I FORMS OF INTELLECTUAL PROPERTY PROTECTION

A robust system for protecting intellectual property rights is available in the United States. The forms of intellectual property protection available include patent, copyright, trademark and trade secret. Each of these forms of intellectual property has its own strengths and weaknesses, and generally the selection of the type of protection is based on the subject matter at hand and the nature of the protection desired.

i Utility patents

Utility patents are generally considered the strongest level of intellectual property protection in the United States. They grant the owner the right to exclude infringers from making, using, offering for sale or selling within the United States, or importing into the United States, the patented invention. To be eligible for a utility patent, the invention must be new, useful and not obvious, and be patentable subject matter. While originally a first-to-invent system, patent applications filed on or after 16 March 2013 are examined based upon a first-to-file regime.

The term of a new utility patent is 20 years from filing of the application. Should Patent Office delays cause the examination process to exceed three years, a mechanism called patent term adjustment is used to restore the lost patent term. A patent term extension is also available for one patent covering a pharmaceutical product that was subject to review by the US Food and Drug Administration (FDA).

The United States does not offer utility model protection (or any equivalent protection) as found in many other countries. The United States does, however, allow applicants to file for provisional patent protection to establish a priority date. A provisional patent application is filed with the Patent Office but does not undergo substantive patent examination, nor can any patent rights be granted directly from the application. Once filed, the applicant has up to one year to file a full utility application that references the provisional application. Otherwise, the provisional application is abandoned.

ii Copyright

Copyright is available in the United States to protect literary and artistic works, and is available for original works by authors or artists in a tangible format. Copyright protection subsists for both published and unpublished works upon their creation in a tangible format, so copyright registration – while advisable – is not necessary to create copyright in the United States. Registration, however, is necessary to litigate copyright infringement of US works and allows a copyright holder to claim statutory damages for infringement. Copyrights are subject to several fair-use defences that negate copyright infringement (e.g., news reporting, teaching, research), and are also subject to First Amendment protection (i.e., constitutionally protected free speech). A copyright generally has a term of the author's lifetime plus 70 years.

Works published outside the United States may also be eligible for copyright protection within the United States through a treaty (e.g., the Berne Convention) depending upon the country in which the work was first published.

iii Design patents

Design patents are also available in the United States, and cover the ornamental appearance (i.e., aesthetic design) of tangible articles. A design by itself is not sufficient to be covered by a design patent; the design must be embodied in the tangible article to be claimed. Design patents cover everything from medicinal tablets to athletic shoes. To be patentable, a design also must be new and not obvious. On 13 May 2015, the Patent Office began accepting design patent applications through the Hague Agreement for industrial designs. The term for design patents issued from applications filed on or after 13 May 2015 is 15 years from the date of grant. Design patents filed before 13 May 2015 have a term of 14 years from the date of grant. With respect to damages for infringing design patents, the Supreme Court recently held that damages are not always equal to the value of the entire device and may be limited to only the infringing component of that device.2

iv Plant patents

Patent protection is also available for new plants that have been asexually propagated. This patent protection covers asexually propagated plants, even if they are capable of sexual reproduction, but specifically excludes tuber-propagated plants. Plant patent protection is available in addition to utility patent protection, and provides the right to exclude others from using, selling, offering for sale or importing the asexually propagated plants or parts from the plants in the United States. The term for a plant patent is 20 years from filing of the application.

v Trademarks

Federal trademark registration is available for products or services used in interstate commerce in the United States. Various state laws also protect trademarks in the United States. While federal trademark registration is not required to use a trademark, there are several advantages to federal registration, including the exclusive right to use the trademark nationwide, the ability to use the symbol ® within the United States and the ability to bring trademark infringement actions in the federal courts. There is a formal trademark application and examination process, including publication for opposition. Additionally, intent to use applications may also be filed. Trademark applicants may file with the Patent Office or through the Madrid Protocol.

