On December 13, 2017, a panel of Administrative Patent Judges (Judges Grace Karaffa Obermann, Bart Gerstenblith, and Robert Kinder) of the Patent Trial and Appeal Board (PTAB) for the United States Patent and Trademark Office granted Petitioner Campbell Soup’s motion for a modified protective order in inter partes review (IPR) proceedings brought against patents owned by Gamon Plus.  Campbell Soup Co. v. Gamon Plus, Inc., IPR case nos. IPR2017-00087, IPR2017-00091, IPR2017-00094.

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On December 7, 2017, Judge Rodney Gilstrap of the United States District Court for the Eastern District of Texas (ED Tex.) granted motions by three suppliers to intervene in a patent lawsuit brought against retailer Wal-Mart in the Marshall Division of that district.  Team Worldwide Corp. v. Wal-Mart, case no. 2:17-cv-235.  The ED Tex. has been a notoriously popular district for patent suits for more than a decade, a period when patent suits typically could be brought in any district where the defendant was subject to personal jurisdiction.  Earlier this year, however, the United States Supreme Court limited patent venue to districts (i) where the defendant corporation is incorporated, or (ii) where the defendant has a place of business and is alleged to have infringed.  T.C. Heartland LLC v. Kraft Foods Group, 137 S.Ct. 1514 (2017).  One result of the ruling was predicted to be an upswing in E.D. Tex. suits naming national retailers as the defendants instead of their suppliers, on the theory that the retailers would be subject to venue in that district even if their suppliers were not.

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The United States Patent and Trademark Office has adopted a new rule, 37 C.F.R. § 42.57, that among other things gives communications with foreign-jurisdiction patent agents the same protection they would be accorded if they were communications with a U.S. attorney.

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On November 27, 2017, the U.S. Supreme Court heard oral argument in two cases dealing with the United States Patent and Trademark Office inter partes review (IPR) proceedings that were created in the America Invents Act in 2011.  IPRs have been a frequent topic of discussion in the U.S. intellectual-property community since they began; the general impression is that they are a very useful and very effective way of invalidating issued patents, but there is also concern among patent owners that IPRs may be too effective, invalidating patents that a District Court judge or jury would have upheld.

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On November 27, 2017, the United States District Court for the District of Minnesota ordered summary judgment of patent eligibility in Soultran, Inc. v. U.S. Bancorp, No. 13-cv-2637.  The claimed invention was directed to a method of check processing comprising (i) receiving check data from a point-of-sale terminal, (ii) crediting the merchant’s account, (iii) receiving the physical check and scanning it, and (iv) comparing the resulting image to the check data.  The Court ruled this invention to be patent-eligible pursuant to 35 U.S.C. § 101, as a matter of law.

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On November 17, 2017, the Patent Trial and Appeal Board (the “Board”)—the division of the United States Patent and Trademark Office that handles inter-partes review proceedings—announced new internal operating procedures that will govern how the Board will handle inter partes review proceedings that the Court of Appeals for the Federal Circuit remands to the Board after appeal.  See P.T.A.B. Standard Operating Procedure (“SOP”) 9

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On November 15, 2017, the United States Court of Appeals for the Federal Circuit issued two opinions explaining how district courts should determine whether, in cases filed prior to the recent Supreme Court TC Heartland venue decision, a defendant waived the defense of improper venue.  In the first opinion, In re Micron Techs., No. 2017-138, the Court issued a writ of mandamus and ordered the District Court to reconsider its decision that the defendant had waived the defense; in the second opinion, In re Cutsforth, Inc., No. 2017-135, the Court issued a writ of mandamus and ordered the District Court to reconsider its decision that the defendant had not waived the defense.

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