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| start [2024/03/07 20:01] – len | start [2024/04/23 10:09] (current) – [Patents invalidated by Obviousness-Type Double Patenting (posted 01/23/24)] len |
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| ====== Patent News ====== | ====== Patent News ====== |
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| ===== J. Albright's claim construction: reversed again (posted 03/07/24) ===== | ===== J. Albright reversed on basic claim construction principles (posted 03/07/24) ===== |
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| | Judge Albright of the western district of Texas has an overal decision reversal rate of 25%, which is much higher than the national average of 16%. In the area of claim construction, his claim construction orders are vacated or reversed more often than confirmed, with a vacate/reverse rate of 39.5% verses a 38.8% affirm ratio rate, with the remaining cases being settled or voluntarily dismissed.((DocketNavigator)) |
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| Judge Albright of the western district of Texas has an overal decision reversal rate of 25%, which is much higher than the national average of 16%. In the area of claim construction, his claim construction orders are vacated or reversed more often than confirmed, with a vacate/reverse rate of 39.5% verses a 38.8% affirmatio rate, with the remaining cases being settled or voluntarily dismissed.((DocketNavigator)) | |
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| <div box right round 480px> | <div box right round 480px> |
| <div indent> | <div indent> |
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| [a] a positive electrode . . . [b] wherein . . . the lithium-containing transition metal oxide having the smallest average particle size is a lithium-containing transition metal oxide represented by the formula (1): LixM1yM2zM3vO2 | [a] a positive electrode . . . [b] wherein . . . the lithium-containing transition metal oxide having the smallest average particle size is a lithium-containing transition metal oxide represented by the formula (1): Li<sub>x</sub>M<sup>1</sup><sub>y</sub>M<sup>2</sup><sub>z</sub>M<sup>3</sup><sub>v</sub>O<sub>2</sub> |
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| [c] **//wherein M1 represents at least one transition metal element selected from Co, Ni | [c] **//wherein M<sup>1</sup> represents at least one transition metal element selected from Co, Ni |
| and Mn,//** . . . ; | and Mn,//** . . . ; |
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| </div></div> | </div></div> |
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| So here we go again with **//{{ :legal:construction:maxell_23-1194.pdf |Maxell, Ltd. v. Amperex Technology Ltd}}//**, the Fed. Cir.'s latest reversal of {{ :legal:construction:maxell_wdtx-6-21-cv-00347-156.pdf |a claim construction out of Albright's court}}. In this case, the Federal Circuit rejected Albright's reasoning that the claim were indefinite because they recite a contradiction. Specifically, the district court stated that "[t]he first part of the claim recites a Markush group where [cobalt] is not necessarily required to be in the claimed compound while the second part of the claim recites that [cobalt] is necessarily required. For an element to simultaneously be optional and required is a contradiction on its face." | In **//{{ :legal:construction:maxell_23-1194.pdf |Maxell, Ltd. v. Amperex Technology Ltd}}//**, the Fed. Cir.'s latest reversal of {{ :legal:construction:maxell_wdtx-6-21-cv-00347-156.pdf |a claim construction out of Albright's court}}, the Federal Circuit rejected Albright's reasoning that the claims were indefinite because they recite a contradiction. Specifically, the district court stated that "[t]he first part of the claim recites a Markush group where [cobalt] is not necessarily required to be in the claimed compound while the second part of the claim recites that [cobalt] is necessarily required. For an element to simultaneously be optional and required is a contradiction on its face." |
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| The Federal Court, however could find no contradiction in the claim. Stated the court: "**It is perfectly possible for a transition metal element to meet both requirements. The two limitations are therefore not contradictory.**" | The Federal Court, however could find no contradiction in the claim. Stated the court: "**It is perfectly possible for a transition metal element to meet both requirements. The two limitations are therefore not contradictory.**" |
