Insights

Intellectual Property Report: December 2019

Firm Thought Leadership

Manufacturing Methods Directed to Natural Laws Are Not Patentable Subject Matter
Aashish Kapadia
In American Axle Manufacturing, Inc. v. Neapco Holdings LLC, the Federal Circuit held that manufacturing methods that merely embody natural laws are not patentable subject matter under 35 U.S.C. § 101. Section 101 provides that “any new and useful process, machine, or composition of matter, or any new and useful improvement thereof” may be eligible for patent protection. This broad grant has long excluded natural laws, natural phenomena, and abstract ideas—which are ineligible for patent protection. Although recent cases have focused on whether software patent claims embody abstract ideas, the Federal Circuit in American Axle emphasized that patent claims directed to the mechanical arts embodying natural laws are also subject to scrutiny under § 101.
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Death of the DJ: The Decline of Declaratory Judgment Actions in Patent Disputes
Rob Maier, Joseph Akalski
Declaratory judgment actions, commonly referred to as “DJ actions,” have historically provided a mechanism for companies threatened with a patent infringement claim, e.g., through a cease and desist letter sent by a patent holder, to preemptively file a lawsuit seeking a court ruling declaring the patent invalid or not infringed. These DJ actions for years had been a popular tool for accused infringers, but recent changes in the patent litigation landscape have resulted in a shift away from these DJ actions, and a corresponding shift in the way patent holders approach infringers.
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*This article was previously published in law.com on November 26, 2019.

The Copyright Alternative in Small-Claims Enforcement Act of 2019
Christopher Ratway
What happens when your copyrighted works are used without permission, but damages are too little to be worth pursuing in Federal Court? As of today, the answer is usually the opposite of justice—the infringer gets away scot-free without any reason to stop infringing. Soon, this could all change. In October 2019, the United States House of Representatives in a bipartisan effort passed the Copyright Alternative in Small-Claims Enforcement Act of 2019 (“the CASE Act” or “the Act”). , If the Act passes in the Senate and is signed into law by the President, the Copyright Office will create, as the name of the Act suggests, a copyright small claims board that will hear copyright claims of up to $15,000 per work infringed, with damages capped at a total of $30,000 per proceeding. As a cost-effective alternative to the high cost of bringing a case in Federal Court, this new copyright small claims forum could be a game-changer for both infringers and copyright owners alike.
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November 2019 Intellectual Property Report Recap
In case you missed it, here is a recap video of our November 2019 Intellectual Property Report that looked at:
• Antitrust issues for open source software
• The patent landscape post-TC-Heartland
• Updated USPTO guidance

DOJ Forms New Criminal Antitrust “Strike Force” Focused on Investigating Price Fixing and Bid Rigging For Government Contracts
Heather Souder Choi, Joseph Ostoyich, Caroline L. Jones
On November 5, 2019, the U.S. Department of Justice (“DOJ”) announced the creation of a new “strike force” designed to combat criminal antitrust violations in the government procurement process. The newly-formed Procurement Collusion Strike Force (“PCSF”) will include prosecutors from DOJ’s Antitrust Division and 13 U.S. Attorneys’ Offices, as well as investigators from various partner agencies such as the Federal Bureau of Investigation, the Department of Defense Office of Inspector General, and the U.S. Postal Service Office of Inspector General.
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