In my first post on American Axle’s Petition for cert., I focused on the substantive arguments of the parties. Almost as interesting is Part 5 of the Petition, in which AA argues that this is a good case for the S. Ct. to grant the Petition. I will try to summarize the arguments. But the Section starts off by arguing that the invention in question is “not a run-of-the-mill Section 101 case” like attempts to patent business methods or diagnostic tests: “This case is different—[AA’s] claims ‘are directed to a process for manufacturing car parts—the type of process which has been eligible since the invention of the car itself.’”
You may have noticed that I haven’t been posting since November. I feel like IP law has hunkered down and I find spats over jurisdiction and even the appeal urging the S. Ct. to validate IPR judgeships to be less than inspiring topics for a pharma/biotech blog. But I have remained some hope that either the Supremes or Congress will do something to mend s. 101 that has led to Judge Moore’s conclusion that the Fed. Cir. is “bitterly divided” over the requirements for patent eligibility. Before you read any further, please go back and re-read the posts I did on the earlier panel decision and the opinions accompanying the 6/6 split that denied rehearing en banc. These posts are dated August 3, 10, 11 and 14, 2020.
In the recent decision, Vectura Ltd. v. GlaxoSmithKline LLC, Appeal. No. 2020-1054 (Fed. Cir., November 19, 2020), the panel dealt with an appeal by GlaxoSmithKline LLC (“GSK”) from a district court decision that found infringement of Vectura’s claims directed to “composite active particles” of the type used to deliver drugs via dry powder inhalers. Claim 1 of U.S. Pat. No. 8,303,991 reads:
Guest post from Tim Bianchi.
The Federal Circuit decided an appeal in an ex parte prosecution for Google last week, which may be of interest to patent prosecutors (In re Google Technology Holdings LLC, Appeal No. 2019-1828, November 13, 2020)).
Google was prosecuting one of its gazillion patent applications and received a final rejection. It appealed the final rejection to the PTAB, but Google didn’t like the Board’s decision, so it appealed that decision to the Fed. Cir. The Federal Circuit decided that Google forfeited its right to certain arguments because they weren’t raised in ex parte prosecution.