Prepared by Cislo & Thomas LLP Attorney Mark D. Nielsen, Ph.D.
1. In a recent and very practical opinion from the Federal Circuit Court of Appeals, the Court clarified the applicable pleading requirements for patent infringement claims. The Court noted that pleading infringement on a claim element by claim element basis is not required. A plaintiff need not prove its case at the pleading stage, said the Court. The Court, however, noted that there must be sufficient allegations of fact, that when taken as true, the infringement claim plausible. Merely reciting claim elements and saying an accused product satisfies the claim elements is not sufficient. The Court added that the level of detail required will vary depending on the technology, the importance of particular claim elements to proving infringement, and the nature of the accused device. The takeaway here is that “bare bones” pleading of patent infringement claims will not work, but detailed claim charts are not required in a pleading either. The Court will require enough allegations of factual matter to articulate a viable, plausible patent infringement claim.
2. In response to requests from a bipartisan group of senators (Sens. Hirono, Coons, Tillis, and Cotton), the USPTO is asking for public comments on the current state of patent eligibility law and its impact on commerce. The comment period is open until September 7 and a report from the senators is due in March of 2022. We do not need to go into the challenges, uncertainties, controversies, etc. that attend the changes in patent subject matter eligibility law since ca. 2010 and the Bilski decision. Suffice it to say that there seems to be some appetite in the Senate to take a serious look at the issue to potentially fix issues that particularly impact industry and commerce. In the opinion of this writer, this is a good thing. Please consider sending in thoughtful comments reflecting yours and your clients’ thoughts on the matter.
3. In a case at the intersection of antitrust and trademark law, the Second Circuit Court of Appeals issued an opinion reversing the Federal Trade Commission’s decision that 1-800 Contacts’ entering into settlement agreements preventing its competitors from using certain trademarks as keywords for online advertisements was an antitrust violation. The Second Circuit focused on the pro-competitive aspect of trademarks, saw the agreements as protecting trademark rights, and noted that restricting trademark owners’ ability to enforce their rights is at odds with trademark law and policy. The takeaway here is that trademark owners may be able to be more aggressive in restrictive language in settlement agreements.