vi Trade secrets

Until 2016, trade secret protection was mostly regulated by individual state law in the United States, with the vast majority of states having enacted some version of the Uniform Trade Secrets Act (UTSA). In 2016, Congress enacted the Defend Trade Secrets Act of 2016, which provides for federal trade secret protection.3 This federal law supplements state law causes of action available for trade secrets. Federal law also contains criminal provisions relating to economic espionage and theft of trade secrets. While trade secrets have typically been relegated to information that was considered unpatentable or could not be easily reverse-engineered, the prior user rights defence to patent infringement may increase the value and prevalence of trade secrets.

vii Regulatory exclusivities

In the pharmaceutical and biotechnology fields, intellectual property protection is augmented by various types of regulatory exclusivity from the FDA. In the case of pharmaceutical drugs, the FDA grants exclusivity for new chemical entities (five years), new drug products (three years), certain changes to drug products (three years), orphan drugs (seven years), paediatric exclusivity (six months) and exclusivity for the first generic applicant to challenge patents asserted to cover the drug (six months). In the case of biologic drugs, the FDA grants 12 years of data exclusivity against approval of a generic, or 'biosimilar', application, but there is no corresponding exclusivity for the first biosimilar applicant to challenge a patent covering the biologic drug. In the case of new antibiotic drugs that target certain drug-resistant micro-organisms, the FDA is authorised to add five years to applicable exclusivities under the Generating Antibiotic Incentives Now (GAIN) Act. GAIN exclusivity allows for up to a decade of marketing exclusivity for certain antibiotic drugs that are eligible for new chemical entity exclusivity.

II RECENT DEVELOPMENTS

i Legislation

Enacted on 16 September 2011, the Leahy-Smith America Invents Act (AIA) was the most comprehensive patent reform legislation in the United States in over 60 years. Since enactment of the AIA, new legislation concerning intellectual property rights has been largely absent. By contrast, the courts and the Patent Office have been quite active in shaping intellectual property law, including clarifying provisions of the AIA.

ii Court opinions

Oil States Energy Services LLC v. Greene's Energy Group LLC (decided 24 April 2018) (Supreme Court)

In what was the most eagerly anticipated patent case pending before the Supreme Court last year, the court considered whether inter partes review (IPR) at the Patent Office is constitutional. Added as part of the AIA, IPRs have become a popular forum to challenge the validity of issued patents. These proceedings are conducted by the Patent Office and, while quasi-judicial in nature, are not conducted by a district court. The argument before the Supreme Court focused on whether the Patent Office, which is not part of the judiciary, can take back private rights after they are granted. In a narrow decision, the Supreme Court held that s patent is a publice franchise, and the IPR process is constitutional, falling within the public rights doctrine. However, that holding did not address other questions, such as whether patents issued before implementation of the AIA are properly subject to IPR. While not before the Supreme Court yet, that question is currently being litigated in the lower courts.

SAS Institute Inc. v. Iancu (decided 24 April 2018) (Supreme Court)

Last year, the Supreme Court considered whether the Patent Office must consider all of the challenged patent claims during an IPR. Under the then-current practice, the Patent Office could deny the IPR petition outright, grant the petition in its entirety or grant review of only certain patent claims. In SAS, the Supreme Court held that the Patent Office must take the 'all-or-nothing' approach for these petitions. Thus, if the Patent Office chooses to institute the petition, it must review all of the challenged claims. As a result, patentees will now face challenges on more claims than in the past, although in some recent institution decisions the Patent Office has indicated which grounds are not particularly strong compared to other grounds. Likewise, petitioners face the downside of estoppel in any district court litigation over all the claims too. This change does not appear to have affected the number of petitions instituted, but petitioners should be mindful of the greater scope of estoppel when selecting claims to challenge.

