In December 2004, the Federal Circuit began a the week before holding oral arguments. This program is now in jeopardy.On March 10, the Federal Circuit heard oral arguments in Apotex v. The New York district court had dismissed Apotex’s declaratory judgment action due to a lack of case and controversy. At the district court level, this case fell in line with the recent CAFC decision holding that an ANDA filing does not, by itself, create a reasonable apprehension of suit. In dissent in Teva, Judge Mayer argued that the statute does provide that an ANDA filing constitutes an act of infringement sufficient to trigger a justiciable controversy. As it turns out, Judge Mayer was also a panel member for the Apotex v. Pfizer appeal, along with Judges Plager and Gajarsa.Keith Scala, who attended the Apotex v.
Pfizer oral hearing noted that, according to counsel’s arguments, Pfizer had executed a covenant not to sue Apotex a few days before the appellate arguments — but only after learning that Judge Mayer would be a member of the appellate panel. The covenant not to sue is seen to greatly strengthen Pfizer’s argument that Apotex lacked jurisdiction to bring the DJ action. However, executing the covenant may have been unnecessary had the appellate panel comprised a group more like that in Pfizer v. Teva.According to Scala, at one point, Judge Mayer leaned over, looked squarely at Pfizer’s counsel and said,“maybe posting paneling is a very, very bad thing.”Judge Mayer was, of course, referring to the the CAFC procedure of identifying the composition of panels several days in advance of the hearing.A decision will be expected in this case within the next few months.
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Pilot Program Definition
Expedited Cancellation Pilot Program (from application- process/trademark- trial- and- appeal- board/expedited- cancellation- pilot- program?utmcampaign=subscriptioncenter&utmcontent=&utmmedium=email&utmname=&utmsource=govdelivery&utmterm=#)As part of the United States Patent and Trademark Office's (USPTO) initiatives to ensure the accuracy and integrity of the Trademark Register, the Trademark Trial and Appeal Board (TTAB) is piloting a program to explore the effectiveness of an expedited cancellation proceeding for challenges to registrations of allegedly unused marks. If your cancellation proceeding is limited to abandonment or nonuse claims, consider participating. The program could save you time and money compared to a traditional proceeding.USPTO random audits suggested that over half of active registrations include some goods or services for which the registered mark is not actually being used. Registered trademarks that are not actually in use in commerce may block other trademark owners from registering their marks. Stakeholders have voiced interest in making challenges to such registrations faster and less burdensome than traditional full cancellation proceedings.The TTAB has discussed with stakeholder groups and the public the possibility of rules for a formal streamlined cancellation for abandonment and nonuse claims. In general, the model discussed would require:The plaintiff’s initial submission to include their evidence and briefThe defendant’s response to include their evidence and briefThe plaintiff to have had a reply opportunity.Following public comments that included some reservations about the potential effectiveness of streamlined cancellation proceedings, we launched the expedited cancellation pilot program.
The program will inform our decision on whether to proceed with a permanent special program for abandonment and nonuse cancellations.Part of a larger effortExpedited cancellation proceedings are only one component of the USPTO's efforts to ensure the accuracy and integrity of the Trademark Register. Two other initiatives are already in place: the random audits of post- registration maintenance filings and the increased readability of the use declarations. The USPTO continues to explore other options.How it worksUnder the pilot, the TTAB identifies newly- filed cancellation proceedings limited to abandonment or nonuse claims that may benefit by some form of the Board's existing Accelerated Case Resolution (ACR) procedures. The TTAB has an established practice of offering ACR in inter partes proceedings to simplify and speed up proceedings, allowing the parties to save time and expense. The standards of proof in an ACR proceeding remain the same as those in a traditional proceeding, and a final decision rendered under ACR may be appealed in the same manner and under the same time frames as non- ACR decisions.Selection for the pilotIn March 2018, the TTAB began identifying instituted cancellations involving only abandonment or nonuse grounds as potentially eligible for the program.
In such cases, once an answer is filed, the assigned TTAB Interlocutory Attorney informs the parties that the TTAB will participate in their mandatory discovery conference. The Interlocutory Attorney also advises the parties that they should familiarize themselves with ACR in advance of the conference (such as by reviewing TBMP §§ 528.05(a)(2) and 702.04) and should be prepared to discuss any specific ACR measures to which they might agree.The discovery conferenceBoth the Interlocutory Attorney and one of the Administrative Trademark Judges join in the conference. The judge who joins in the conference will not be on the panel of judges to decide the case on the merits. In addition to the usual subjects covered in a discovery conference, these conferences explore potential stipulations of fact, evidentiary stipulations, ways to limit discovery, and the possible use of the 'summary judgment ACR model' to abbreviate the proceeding by having the Board treat summary judgment motion filings and accompanying evidence as the final record and briefing, and decide disputed factual issues.The decisionThe TTAB makes every effort to issue final decisions in ACR cases within 50 days once they are ready for decision. By reducing the length and complexity of the case, ACR provides a more efficient and economical alternative to the traditional full cancellation proceeding.Please be assured that if your case is identified as a candidate for an expedited proceeding, no judgment has been made as to the likely outcome of your case.
