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Intellectual Property Report

Client Updates

PTAB Condemned? The Emerging Challenge to IPRs Under the Takings Clause
Alanna Brallier
On August 24, 2020, in Christy, Inc. v. United States, No. 2019-1738, __ F. 3d __ (Fed. Cir. 2020), the Federal Circuit affirmed the Court of Federal Claim’s opinion that the cancellation of pre-AIA patent claims in an inter partes review is not a Fifth Amendment taking. In reaching its decision, the lower court held that “patent rights are not cognizable property interests for Takings Clause purposes.” Christy, Inc. v. United States, 141 Fed. Cl. 641, 660 (Ct. Fed. Cl. 2019). This premise paints a clean and simple picture in the post-AIA world of intellectual property. However, in reality, the premise is far from settled. The Court of Federal Claims’ and Federal Circuit’s position is the subject of many petitions for review before the Supreme Court.
To read the full article, click here.

USPTO Launches New Fast-Track Appeals Pilot Program
Dr. Michael Sartori, Matthew Welch
On July 2, 2020, the United States Patent and Trademark Office (“USPTO”) enacted the Fast-Tack Appeals Pilot Program (“Program”) to expedite the appeal process.1 Under the Program, the Patent Trial and Appeal Board (“PTAB”) plans to issue a Decision within six months from the date the appeal is entered into the Program, thereby reducing the lengthy appeal process which may be benefit certain Applicants. This article reviews the current appeal process, describes the Program, and explores the Program’s utilization.
To read the full article, click here.
*This article was previously published by The Washington Legal Foundation on September 10, 2020

Recently Introduced Bill Would Limit ITC 'Domestic Industry by Subpoena'
Robert Maier, Michael Knierim
Patent infringement disputes in the United States are not only heard in district courts. The U.S. International Trade Commission (ITC), an administrative agency delegated with responsibility over trade disputes, also decides high-stakes intellectual property disputes—with the remedy for the IP rights holder not being damages, but rather an exclusion order that can block a competitor’s importation of infringing articles into the U.S. That remedy can be incredibly powerful for companies engaged in stiff competition in the U.S. market.
To read the full article, click here.
*This article was previously published in The New York Law Journal on September 22, 2020.

Peter Kang Joins Baker Botts in Palo Alto
We are pleased to announce that Peter Kang has joined Baker Botts as Partner and Co-Chair of the Korea Practice. He will be based in the Palo Alto and San Francisco offices to continue to serve the needs of cutting-edge and global clients from Silicon Valley to Asia and beyond.
Mr. Kang is a first-chair patent and IP trial lawyer, having tried dozens of bench and jury trials during his career. In addition to trials in district courts and hearings at the International Trade Commission, he also represents clients before the Patent Trial & Appeal Board. He advises in all areas of intellectual property law for clients that range from Silicon Valley startups to multinational electronics manufacturers, especially from Asia.
To view Peter's bio, click here.

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