Recently on Axinn Viewpoints – November 7

SEP Negotiations: The Importance of Being Will(ing).?More and more, when negotiating licenses for standard essential patents (SEPs) on fair, reasonable, and non-disciminatory (FRAND) terms, there has been an increased emphasis on the idea of a “willing" licensor or licensee. Indeed, being unwilling...?Read more.?

When Disclosure Isn't Disclosure.? A patent challenger identified a witness as a person with relevant knowledge in Rule 26(a) disclosures and interrogatory responses, and the patentee deposed the witness. Surely the witness can testify at trial, right? The answer: not as to the...?Read more.?

PE Firms on FTC and DOJ's Naughty List? The FTC and DOJ have continued their efforts to take action against private equity firms for engaging in serial acquisitions (so-called "roll-ups").? The agencies claim that these deals increase prices and degrade quality for consumers, while...?Read more

Failing the Litmus Test? Weighing the Extrinsic Evidence in Construing "a pH of 13 or higher".? The Federal Circuit's claim construction gospel set forth in Phillips?has been entrenched in the minds of patent litigators for nearly 20 years.1 The intrinsic evidence - the claims, specification, and prosecution history - is usually...?Read more.?

Cost of Hatch-Waxman Litigation Decreases (via tax deduction).? As Benjamin Franklin famously remarked, “nothing is certain except death and taxes.” Recently, the U.S. Court of Appeals for the Third Circuit provided more certainty about the latter by holding?that legal expenses incurred by generic drug...?Read more.?

GCR's Women in Antitrust Conference. Global Competition Review's Women in Antitrust Conference is taking place on November 14 in Washington, DC, and we are pleased to be a part of it. The conference will highlight leading female practitioners, enforcers, economists, and in-house...?Read more.?

A Tale of Two Experts.? It was a tough day for opposing patent damages experts in Ecolab Inc. v. Dubois Chemicals, Inc., as Judge Andrews of the District of Delaware granted Daubert motions directed to both experts' reasonable royalty opinions. No. 21-567-RGA, 2023 WL...?Read more.?

Doctor Califf Goes to India.? Given its growing role as the “pharmacy to the world,” FDA Commissioner Robert Califf, M.D., recently took a trip to India and offered some of his (and FDA's) views upon his return. During his visit, Commissioner Califf met with representatives...?Read more.?

Appian Reimagines The High-Low to Preserve $500M-$2B in Trade Secret Damages.? As the calendar turns to November, a “high-low” (at least here in the basketball capital of the world) usually refers to a basketball play where one player at the high post passes the ball to a second player at the low post to create a scoring...?Read more.?

Senator Ted Cruz Takes A Trip Down FTC Memory Lane.? A little-known fact is that Senator Ted Cruz spent time at the FTC during a time when there were, as he reflects, certain bipartisan efforts. One of his most important projects during his time there was his association with the FTC's State Action...?Read more.?

An Interchangeable by Any Other Name.? In the continuing debate over the uptake of biosimilars, FDA recently put a stake in the ground by recommending in a new labeling guidance that all biosimilar products contain only a biosimilarity statement, even for products designated as...?Read more.?

Will the FDA-PTO Collaboration Pay Off? Since President Biden's July 2021 executive order directing the FDA Commissioner to collaborate with the PTO on potential misuse of the patent system, I've been skeptical as to whether such efforts will have any impact on the number and quality of...?Read more

Default [Judgments] & the U.S. Open.? The late and great tennis writer and broadcaster Bud Collins loved loud pants (Google it), nicknames (ditto), and “net cords,”* those balls that hit the top of the net and through some combination of physics and fortune fall on the opponent's side...?Read more.?

Is It In or Is It Out? Whether an argument raised?in a Petitioner Reply falls within the scope of permissible arguments following a Patent Owner Response (POR) in IPR?proceedings is a frequent source of dispute. As Axinn reported back in August, the Federal...?Read more

Will the FTC Evade a String of Constitutional Attacks? Less than two months ago, the FTC faced at least five separate lawsuits challenging the constitutionality of the agency in response to antitrust actions. Today, three of those have been settled or dismissed, and a fourth appears to be in question....?Read more

Supporting the National Asian Pacific Bar Association’s Annual Convention.? We are proud to support the National Asian Pacific Bar Association as it holds its Annual Convention on November 9-12 in Indianapolis. The Convention is an annual gathering of Asian American, Native Hawaiian, and Pacific Islander (AANHPI)...?Read more.?

The Five Eyes Stare Down Trade Secret Theft.? On Sunday evening, CBS's 60 Minutes aired a segment featuring “The Five Eyes” and the critical issue of state-sponsored intellectual property ("IP") and trade secret theft. While geopolitics and national security issues might not be directly on...?Read more.?

Buyer Beware - Antitrust Issues in Using AI-Powered B-to-B software.? I remember my years renting apartments in Manhattan - with absolute dread! Every time I had to move, it seemed that the brokers and landlords had the upper hand, the system was rigged, and that you had to “know someone” to get a good deal. So, it...?Read more.?

“A”/“An” Means “One or More,” Said the Federal Circuit…Again.? In ABS Global, Inc. v. Cytonome/ST, LLC, No. 2022-1761, 2023 WL 6885009 (Fed. Cir. Oct. 19, 2023), the Federal Circuit issued a precedential reminder that the use of “a” or “an” means “one or more” in an open-ended claim unless the claims, the...?Read more.?