By Kevin E. Noonan -- It has been one of Justice Gorsuch's signature judicial goals to overturn the Court's Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision and while it has taken seven years for a case to arise giving him the opportunity to persuade his colleagues to do so, the Loper case provided that opportunity (regardless of the amount of effort or lack of it required to accomplish the goal). The concurrence sets out the issue not as one between the co-equal branches of our government but as "between individuals and the government," providing a populist gloss... &n ..read more

By Kevin E. Noonan -- Recent history of Congress's performance as a legislative body has been, to be kind, mixed, and a great many bills, resolutions, and other activities have appeared to be more for show than to accomplish anything worthwhile. President Truman's characterization of the 80th Congress as the "Do Nothing" Congress might effectively be resurrected; after all, that Congress passed 906 bills while, in contrast, the current Congress (the 118th) has passed 253 bills. In some ways this is good, analogous to Hippocrates' exhortation to "First, do no harm" and this is particularly true ..read more

Federal Circuit Calls "No Bet" on Beteiro's Asserted Patents By Andrew Velzen -- Recently, the Court of Appeals for the Federal Circuit (CAFC) issued an opinion in Beteiro, LLC v. DraftKings Inc.[1] This case is yet another case where the Federal Circuit upheld invalidity under § 101. Here, the patents in question were directed to monitoring gaming / gambling activities at various physical locations, primarily with the idea that a user can be located in one location, but place wagers at a computer in a different location. In my view, the opinion illustrates what is, at best, a strained §... &n ..read more

By Michael Borella -- As required by President Biden's Executive Order 14110 ("Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence"), the U.S. Patent and Trademark Office has published an update to its subject matter eligibility guidance for examiners regarding inventions employing artificial intelligence (AI). As this is the first update to the USPTO's subject matter eligibility guidance in almost five years, there was some hope that it would address stakeholders' long-held concerns. These include the difficulty of crafting claims and a specification directed to an in ..read more

By Kevin E. Noonan -- Today, D.C. District Court Judge Christopher R. Cooper put an end to Judge Pauline Newman's lawsuit against her colleagues, granting the Federal Circuit Judicial Council's motion to dismiss Judge Newman's suit on due process and 4th Amendment grounds (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit"). To recap, Judge Newman filed a complaint in May 2023, asserting 12 claims: • Claim I asserted "improper removal [and] violation of separation of powers" based on Article III (life tenure of federal judges) and Article I (giving the House of ..read more

By Kevin E. Noonan -- In addition to Justice Gorsuch's concurrence (to be discussed in a later post), the three "liberal" Justices on the Court differed from their colleagues and thought overturning the Chevron precedent to be both erroneous and unnecessary. Their dissent, written by Justice Kagan and joined by Justices Sotomayor and Jackson, took a dim view of the majority's legal reasoning and the consequences of their decision. Instead of looking into the Court's distant past for support, the dissent begins by reminding the majority (and us) that "[f]or 40 years, Chevron U. S. A. Inc. v. Na ..read more

The Demise of Chevron Deference By Kevin E. Noonan -- Not surprisingly, the Supreme Court overturned the "Chevron deference" principle from its 1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. decision in Loper Bright Enterprises v. Raimondo (and it did so expressly and with no equivocation, stating "Chevron is overruled"). This case (decided below on Chevron principles) arose over a dispute involving regulation on fishing (and the amount thereof) in an area within 200 nautical miles beyond the U.S. territorial sea (12 nautical miles from shore). The regulations were enacte ..read more

By Michael Borella -- Any patent attorney who has been in the business for more than a few years understands from experience that some USPTO examiners are tougher than others. This should not be surprising, as each examiner is an individual who is applying their own experience and knowledge during the examination process, which inherently includes some degree of subjectivity. Nonetheless, we all have experienced examiners from time to time that appear to be exceptionally difficult. These examiners are more likely than most to reject claims on multiple grounds and be less responsive to applican ..read more

D Young & Co will be offering its next European biotech patent law update on June 25, 2024. The webinar will be offered at three times: 9:00 am, noon, and 5:00 pm (BST). D Young & Co European Patent Attorneys Simon O'Brien and Nathaniel Wand will discuss the latest European biotech patent case law developments, including the following: T 910/21: New purpose of treating the same disease T 209/22: Novelty-sufficiency squeeze based on clinical trial T 1255/21: Lack of inventive step in view of clinical trial protocol T 1252/20: The definition of "substance or composition" in medical use c ..read more

By Kevin E. Noonan -- In April, Ambassador Katherine Tai, U.S. Trade Representative (USTR), issued the 2024 Special 301 Report. In a press release, the USTR stated that "[m]any of the issues highlighted in the Special 301 Report demand collaborative efforts from our allies and partners" and additionally, "[m]any of my counterparts share the goal of making sure that trade supports the interests of our people, and one of the most dangerous types of IP violations involves counterfeit goods that pose health and safety risks." Unlike last year, this version of the press release did not mention the ..read more