Rather, the case was identified because it involved only claims of nonuse and/or abandonment and because use of ACR may save the parties time and expense, and lead to a quicker resolution of the case.How to participateYou may participate in the pilot even if your case was not initially identified by the TTAB, and even if you already conducted your discovery conference. Not Just Patents® LLC1- 651- 500- 7590Call 1- 651- 500- 7590 or email for U.S.
Licensed Attorney for Trademark Searches and Applications; File or Defend an Opposition or Cancellation; Responses to Office Actions; Send or Respond to Cease and Desist Letters.For more information from Not Just Patents, see our other pages and sites:?see alsog and©2008- 2019 All Rights Reserved. LLCCall: 1- 651- 500- 7590 or email:. This site is for informational purposes only and is provided without warranties, express or implied, regarding the information's accuracy, timeliness, or completeness and does not constitute legal advice. No attorney/client relationship exists without a written contract between Not Just Patents LLC and its client. Past performance is no guarantee of future results.
This week fourteen U.S. District Courts were selected to participate in a that is designed to enhance those courts’ expertise in complex patent litigation.The patent pilot program is a 10-year project in which judges who request patent cases will receive specialized patent law and case management training. IP Spotlight provides news and practice tips relating to the legal and business aspects of intellectual property and other intangible assets. Topics include licensing, due diligence, acquisition, compliance and risk management associated with patents, trademarks, copyrights and trade secrets. IP Spotlight is published by Jim Singer of Fox Rothschild LLP.
About the AuthorJim Singer is a partner with the law firm of Fox Rothschild LLP, where he focuses on intellectual property acquisition, protection, enforcement and licensing. For more details and contact information, select the 'About the Author' link below. Author Bio. Subscribe via RSS. The individuals who maintain this blog work at Fox Rothschild LLP.
The information, comments and links posted on this blog do not constitute legal advice. No attorney-client relationship has been or will be formed by any communication(s) to, from or with the blog and/or the blogger. For legal advice, contact an attorney at Fox Rothschild LLP or an attorney actively practicing in your jurisdiction. Do not send any confidential or privileged information to the blogger; neither Fox Rothschild nor the blogger will assume any liability or responsibility for it. If you send any information, documents or materials to the blog, you give permission for the blogger to include them on or in the blog.
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Over the last two years, filings of patent cases in federal courts have risen 12 percent to 6,401. While many districts show a double-digit increase in the number of patent filings in 2012-2013, the District of Delaware and the Eastern District of Texas saw the largest growth in patent cases, respectively, at 364 and 275 filings.Part of the increase can be traced back to a change in the law. A provision of the 2011 (pdf) stipulates that “accused infringers may not be joined in one action as defendants or counterclaim defendants, or have their actions consolidated for trial, based solely on allegations that they each have infringed the patent or patents in suit.” One case may easily become multiple cases under the new law.But even before AIA, patent cases filed in the District of Delaware were on the upswing.
“From 2009 -2010, filings went from 244 to 274, before nearly doubling to 506 in 2010-2011. In 2011-2012, patent filings totaled 1,103. Last calendar year, cases jumped to 1,377.
It’s been going on for years,” said Clerk of Court John Cerino. In calendar year 2012, patent cases comprised 55 percent of Delaware’s overall civil caseload. By calendar year 2013, they made up 63 percent of the district’s civil caseload. The cases are assigned randomly to the four Article III judges currently sitting in the district. “Every year since 2000, (with the exception of 2007), Delaware has had the highest patent caseload per judge in the nation,” Cerino said. “And these are incredibly intensive and complex cases.”.
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Overall, Delaware’s per judge weighted caseload is the second highest in the country and the Judicial Conference has recommended the creation of a fifth permanent judgeship to help the district. In 2013, Senator Christopher Coons (D-DE) and Senator Patrick Leahy (D-VT) introduced S. 1385, the 'Federal Judgeship Act of 2013,” which reflects all the Conference's judgeship recommendations, including a new judgeship for Delaware.In the Eastern District of Texas where 1,386 patent cases were filed in FY 13, Clerk of Court David Maland does not hesitate to attribute the rise in patent filings to AIA.
“We had lots of multi-defendant patent cases prior to AIA, so cases proliferated further after AIA,” said Maland. “Now we are averaging about seven or eight cases per patent.”The district also is one of the 14 district courts selected to participate in the national patent pilot project. Five of its six onboard Article III judges take part in the 10-year project, which is designed to enhance expertise in patent cases among district judges. The court also has a number of magistrate judges who are skilled in handling patent cases.The Eastern District of Texas has a weighted caseload per judgeship that is the third highest in the nation, just behind Delaware.
Although the court is authorized eight judgeships, it has been operating for some time with two vacancies. The Judicial Conference has recommended two additional permanent judgeships for Texas Eastern and the conversion of a temporary judgeship to permanent. Given the circumstances, Maland is concerned about the court’s future capacity to handle the workload: “With two existing judicial vacancies and two more expected in 2015 on an eight-judge court, it’s hard to see how we’ll be able to maintain our current, fairly efficient disposition rate with patent cases.”Related Topics.
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