and James Wainscoat. Paternity and genetic tests based on cffDNA are significantly less invasive than other forms of testing. Unfortunately for Sequenom, however, those methods are also unpatentable, the Federal Circuit ruled last week.

Apple Verdict Against Samsung Mostly Upheld by Fed. Cir.

Back in 2012, a federal jury awarded Apple a staggering one billion dollars after finding that rival smartphone maker Samsung infringed Apple's design and utility patents, as well as Apple's trade dress.

Samsung appealed to the Federal Circuit, which yesterday handed Samsung a mixed bag. Everything but the trade dress claims could stand, the court said, setting the stage for an appeal to the U.S. Supreme Court.