Sitting by Designation: The CAFC has continued to offer district court judges from across the country the opportunity to sit on the appellate bench for a day. On June 3, 2008, Judge Ward from the Eastern District of Texas filled out a panel with Judges Newman and Gajarsa. They will be deciding three patent cases: Hyatt v. Dudas (waiver of arguments before the BPAI); Atlanta Pharma v. Teva (appeal from denial of preliminary injunction to stop teva from selling a generic version of the ulcer med Protonix); and D Beam v. Roller Derby.
New USPTO Fees: They are going up, but you can put in your two cents by July 3. [New Fees][Contact Walter.Schlueter@uspto.gov. Include RIN number RIN 0651–AC21 in the subject line.]
FTC Commissioner Rosch recently spoke about patents and antitrust. He believes that the FTC Act, the Clayton Act and the Sherman Act all create “viable enforcement tools” against companies that create “patent walls” — especially when they acquire those patents from third parties. The FTC is currently going after N-Data in a case where the patent covers an ethernet standard. [N-Data][Zura’s Comments] Three important cases on this issue:
US v. Singer Mfg (Antitrust violation to charge competitors with patent infringement after U.S. company obtained patent from Swiss company)
Kobe v. Dempsey Pump (obtaining and using “every important patent” in the field in order to exclude competition, together with other anticompetitive activity, constitutes an antitrust violation)
Case of Xerox Corp (settlement consent decree where FTC challenged Xerox’s purchase of additional plain paper copier patents).
Pre-Purchase Review: There is some room to debate here on the question of organic-patenting (patents on inventions via the company’s own R&D) versus acquisitional-patenting (buying up patents invented by others). At the firm level, acquisitional growth is typically reviewed much more harshly for potential antitrust violations than is organic growth. Is the FTC/DOJ headed toward a system of pre-purchase review of major patent acquisitions in the same way that the agencies conduct pre-merger reviews?