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No Do-Overs: Federal Circuit Denies Unsuccessful IPR Petitioner’s Request for a New Hearing in Light of Arthrex

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Ciena Corp. v. Oyster Optics, LLC, Appeal No. 2019-2117 (Fed. Cir. Jan. 28, 2020)

The Federal Circuit has held that a party that petitioned for inter partes review before the Patent Trial Appeal Board and subsequently obtained an unfavorable ruling cannot now invoke Arthrex, Inc. v. Smith & Nephew, Inc. to vacate and remand the Board’s decision for a new hearing before a differently constituted panel.

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Federal Circuit Holds That Names and Logos Matter in the Design-Infringement Analysis

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Columbia Sportswear N. Am., Inc. v. Seirus Innovative Accessories, Inc., Appeal No. 2018-1329 (Fed. Cir. Nov. 13, 2019)

Columbia Sportswear is the owner of U.S. Patent D657,093 (“the ‘093 patent”), a design patent directed at the “ornamental design of a heat reflective material.” The claimed design is a wave pattern used in sleeping bags, boots, pants, gloves, and jackets. Columbia sued Seirus Innovative Accessories in the District of Oregon for infringement of the’093 patent and a utility patent. Seirus makes outdoor apparel products lined with its HeatWave fabric, and its design features waves of varying pattern and orientation, interrupted by repeated use of the “Seirus” logo. Continue reading…

It’s All Relative: Federal Circuit Upholds Invalidity of 23andMe’s Genetic Ancestry Testing Patent For Claiming a Rule of Nature

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23andMe, Inc. v. Ancestry.com DNA, LLC et al., Appeal No. 2019-1222 (Fed. Cir. Jan. 9, 2020)

The Federal Circuit has denied a petition for rehearing en banc brought by 23andMe, leaving in place the court’s earlier ruling on October 4, 2019, that the company’s patent, which describes a method for identifying the degree of relationship between two individuals based on their DNA samples, was invalid for claiming a rule of nature.

23andMe’s patent, U.S. Patent No. 8,463,554 (“Finding relatives in a database”), covers a method of comparing two individuals’ recombinable DNA sequence information—rather than the whole genome—in order to determine a relative relationship. According to 23andMe, the ‘554 patent explains that only relatives will share long stretches of genome regions where their recombinable DNA is completely or nearly identical. 23andMe sued Ancestry in the U.S. District Court for the Northern District of California, alleging that it was infringing the ‘554 patent with its AncestryDNA kits, which feature services to identify relatives who share parts of their DNA.

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Watch Your Language: Federal Circuit Rules that Words—Not Just Drawings—Determine the Scope of a Design Patent

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Curver Luxembourg, SARL v. Home Expressions Inc., Appeal No. 2018-2214 (Fed. Cir. Sept. 12, 2019)

Curver Luxembourg, SARL is the owner of U.S. Design Patent No. D677,946, titled “Pattern for a Chair.” The design patent, which features an overlapping “Y” design, claims an “ornamental design for a pattern for a chair.” The title of the design patent, as originally applied for, was “Furniture Part.” However, the application was initially denied for failure to adequately designate the article to which the patent would apply. The Patent Office granted the design patent only after Curver altered the language from “Furniture Part” to “Pattern for a Chair” to satisfy the single article requirement. The design patent does not contain any images or drawings of the design as applied to a chair. Rather, the design patent’s figures illustrate the design pattern disembodied from any article of manufacture.
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Recent Federal Circuit Decisions Address the “Tangential Relation” Exception to Prosecution History Estoppel

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Ajinomoto Co., Inc. v. Int’l Trade Comm’n, Appeal No. 2018-1590 (Fed. Cir. Aug. 6, 2019)

Eli Lilly & Co. v. Hospira, Inc., Appeal No. 2018-2128 (Fed. Cir. Aug. 9, 2019)

Prosecution history estoppel typically forecloses a patent owner’s ability to claim infringement on equivalents in the territory between the original claim language and the finalized claim language.[1] In two recent cases, however, the Federal Circuit showed its willingness to apply the tangential relation exception to prosecution history estoppel and find infringement under the doctrine of equivalents.

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