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MBHB snippets Alert - October 5, 2017

In Aqua Products Inc. v. Matal, a highly fractured en banc Federal Circuit determined that the PTAB, in ruling whether to allow claim amendments in an IPR proceeding, can no longer place the burden to establish the patentability of the amended claims on the patent owner. This should result in more claim amendments being allowed in such proceedings, and it also opens the possibility that more motions to amend will be filed. However, this decision is unlikely to be the panacea hoped for by patent owners.
In In re: Cray, Inc, No. 2017-129, the CAFC issued a writ of mandamus vacating Judge Gilstrap’s decision involving venue under 28 U.S.C. §1400(b) in Raytheon Co. v. Cray Inc., Case No. 15-cv-1554 (E.D. Texas). That earlier decision raised concerns over whether the Supreme Court’s venue holding in TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017), would be given full effect. Judge Gilstrap had applied a broad 4-factor test for finding whether a defendant such as Cray had a “regular and established place of business” in the Eastern District of Texas under §1400(b). Judge Gilstrap’s test had attracted significant attention, and posited the Eastern District of Texas against most other district courts in applying § 1400(b).
On May 22, 2017, in TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court reversed decades of expansive patent venue interpretation by the Federal Circuit. The ruling in TC Heartland immediately overturns long-standing “forum-shopping” practices and introduces a longer-term issue of defining “a regular and established place of business.”
With cannabis policy reform and legalization continuing to gain momentum nationwide and internationally, the “Green Rush” is well underway. For companies and entrepreneurs entering this industry, comprehensive intellectual property (“IP”) protection is vital for their developing cannabis brands and inventions.
On May 11, 2017, the Defend Trade Secrets Act (DTSA) – the law that created a Federal cause of action for trade secret misappropriation – celebrated its first birthday. From the first year of enforcement, it appears that the DTSA got the balance right with some provisions, may need to be tweaked with others, and has yet to render clear results in some.
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