Helsinn Heathcare SA v. Teva Pharmaceuticals USA (decided 22 January 2019) (Supreme Court)

In Helsinn, the Supreme Court addressed whether modifications to the Patent Act, made as part of the AIA, changed the on-sale bar to exclude private sales, which under well-settled law before the AIA prevented obtaining a patent after one year of a sale, including confidential sales. Helsinn, a Swiss pharmaceutical manufacturer, had contracted with a marketing partner in the US to distribute the product. While the terms of the contract were kept confidential, Helsinn did not file for patents covering the product for nearly two years after the agreements were made. As part of the AIA, the section of the Patent Act which included the on-sale bar was modified to include the catch-all phrase 'or otherwise available to the public.' Despite this modification, the court held that the on-sale bar was unchanged, and private sales will still trigger the bar. While this law is well-settled, it has ensnared many inventors who mistakenly believe that only public disclosure of the invention can bar a patent.

Rimini Street v. Oracle USA (decided 4 March 2019) (Supreme Court)

In Rimini Street, the Supreme Court considered whether prevailing parties in copyright cases are entitled to 'full' costs, beyond the six categories of 'taxable costs' specified in 28 USC Sections 1821 and 1920, such as court fees, deposition fees, copying fees, etc. Taxable costs do not include many other litigation expenses, including expert witness fees, consulting fees, or electronic discovery fees. For complex cases, these non-taxable fees easily exceed the taxable costs typically awarded to a prevailing party. In Rimini Street, the lower courts interpreted the copyright statute's use of the term 'full costs' to include both taxable and non-taxable fees, which totalled over US$12 million. The Supreme Court reversed that decision, holding that the copyright statute's reference to 'full' costs means only those costs specified in the general taxable costs statute. More broadly, the court stated that statutes awarding costs will not be construed as awarding expenses beyond the categories listed in Sections 1821 and 1920 absent explicit statutory instruction to that effect.

Return Mail Inc v. United States Postal Service (argued 19 February 2019) (Supreme Court)

In an atypical patent case pitting the government against itself, the Supreme Court is set to decide whether the US federal government constitutes a 'person' within the meaning of the AIA for post-grant proceedings, including IPR. In Return Mail, the US Postal Service, which is a government agency, filed an IPR petition to cancel a patent involving bar coding technology. Of course, the Patent Office, which had previously issued the patent, is another government agency and thus the Postal Service's petition created a dispute between two government agencies. Under federal law, a 'person' is typically limited to private entities, which should exclude government agencies like the Postal Service. While it is unclear which way the court may rule, allowing government agencies to file petitions under the AIA only increases the exposure of patents to potential cancellation.

Mission Product Holdings Inc v. Tempnology LLC (argued 20 February 2019) (Supreme Court)

Currently before the Supreme Court is a case where bankruptcy law meets trademark rights. For a trademark licensee, the bankruptcy filing of its licensor can be a significant problem. In the US, the bankruptcy laws allow licensors to reject contracts during bankruptcy proceedings, which constitutes breach of contract under the law. The question then becomes whether the rejection also allows for the recession of the trademark licence, a prospect that could be ruinous for a licensee. This same prospect is not at issue for patents and copyrights in the US as Congress passed a statute that expressly allows a licensee to retain those rights. Unfortunately, this statute is silent with respect to trademark licenses. Whichever way the court rules, this issue is important to consider when licensing trademarks in the US.

III OBTAINING PROTECTION

Patent applications may be filed for utility, design and plant patent protection. To file for utility patent protection in the United States, an application may be filed directly with the Patent Office or as an international Patent Cooperation Treaty application.

