Patent Valuation, Monetization and Investments

Blog

Markman Advisors Patent Blog

by Zachary Silbersher

Posts tagged Supreme Court
The Amgen v. Sanofi decision will encourage more biotech innovation—not the other way around.

I have blogged about the Amgen v. Sanofi case several times, and the case has been summarized in my prior posts andelsewhere.  The case pitted two competing PCSK9-inhibitors against one another, and after several years, resulted in cancelling broad patents covering the new class of antibodies.  Whenever there is any case that cancels patents within the pharmaceutical or biotech space, the common knee-jerk retort from some commentators is that the decision will suppress innovation, chill R&D and discourage any investment in life-saving medicine.  In this case, the opposite is true.

Read More
Let’s face it—the Supreme Court will never save us from Alice.

The Supreme Court has denied the recent bid to fix Alice and Section 101 jurisprudence.  In two cases that each petitioned for certiorari, Tropp v. Travel Sentry, Inc. and Interactive Wearables, LLC v. Polar Electric Oy, the Federal Circuit affirmed district court decisions holding the asserted patents directed to ineligible subject matter.  The Supreme Court’s denial is particularly acute since the Solicitor General recommended that cert be granted.  And it is more painful given that this denial follows another recent instance where the Solicitor General also recommended that the Supreme Court take up Alice.  Once again, the patent community mourns another lost chance to clear up the mess that has become Alice.  But let’s face it—will the Supreme Court ever save us from Alice? . . . The answer is, probably not.

Read More
The SG’s American Axle brief highlights that Alice has become too unpredictable to be useful.

There is the distinct possibility that Section 101 is finally returning to the Supreme Court. In American Axle & Manufacturing, Inc. v. Neapco Holdings LLC, No. 20-891, the Supreme Court invited the Solicitor General for the views of the United States on the pending petition for certiorari. In response, Solicitor General recommended granting the petition, at least with respect to one of the questions. The SG’s brief underscores the consensus that Alice has spawned more uncertainty than predictability.

Read More
The Federal Circuit cannot say who constitutes a real-party-in-interest in an IPR.

In a precedential decision that issued on May 19, ESIP Series 2, LLC v. Puzhen Life USA, LLC, the Federal Circuit confirmed that the Supreme Court’s recent Click-to-Call decision precludes judicial review of decisions by the PTAB concerning real-parties-in-interest.  recent Click-to-Call decision precludes judicial review of decisions by the PTAB concerning real-parties-in-interest.

Read More
Thryv v. Click-To-Call: Barring judicial review does not make IPRs more efficient.

The United States Supreme Court has issued its ruling in Thryv, Inc. v. Click-To-Call Technologies, LP. The case is either surprising or unsurprising given your palette for the changing nature of patent rights. But one thing is certain—the stripping of appellate review for institution decisions deprives litigants of valuable jurisprudence that would otherwise make the IPR process more predictable and more efficient.

Read More
The Federal Circuit sends a message about attorneys’ fees in Spineology v. Wright Medical

A recent precedential decision from the Federal Circuit sheds important light on how the Court views attorneys fees in patent cases.

Read More
Can Merck resurrect its $200M Sovaldi patent judgment against Gilead at the Supreme Court?

Merck ($MRK) lost a $200M patent judgment against Gilead ($GILD) after the Court found that Merck engaged in business and litigation misconduct.  Merck is now appealing to the Supreme Court, asking to resurrect that judgment.  Will it prevail?

Read More
What is the take-away from the Federal Circuit’s latest BPCIA decision?

Since the first BPCIA cases hit the courts a few years ago, the Federal Circuit and the Supreme Court have slowly been entangling the knots and confusions around the complicated regulatory scheme.  Innovator companies and biosimilars have wrangled over the “patent dance” and the 180-days notice of commercial marketing, including what’s required, what’s not, and who can leverage a regulatory tactical advantage.  A case between Amgen and Sandoz has helped resolve many of these issues, and this week, the Federal Circuit took another step towards gutting the statute.  What are the take-aways?

Read More