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The America Invents Act (AIA) created several adjudicative proceedings within the Patent Trial and Appeal Board (PTAB) of the U.S. Patent & Trademark Office, including inter partes review, post-grant review, and covered business method review (IPR, PGR, and CBM, respectively). The AIA also provided explicit estoppel provisions with respect to District Court litigation for those proceedings.
The patent statute makes it clear that subject matter that would have been obvious to one of ordinary skill in the art as of the effective filing date of a patent application is not patentable. The considerations relevant to obviousness have been set for some time: (1) the scope and content of the prior art; (2) the level of ordinary skill in the art; (3) the differences between the claimed subject matter and the prior art; and (4) secondary considerations of non-obviousness. There has, however, been much litigation on how courts are to apply these considerations to determine whether an invention would have been obvious and therefore not patentable.
The recent interpretation of patent eligible subject matter under 35 U.S.C. § 101 by the Supreme Court in Alice v. CLS Bank in June 2014 has caused confusion in the patent world regarding the validity and practicality of software and business method patents. In Alice, the Supreme Court held that claims directed towards a computer-implemented means of mitigating settlement risk by using a third-party intermediary did not qualify as eligible subject matter.
In a recent verdict, a California federal jury found that Robin Thicke and Pharrell Williams’ smash hit “Blurred Lines” copied Marvin Gaye’s 1977 song “Got To Give It Up” and awarded Marvin Gaye’s children $7.39 million in damages for copyright infringement. In a follow-up to our earlier articles, we discuss some of the issues raised in the case and what impact, if any, the decision can have on musicians who try to emulate a particular genre or another artist’s sound.
In a 7-2 decision authored by Justice Alito, the Supreme Court held on March 24, 2015, that issue preclusion may apply to Trademark Trial and Appeal Board (TTAB) decisions (B&B Hardware, Inc. v. Hargis Industries, Inc.).
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