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Markman Advisors Patent Blog

by Zachary Silbersher

Posts tagged Alice
Can Regenxbio overturn its patent loss against Sarepta Therapeutics?

Regenxbio previously sued Sarepta Therapeutics for infringement of U.S. Patent No. 10,526,617 (“the ‘617 patent”).  The patent is owned by the University of Pennsylvania and exclusively licensed to Regenxbio.  Yet, the district court presiding over the lawsuit recently invalidated the ‘617 patent, thereby effectively ending the suit.  Regenxbio has already started the appeal process.  What is the likelihood Regenxbio can revive its patent claims against Sarepta’s DMD therapies?

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Let’s face it—the Supreme Court will never save us from Alice.

The Supreme Court has denied the recent bid to fix Alice and Section 101 jurisprudence.  In two cases that each petitioned for certiorari, Tropp v. Travel Sentry, Inc. and Interactive Wearables, LLC v. Polar Electric Oy, the Federal Circuit affirmed district court decisions holding the asserted patents directed to ineligible subject matter.  The Supreme Court’s denial is particularly acute since the Solicitor General recommended that cert be granted.  And it is more painful given that this denial follows another recent instance where the Solicitor General also recommended that the Supreme Court take up Alice.  Once again, the patent community mourns another lost chance to clear up the mess that has become Alice.  But let’s face it—will the Supreme Court ever save us from Alice? . . . The answer is, probably not.

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The SG’s American Axle brief highlights that Alice has become too unpredictable to be useful.

There is the distinct possibility that Section 101 is finally returning to the Supreme Court. In American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, No. 20-891, the Supreme Court invited the Solicitor General for the views of the United States on the pending petition for certiorari. In response, Solicitor General recommended granting the petition, at least with respect to one of the questions. The SG’s brief underscores the consensus that Alice has spawned more uncertainty than predictability.

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Google’s policy statement on patent reform reiterates its desire that patents should be worthless.

On April 28, Google published a policy statement on the need for specific patent reforms. The statement was published by Google’s General Counsel, Halimah DeLaine Prado, and titled, Reforming the patent system to support American innovation. The statement is a notable read given that it issued from one of the largest Big Tech companies. The statement identifies four concrete areas where patent reform is purportedly required. Behind its prescriptions lingers its agenda—namely, that patents should have no value at all.

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iRobot vs. SharkNinja: What should investors expect from the patent battle?

A veritable patent storm has developed between two purveyors of robotic vacuum cleaners, iRobot ($IRBT) and SharkNinja.  In September 2019, SharkNinja launched the Shark IQ Robot, which iRobot claims is a knock-off of its highly-innovative Roomba® “i” and “s” Series products.  By October 15, 2019, the parties had each filed their own lawsuits, and iRobot has asked a Court to immediately enjoin the Shark® IQ Robot from the market in advance of the critical holiday shopping season.  What can we make of these cases?

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Does Alice require fact questions or not? The Federal Circuit appears split.

Earlier this year, the Federal Circuit issued two precedential decisions that were predicted to stem the tide of early dismissals based upon Alice motions.  The cases were  Berkheimer v. HP and Aatrix Software v. Green Shades Software, and there were both deemed precedential by the Federal Circuit.  A recent concurrence at the Federal Circuit, however, shows that the Court may be splitting over the rationale underpinning Berkheimer and Aatrix, and that split may be heading for the Supreme Court. 

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The Federal Circuit sends a message about attorneys’ fees in Spineology v. Wright Medical

A recent precedential decision from the Federal Circuit sheds important light on how the Court views attorneys fees in patent cases.

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Yes, Judge Plager’s admonishment that district courts stop applying Alice does matter.

 On July 20, in an otherwise unremarkable opinion, the Honorable S. Jay Plager issued a stinging dissent that should resound throughout the patent community—and may, in fact, resound throughout district courts.  See Interval Licensing LLC v. AOL, Inc., No. 2016-2502 (July 20, 2018).  Interestingly, Judge Plager did not dissent from the majority’s holding itself, but rather concurred in the reasoning of the majority.  Instead, and importantly, he dissented in the Federal Circuit’s “continued application of [Alice’s] incoherent body of doctrine.” Judge Plager’s dissent is nothing short of a recommendation that district courts stop applying the Alice doctrine, at least not until resolution of other defenses in the case. Does that matter?

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Startups want a strong patent system—they just don’t know it yet.

This week’s edition of The Economist addresses an interesting spin on the prospects of budding Silicon Valley startups living under the shadow of Big Tech.  The fantasy of getting bought is being supplanted by the reality of getting taken out.  The Economist argues that startups now live within a kill zone maintained by Big Tech—either sell out on our terms, or we’ll co-opt your technology and launch our own product.  While antitrust may be one solution to give more leverage to innovators, what about patents?

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Cloudflare's win over Blackbird jeopardized by two recent CAFC cases.

Cloudflare recently prevailed on its motion to invalidate patents as ineligible in a case commenced by Blackbird Tech.  But Cloudflare’s win may be in jeopardy.  Two recent decisions from the Federal Circuit have held that winning on early Alice motions, like the one on which Cloudflare prevailed, will now be more difficult. 

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Two recent Federal Circuit decisions could undermine early Alice motions.

Anyone who has followed Federal Circuit cases addressing Alice decisions has felt the whip-saw brain squeeze of trying to reconcile them all.  While some clear guidelines have emerged that have made assessing whether a given patent is susceptible to Alice, there remains a thick, gray cloud over how, exactly, the two-step framework applies in practice.  Two recent decisions from the Federal Circuit, Berkheimer v. HP and Aatrix Software v. Green Shades Software, may have established some more concrete guidance on handling early Alice motions in patent cases.

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