“What To Expect In Patent Litigation This Year”January 3, 2020
Among other trends, the authors detail the trend impacting the Hatch-Waxman Act, the increasing number of generic defendants in multidefendant litigations; the prediction that plaintiffs will continue to go to Delaware for the experienced patent law judges; the continued recovery and aftermath of the Supreme Court’s Mayo Collaborative Services v. Prometheus Laboratories Inc. and Alice Corp. v. CLS Bank International decisions; and plaintiffs leveraging the decision in Western Geco LLC v. ION Geophysical Corp. to collect lost profits damages on sales outside the U.S.
Additionally, inter partes reviews (IPR) have become an integral part of patent infringement litigation and they are a powerful tool for accused patent infringers. The Federal Circuit’s ruling in Arthrex Inc. v. Smith & Nephew Inc. sparked controversy surrounding the appointment of administrative patent judges (APJs) and whether they are “principal officers” or “inferior officers.”
“The Arthrex decision currently controls, but the full Federal Circuit may hear the issue en banc to consider further the appropriate remedy in cases where patent owners have raised this constitutional challenge. In fact, all parties in the Arthrex case have petitioned for rehearing en banc. In 2020, we expect to see clarification about the ramifications of the Arthrex decision, although we don’t expect the decision will in any way reduce the popularity of IPRs,” the authors explain.
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