| </div> | </div> |
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| | * [[jds>legalnews/inelegant-language-does-not-an-8606123/|Summary]] |
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| > It is undisputed off-line batch processing was conventional at the time of invention. The ’443 patent does not suggest the claimed invention uses off-line batch processing in an unconventional manner. The claimed invention uses conventional off-line batch processing to more efficiently implement the abstract idea of identifying advertisements based on search results. This is insufficient to transform claim 13 into patent-eligible subject matter. We have repeatedly held "claiming the improved speed or efficiency inherent with applying the abstract idea on a computer [does not] provide a sufficient inventive concept." | > It is undisputed off-line batch processing was conventional at the time of invention. The ’443 patent does not suggest the claimed invention uses off-line batch processing in an unconventional manner. The claimed invention uses conventional off-line batch processing to more efficiently implement the abstract idea of identifying advertisements based on search results. This is insufficient to transform claim 13 into patent-eligible subject matter. We have repeatedly held "claiming the improved speed or efficiency inherent with applying the abstract idea on a computer [does not] provide a sufficient inventive concept." |
| | </div> |
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| | * [[lex>library/detail.aspx?g=7fd636d5-c138-48fb-a131-9caeec77cb17|Summary]] |
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| The Federal Circuit rejected Cellect’s attempt to argue that ODP should not apply to patent term adjustments under 35 U.S.C. § 154(b)(2)(B) for the same reason that they don't apply to patent term extensions under 35 U.S.C. § 156. ((35 U.S.C. § 156 allows an applicant/patentee to extend a patent that covers a product whose market introduction is deleted due to the FDA approval process.)) The Court also addressed Cellect's other arguments and rejected each in turn, finding that the patents are invalid under obviousness-type double patenting and therefore unenforceable. | The Federal Circuit rejected Cellect’s attempt to argue that ODP should not apply to patent term adjustments under 35 U.S.C. § 154(b)(2)(B) for the same reason that they don't apply to patent term extensions under 35 U.S.C. § 156. ((35 U.S.C. § 156 allows an applicant/patentee to extend a patent that covers a product whose market introduction is deleted due to the FDA approval process.)) The Court also addressed Cellect's other arguments and rejected each in turn, finding that the patents are invalid under obviousness-type double patenting and therefore unenforceable. |
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| :!: **UPDATE:** ON November 13, 2023, Cellect filed a petition for //en banc// rehearing, which has attracted several amici briefs, which raise some interesting points. | On November 13, 2023, Cellect filed a petition for //en banc// rehearing, which has attracted several amici briefs, which raise some interesting points. On January 19, 2024, the request for rehearing was {{ :legal:double_patenting:cellect_en_banc_denial.pdf |denied}}. |
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| * [[po>patent/2023/11/adjustment-rehearing-patenting.html|Summary, analysis, and comments]] | * [[po>patent/2023/11/adjustment-rehearing-patenting.html|Summary, analysis, and comments]] |
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| * [[lex>library/detail.aspx?g=5e0577b2-c37d-4b6b-9e72-133bcfda0c12|Summary and analysis]] 8-) | * [[lex>library/detail.aspx?g=5e0577b2-c37d-4b6b-9e72-133bcfda0c12|Summary and analysis]] 8-) |
| * [[akin>https://www.akingump.com/en/insights/blogs/ip-newsflash/in-wake-of-in-re-cellect-district-court-interprets-safe-harbor-statute-and-finds-patent-not-invalid-for-obviousness-type-double-patenting|Discussion of Allergan]]. | |
| * [[fr>insights/thought-leadership/blogs/district-of-delaware-finds-allergan-patents-invalid-for-lack-of-written-description-and-obviousness-type-double-patenting-in-allergan-v-msn-labs/|Discussion of Allergan vis a vis Cellect]] | * [[fr>insights/thought-leadership/blogs/district-of-delaware-finds-allergan-patents-invalid-for-lack-of-written-description-and-obviousness-type-double-patenting-in-allergan-v-msn-labs/|Discussion of Allergan vis a vis Cellect]] |
| | * [[fcb>2023/06/19/argument-recap-in-re-cellect-llc-cellect-ii/|Summary of arguments]] 8-) |
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