For utility patents, patentable subject matter includes machines, manufactures (i.e., articles of manufacture), compositions of matter, methods and improvements to any of these four. Some notable exceptions to this broad rule are laws and products of nature, and abstract ideas. These exceptions have been extensively considered by the Supreme Court over the past several years. In particular, inventions subject to these exceptions include some business methods,4 medical diagnostic methods5 and isolated DNA.6 Recently, the Patent Office has issued new guidance outlining examination of patent applications concerning these exceptions.7

IV ENFORCEMENT OF RIGHTS

i Possible venues for enforcement

There are two possible venues for enforcement of patents. First, infringement actions may be brought before the courts of the 94 federal districts that are spread throughout the United States and Puerto Rico. Second, in order to prevent importation of infringing goods, an investigation can be commenced by, and at the discretion of, the International Trade Commission (ITC), an administrative agency that sits in Washington, DC.

ii Requirements for jurisdiction and venue

An infringement suit may be brought only in a federal district where the defendant resides or, for businesses, has been incorporated.8 Foreign defendants may be sued in any federal district so long as personal jurisdiction can be found in the United States. The ITC, on the other hand, does not depend on personal jurisdiction over the accused party but has in rem jurisdiction over the accused infringing imported goods.

iii Obtaining relevant evidence of infringement and discovery

Liberal discovery rules in the United States allow for a significant amount of pre-trial discovery under a broad concept of relevance. Discovery is available from the opposing party through a variety of vehicles, including mandatory disclosures, requests for documents and things, interrogatories, depositions of witnesses and expert reports. Discovery is also available from non-parties by a subpoena for documents or deposition. One of the biggest drivers of the cost of discovery is electronic discovery, leading some courts to propose limits on the number of custodians or search terms that need to be searched. For ITC investigations, both party and non-party discovery are also available but must be produced faster given the compressed time frame of such investigations.

iv Trial decision-maker

Patent infringement actions may be tried before either a federal judge or a jury. In order to be eligible for a jury trial, there must be a claim for monetary damages. Because federal judges do not exclusively handle patent cases, some may have little experience with patent matters. In the case of ITC investigations, an experienced administrative law judge who specialises in patent cases will typically decide the matter.

v Structure of the trial

A patent infringement trial will usually occur in two phases. The first phase determines infringement, validity and unenforceability, and the second phase, if needed, addresses damages. Evidence is presented through fact and expert witnesses, and must be admitted into the record to be considered by the judge or jury. The Federal Rules of Evidence determine what information can be included in the record. Demonstrative evidence may also be used at the trial in the form of summaries and diagrams.

At trial, the patentee must prove infringement with evidence meeting the preponderance standard (i.e., infringement is more likely than not). For an accused infringer to prevail on its invalidity or unenforceability defences, it must prove its case with evidence meeting the more rigorous, clear and convincing standard because of the statutory presumption of patent validity.

Prior to trial, disputes regarding patent claim interpretation are typically decided by the judge in a process called a Markman hearing. This process can become essentially a miniature trial before the judge and may include witness or expert testimony. Although the outcome of the Markman hearing may determine the eventual result in the case (so that, if the appellate court ultimately decides it was erroneous, the case may have to be retried), the Federal Circuit has consistently refused to review it as an interlocutory matter.

vi Infringement

Infringement may be direct or indirect. For direct infringement, all of the elements of the claim must be present in the accused product or method. Should a product not literally contain every element, the missing element may be shown using the doctrine of equivalents. The doctrine of equivalents is limited to equivalents that were not foreseeable at the time the patent claim was amended, and cannot include equivalents that are described in the specification and not claimed or were distinguished during patent prosecution.

Infringement may also be indirect. Indirect infringement includes inducement and contributory infringement. For indirect infringement to be proven, evidence must show that there is direct infringement and that the indirect infringer is either inducing that infringement or is contributing to that infringement.

vii Defences

The most common defences to patent infringement are non-infringement, patent invalidity and inequitable conduct. All of these defences can be brought either as affirmative defences or as counterclaims.

