2022 Case Law Year in Review
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2022 was an active year for IP cases. Our panelists are three litigators in private practice, all members of IPO’s Amicus Brief Committee. They will review the most significant decisions as of 2022 and give a sneak peek at coming attractions.
On the patent side of things, the Supreme Court has granted certiorari in Amgen v. Sanofi taking up the issue of enablement. While this case involves the biopharma industry, what constitutes proper enablement cuts across all technologies, and the Supreme Court’s decision may shed light on the written description requirement as well. As to Section 101, the Supreme Court took a step back from this issue by denying certiorari in American Axle, notwithstanding the recommendation of the Solicitor General. The panel will review the relative lack of predictability that continues as a result regarding patent eligibility. And last, but certainly not least, the panel will explore the changes being wrought by the Vidal administration at the USPTO.
On the trademark side, the Supreme Court has granted cert on two cases- Abitron Austria GmbH v. Hetronic International, and VIP Prod. LLC v. Jack Daniel's Properties, Inc., with Abitron addressing the extent of the extraterritorial reach of the Lanham Act, and Jack Daniels considering what commercial products should be considered “expressive works” to invoke free speech protections in a trademark action. Other 2022 decisions raised fascinating issues, including how trademark law is applied in the context of nonfungible token (NFT) technology.
McDonnell Boehnen Hulbert & Berghoff LLP
Paul Berghoff, founder of McDonnell Boehnen Hulbert Berghoff LLP, has three decades of experience as lead trial counsel in complex patent litigation – both jury and bench trials and PTAB proceedings – concentrating in litigation involving pharmaceuticals, medical devices, biotechnology, electronics, and software. He has successfully tried scores of patent cases and has successfully argued dozens of times before he US Court of Appeals for the Federal Circuit. He services as Chair of the firm’s Litigation & Appeals Practice Group. He is Vice-Chair of IPO’s Amicus Brief Committee.
Greg Castanias is a partner at Jones Day in Washington, DC. He is head of the firm’s Federal Circuit team and has almost 30 years’ experience as a leading appellate and intellectual property litigator. His experience includes five US Supreme Court arguments, 70+ Federal Circuit arguments, and countless others in federal and state courts across the nation, from Alaska to Connecticut. His intellectual property experience includes such diverse technologies as genetics, diagnostics, pharmaceuticals, chemistry, electronics, and mechanical fields, as well as copyright, trademark, and trade secret disputes. He is Vice-Chair of IPO’s Amicus Brief Committee.
Wendy Larson practices trademark law with a focus on litigation. She focuses specifically on issues relating to the internet, including cybersquatting and brand protection challenges involving social media platforms and smartphone applications, keyword advertising, service provider liability, and personal jurisdiction relating to foreign online actors. She practices in federal court, before the Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB), and with dispute resolution service providers such as the Forum and the World Intellectual Property Organization (WIPO) handling domain name disputes under ICANN’s domain name dispute resolution policies. Wendy also assists clients in a variety of prosecution and other litigation matters. Wendy is a member of IPO’s Amicus Brief Committee.