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Patent licenses, technology transfer agreements, and non-disclosure agreements often include forum selection clauses as a matter of course, and sometimes include an arbitration clause requiring private arbitration of disputes. Petitioners and patent owners both will want to know: Can these clauses preclude a challenge at the Patent Trial and Appeal Board (PTAB)? The federal district courts routinely enforce the parties’ selected forum in patent lawsuits. The PTAB, however, has been reluctant to do so for
inter partes and post-grant review proceedings. The Federal Circuit has not yet ruled on whether the PTAB must directly consider and enforce forum selection clauses. Patent owners seeking to avoid the PTAB may have recourse through the district courts, but results on this path are uncertain. Petitioners have frequently been successful in maintaining challenges at the PTAB, despite prior agreements that include forum se
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A weekly summary of the precedential patent-related opinions issued by the Court of Appeals for the Federal Circuit and the opinions designated precedential or informative by the Patent Trial and Appeal Board.
Free Stream Media Corp., et al. v. Alphonso Inc., et al., Nos. 2019-1506, -2133 (Fed. Cir. (N.D. Cal.) May 11, 2021). Opinion by Reyna, joined by Dyk and Hughes.
Free Stream Media (d/b/a Samba) accused Alphonso Inc. of infringing two patents generally related to systems that provide a mobile phone user with advertisements that are deemed relevant based on data gathered from the user’s television.
Earlier this month, in the precedential decision
New Vision Gaming & Development, Inc. v. SG Gaming, Inc., FKA Bally Gaming, Inc., the Court of Appeals for the Federal Circuit (“the CAFC”) vacated and remanded a decision by the Patent Trial and Appeal Board (“the Board”) on the ground that the decision issued after the CAFC’s
Arthrex, Inc. v. Smith & Nephew, Inc. decision (where the CAFC made administrative patent judges of the Board “inferior officers” under the U.S. Appointments Clause). New Vision is appealing two covered-business method review final written decisions in which the Board held all claims of the patents at issue patent ineligible under 35 U.S.C. § 101. The CAFC’s opinion, delivered by Judge Moore, is short and largely unremarkable. What is more interesting, however, is Judge Newman’s dissent.
Thursday, May 20, 2021
The US Court of Appeals for the Federal Circuit found that a party did not waive the Patent Trial & Appeal Board’s (Board) constitutionality argument by raising it for the first time in its opening brief because the Court’s decision in
New Vision Gaming v. SG Gaming, Inc., Case Nos. 20-1399, -1400 (Fed. Cir. May 13, 2021) (Moore, J.) (Newman, J.
concurring in part, dissenting in part)
New Vision appealed two covered-business method (CBM) review final written decisions in which the Board found that all claims of the patents, as well as its proposed substitute claims, were directed to patent ineligible subject matter under 35 U.S.C. § 101. In its opening brief before the Federal Circuit, New Vision requested the Court vacate and remand the Board’s decisions in light of