Prior art and inventor's grace period

For applications with an effective filing date on or after 16 March 2013, public use or sale in foreign countries and art that is 'otherwise available to the public' is additional prior art. Inventors of these applications are provided a one-year grace period against their own disclosures (or a disclosure by someone who obtained the subject matter from the inventor), or for public disclosures made after a disclosure by the inventor (or another who obtained the subject matter from the inventor). To avoid an intervening disclosure from becoming prior art, the inventor must have publicly disclosed the same subject matter prior to the intervening disclosure. Otherwise, the intervening disclosure will be considered prior art for any subject matter not publicly disclosed by the inventor prior to the intervening disclosure. Of course, the first inventor's own disclosure must be made within the one-year grace period to avoid becoming prior art itself. Applications with an effective filing date before 16 March 2013 are given the prior one-year grace period for public uses or sales in the United States.

Patent invalidity

Invalidity defences include anticipation, obviousness and lack of enablement or written description.

Inequitable conduct

Patent infringers can also assert inequitable conduct to render the patent unenforceable. The standard for inequitable conduct requires clear and convincing evidence that the patent applicant misrepresented or omitted material information during prosecution of the patent with the intent to deceive the Patent Office. Information is material only if the Patent Office would not have allowed a claim had it been aware of the undisclosed prior art or correct information. Patent infringers may also assert more esoteric equitable defences such as laches9 and equitable estoppel.

Non-infringement defence

The non-infringement defence can include either the lack of infringement or the existence of a licence.

Prior user rights defence

The prior user rights defence applies so long as the accused infringer commercially used the process in the United States at least one year before a subsequent inventor filed for a patent or the subsequent inventor publicly disclosed the invention, and provided the use was not derived. The accused infringer must prove this commercial use by clear and convincing evidence.

There are several further limitations to asserting this defence, including that it can only be asserted by an alleged infringer for its internal commercial use or for an actual arm's-length sale or transfer; it cannot be licensed and can only be transferred with the entire business; and it cannot be asserted against inventions made by, owned by or assigned to universities.

Derivation actions

Someone who claims to be the true inventor of a patent may assert rights to a patent over another who has 'derived' the invention within the Patent Office for patent applications, and within the federal courts for issued patents. These derivation proceedings replace interference practice previously used to adjudicate priority between inventors under the first-to-invent system. Applications with an effective filing date before 16 March 2013 will still be eligible for an interference proceeding and applications with an effective date on or after 16 March 2013 are eligible for a derivation proceeding. A derivation civil action must be brought within one year of the issuance of the allegedly derived patent and a derivation proceeding in the Patent Office must be brought within one year of the first publication of the allegedly derived claim.

viii Time to first-level decision

For the federal district courts, the median time to trial for patent infringement actions is about two to two-and-a-half years, although this varies widely by federal district. If the case is tried before a jury, the jury will deliberate after all of the evidence is presented and will render its verdict, usually very promptly, thereafter. For a trial before a judge, the time needed to review all of the evidence and prepare the decision can take significantly longer, from months to over a year in some cases. ITC investigations are typically significantly faster, with the time from complaint to a final determination usually taking about a year to a year-and-a-half.

ix Remedies

Remedies for patent infringement include damages and injunctive relief. The patentee is entitled to actual damages, which may include lost profits and can be no less than a reasonable royalty for the infringement. A patentee who can show that the infringement was wilful may also be able to receive enhanced damages up to treble damages. The Supreme Court recently relaxed the enhanced damages standard by rejecting an objectively reckless requirement imposed by the Federal Circuit and leaving enhanced damages awards within the discretion of the district court.10 It appears this discretion standard has recently increased the number of awards of enhanced damages, but such damages are to be limited to egregious cases of infringement and not typical patent infringement. A prevailing party who can show under the 'totality of the circumstances' that the case is exceptional may also be awarded attorneys' fees, although this type of relief is also discretionary and not frequently granted.

A patentee may also request a preliminary injunction pending trial or, after trial, a permanent injunction against future infringement. Injunctions are not automatic in patent cases and require the court to consider the relative harms to the patentee and the infringer as well as any public interest.

