Intellectual Property Report
District Court Ventures Into Non-Practicing Entity's Third-Party Litigation Funding
Eileen Hyde
On November 16, 2022, non-practicing entity, Nimitz Technologies LLC, filed a petition for a writ of mandamus to the U.S. Court of Appeals for the Federal Circuit from the District of Delaware. Nimitz asked the Federal Circuit to reverse an order in four patent-infringement cases filed by Nimitz, in which Chief Judge Connolly required Nimitz to disclose its third-party funding for each of the cases.
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A Potential Setback for Defendants in the Race to Final Judgment
Spencer Packard
On September 26, 2022, Jump Rope Systems, LLC (“JRS”) filed a petition for writ of certiorari to address the question of “[w]hether . . . a determination of unpatentability by the Patent Trial and Appeal Board in an inter partes review proceeding, affirmed by the Federal Circuit, has a collateral estoppel effect on patent validity in a patent infringement lawsuit in federal district court.” Courts have routinely applied the collateral estoppel doctrine in similar cases since the Federal Circuit’s 2018 decision in XY, LLC v. Trans Ova Genetics, L.C. (“XY, LLC”), which JRS seeks to have overruled. If the Supreme Court grants certiorari and JRS ultimately prevails, the race to final judgment between parallel district court and Patent Trials and Appeals Board (“PTAB”) proceedings could change significantly. Specifically, if JRS’s petition is successful, it could allow patentees to advance their infringement claims towards final judgment even after the Federal Circuit’s affirmance of a PTAB’s unpatentability determination all the way up until the U.S. Patent and Trademark Office (“PTO”) issues its certificate of cancellation.
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In re: Fedex: A Trend for Transfer Motions in Patent Cases?
On September 15, 2022, President Joe Biden signed an executive order (“EO”) detailing key factors for the Committee on Foreign Investment in the United States (“CFIUS” or the “Committee”) to consider when reviewing transactions for national security risks. The EO provides direction to CFIUS by elaborating on existing statutory factors and adding five sets of national security factors for CFIUS to consider during its review process. Moreover, the EO highlights for CFIUS specific industry sectors that have national security implications, including microelectronics, artificial intelligence, biotechnology and biomanufacturing, quantum computing, advanced clean energy (such as battery storage and hydrogen), climate adaptation technologies, critical materials (such as lithium and rare earth elements), and elements of the agricultural industrial base.
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*This article was previously published in New York Law Journal on November 23, 2022.
FTC's New "Unfair Methods of Competition" Policy Statement Declares Protection for Competitors, Not Just Competition
Christine Ryu-Naya, Sarah Zhang
On November 10, 2022, the FTC by a 3-1 party line vote issued a new “Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act” (“Policy Statement”), formally declaring that the FTC’s “unfair methods of competition” (“UMC”) authority under Section 5 extends beyond the bounds of the Sherman and Clayton Acts to encompass a vast array of allegedly “unfair” practices that “tend to negatively affect competitive conditions.” As described in more detail below, the Policy Statement effectively abandons a rule of reason of analysis, instead giving the FTC broad discretion to determine that conduct is “unfair” without proof of market power or evidence of anticompetitive effects, and without regard to procompetitive justifications or potential efficiencies. The breadth of the Policy Statement strongly suggests that the Commission will double down on aggressive UMC enforcement in areas well outside the traditional scope of the consumer welfare standard, including efforts to advance worker welfare, protect small businesses, and block acquisitions of nascent competitors, among others.
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J.P. Morgan Healthcare Conference Private Reception
Baker Botts and Salem Partners will be co-hosting a private reception to be held at Jasper's Corner Tap and Kitchen during the J.P. Morgan Healthcare Conference on January 9, 2023!
If you are interested in joining us for drinks, light bites, and to watch the 2023 College Football Playoff National Championship with a number of our clients and friends in the Life Science industry, please contact Madison Feathers.
November 2022 Intellectual Report Recap
In case you missed it, here is a recap video of our November 2022 Intellectual Property Report that looked at:
- March-in Rights – Implications from the Covid Pandemic
- Third Quarter 2022 Federal Circuit Update
- New Executive Order Details CFIUS National Security Factors
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