March 2024

Celanese v. ITC: The Overlooked 271(g) Wrinkle and Competing Policy Concerns

Patent

by Dennis Crouch

If you recall, Celanese v. ITC involves the sweetener known as AceK (acesulfame potassium), a compound discovered back in the 1960s.  Celanese began selling the product on the competitive market in 2011, and eventually decided to file for patent protection on its manufacturing process in 2015.  In my prior post on Celanese v. ITC, I focused on the key statutory interpretation question of whether, under the AIA's revised 35 U.S.C. § 102, a patentee's pre-filing sale of a product made by a secret process starts the one-year clock for patenting that process.

Although Celanese did not patent the product itself, one interesting fact that I failed to mention in the prior post is that Celanese is seeking an exclusion order at the ITC preventing importation of Ace-K. This adds an interesting wrinkle to the policy debate.

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No Contradiction ⇒ No Indefiniteness

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by Dennis Crouch

The Federal Circuit recently issued a decision in Maxell, Ltd. v. Amperex Technology Limited, No. 2023-1194 (Fed. Cir. Mar. 6, 2024), reversing Judge Alan Albright's finding that certain claims of Maxell's patent covering rechargeable lithium-ion battery indefinite under 35 U.S.C. § 112, ¶ 2 (112(b)). U.S. Patent No. 9,077,035.

The case provides important cover for patent prosecutors who inelegantly add narrowed limitations from the dependent claims into the independent claims without rewriting or deleting the corresponding broader element descriptions already there.

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Pfizer v. Sanofi: Applying the Results-Effective Variable Doctrine in Obviousness Analysis

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by Dennis Crouch

The Federal Circuit has affirmed the PTAB's finding that Pfizer's pneumococcal vaccine patent is obvious, but has vacated and remanded the Board's denial of Pfizer's motion to amend certain claims. Pfizer Inc. v. Sanofi Pasteur Inc., No. 19-1871 (Fed. Cir. Mar. 5, 2024); U.S. Patent No. 9,492,559. Pfizer v. Sanofi Opinion.

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AI and Society: Government, Policy, and the Law at Mizzou

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I am super excited to be part of a big interdisciplinary conference this week here at the University of Missouri where we'll be focusing on AI and Society: Government, Policy, and the Law. Co-hosted by the Truman School of Government and Public Affairs and the University of Missouri School of Law, this two-day event on March 7-8, 2024, will bring together a diverse group of experts to explore four main themes: AI in Government, Impact of AI on Democracy, Government Regulation and AI, and Creating an AI Ready Public Sector; and a collection of the papers will be published in the Missouri Law Review.

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Celanese v. ITC: Can a Secret Manufacturing Process Be Patented After Sale of the Resulting Product?

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by Dennis Crouch

The Federal Circuit held oral arguments on March 4, 2024 in the important patent case of Celanese Int'l. v ITC, 22-1827 (Fed. Cir. 2024).

The question: Under the AIA, does sale of a product by the patent applicant prohibit the patentee from later patenting the process used to make the product? 

Background

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The AGI Lawsuit: Elon Musk vs. OpenAI and the Quest for Artificial General Intelligence that Benefits Humanity

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By Dennis Crouch

Elon Musk was instrumental in the initial creation of OpenAI as a nonprofit with the vision of responsibly developing artificial intelligence (AI) to benefit humanity and to prevent monopolistic control over the technology. After ChatGPT went viral in late 2022, the company began focusing more on revenue and profits.  It added a major for-profit subsidiary and completed a $13+ billion deal with Microsoft -- entitling the industry giant to a large share of OpenAI's future profits and a seat on the Board. 

In a new lawsuit, Elon Musk alleges that OpenAI and its CEO Sam Altman have breached the organization's founding vision. [Musk vs OpenAI]. 

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Eligibility and Physical Products

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by Dennis Crouch

The six PTAB decisions reviewed below provide insight into the application of 35 USC 101 in cases involving more than just computer hardware and software. While the claims in each decision recite physical devices or molecules, the PTAB still found most to be ineligible as directed to an abstract idea and lacking an integrated inventive concept beyond well-understood, routine conventional activities. A core parallel across the decisions is the PTAB's focus on whether the additional elements in the claims, including the physical components, integrate the judicial exception into a practical application or provide significantly more.

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