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Attempts to Appeal Institution Decision Is SIPCOed

Reinforcing the impact of the Supreme Court of the United States' 2019 decision in Thryv v. Click-to-Call, the US Court of Appeals for the Federal Circuit reiterated that the Patent Trial and Appeal Board's threshold determination as to whether it will institute a proceeding under the America Invents Act (AIA), in this instance a Covered Business Method (CBM) review, is not appealable because it is closely tied to the institution decision. cxLoyalty, Inc. v. Maritz Holdings Inc., Case Nos. 20-1307, -1309 (Fed. Cir. Feb. 8, 2021) (Prost, C.J.) cxLoyalty petitioned for CBM review of a patent owned by Maritz. The patent relates to a system and method for permitting a loyalty program customer to redeem loyalty points for rewards offered by vendors without human intervention. A participant (i.e., a customer) uses a graphical user interface (GUI) to communicate with a web-based vendor system (e.g., an airline reservation system). An application programming...

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Printed Matter Is Patentable If It’s Functional, Not Just Communicative

In a tour de force of issues related to the printed matter doctrine, the US Court of Appeals for the Federal Circuit reversed various rulings that the patents-in-suit were not infringed, not willfully infringed and invalid as directed to printed matter. Instead, the Court held that there was substantial evidence in the record to support a jury finding of infringement and willfulness, and that the asserted claims were not directed solely to printed matter and thus were patent eligible under 35 USC § 101 (thereby raising a genuine dispute of material fact that precludes summary judgment as to anticipation). C R Bard Inc. v. AngioDynamics, Inc., Case Nos. 19-1756, -1934 (Fed. Cir. Nov. 10, 2020) (Reyna, J.) This dispute began when Bard sued AngioDynamics for infringing three patents directed to identifying a vascular access port that is suitable for power injection, which is a medical procedure requiring injecting fluids into a patient at a high pressure and...

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Federal Circuit Sinks Another Attempt to Use PTO Guidance

The US Court of Appeals for the Federal Circuit found claims directed to methods of fishing to be patent ineligible, affirming a Patent Trial and Appeal Board (PTAB) decision that the claims were directed to the abstract idea of selecting a fishing hook based on observed water conditions. In re: Christopher John Rudy, Case No. 19-2301 (Fed. Cir. Apr. 24, 2020) (Prost, CJ). The patent family in suit underwent lengthy prosecution beginning with a 1989 application titled “Eyeless, Knotless, Colorable and/or Translucent/Transparent Fishing Hooks with Associatable Apparatus and Methods.” After years of amendments, PTAB appeals and a previous visit to the Federal Circuit, Rudy’s return to the Federal Circuit provided the Court with an opportunity to both deny him patent coverage and reject US Patent and Trademark Office (PTO) guidance regarding subject matter eligibility. The PTAB analyzed the illustrative claim of application under both the Alice/Mayo two-step...

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