For ITC complaints, the principal remedy available is an exclusion order prohibiting importation.

x Appellate review

The Court of Appeals for the Federal Circuit reviews all trial-level patent decisions. This court is tasked with deciding appeals from final judgments and preliminary injunctions in patent cases, as well as appeals from the ITC and Patent Office. The record on appeal is typically limited to the trial record and no new evidence is allowed. The court sits as a three-judge panel and hears the oral argument. Once argued and submitted, the panel issues its opinion, usually within six months or less.

The losing party can petition for a panel rehearing or for the entire Federal Circuit court to hear the case. Such petitions are rarely granted. The losing party may also petition the Supreme Court though a writ of certiorari but, again, that is only granted rarely, and only when the case presents a legal issue of very high significance.

xi Alternatives to litigation

For civil actions, mediation and arbitration may be available to resolve patent disputes. While not compulsory, these mechanisms may be less costly than continuing with litigation. The Federal Circuit also has a mediation programme for appeals in patent cases.

The Patent Office also has procedures for review of patent applications and issued patents that are independent of court proceedings.

Pre-issuance submissions

Third parties may anonymously, and for a modest fee, submit patents, published patent applications and other printed publications for consideration and inclusion in the patent record provided that the third party provides a concise statement regarding the relevance of each reference. A third party must make its pre-issuance submission before the earlier of a notice of allowance for the patent or the later of six months after publication of the patent application or the first rejection of the application.

Supplemental examination

A patent owner may also request supplemental examination after a patent is granted. This procedure can be used by a patent owner to submit new information regarding patentability. If the Patent Office finds that a substantial new question of patentability is raised, it will order a re-examination of the patent. This procedure provides a potentially powerful tool for a patent owner to avoid the threat of inequitable conduct allegations in the future, but cannot be used to remove currently pending inequitable conduct allegations or for prior art currently asserted in litigation against the patent.

Post-grant review

Post-grant review (PGR) allows a third party to petition the Patent Office to review a patent or broadening reissue patent based upon patents, printed publications and affidavits. The petitioner must file within nine months of issue of the patent or reissue patent, and can request cancellation of one or more claims of a patent or broadened claims in a reissue patent. The Patent Office will grant the petition if at least one of the claims is likely to be unpatentable, or the petition raises a novel or unsettled important legal question. This is more restrictive than the prior re-examination standard, which required only that the third party establish the existence of a substantial new question of patentability. A denial of the petition is not reviewable by the courts.

If the petition is granted, the petitioner must show invalidity by a preponderance of the evidence standard before the Patent Trial and Appeal Board (PTAB). The PTAB decisions are reviewable by the Federal Circuit. Post-grant petitions are available for patents with claims having an effective filing date on or after 16 March 2013.

Inter partes review

A third party may also request IPR of an issued patent. An IPR petition can be filed by a third party either nine months after a patent or reissue patent issues, or after the termination of a PGR, whichever is later. For a defendant already involved in an infringement action, the defendant has one year from the service of the infringement lawsuit to file an IPR petition.11

IPR is limited to invalidity because of anticipation or obviousness, and can only be alleged based on patents or printed publications. The standard for granting an IPR petition is the same as a PGR petition, and the petition, if granted, will be decided by the PTAB. A decision not to institute an IPR cannot be appealed.12 For potential infringers considering filing an IPR petition, an adverse written decision from the PTAB functions as an estoppel in the Patent Office or a civil trial for 'any ground that the petitioner raised or reasonably could have raised' in the IPR petition.13

One recent change in IPR practice involves the claim construction standard applied. In the past, the PTAB construed patent claims using the broadest reasonable claim construction standard, a standard that is broader than the one used in district court litigation. As a result, this broader standard increased the risk of invalidity in an IPR versus district court litigation. However, the PTAB has recently reversed course, and now uses the same claim construction standard applied by district courts. While this may appear to benefit the patentee, a potential downside exists for concurrent IPR and district court litigations. It is likely that the PTAB will issue its preliminary claim constructions first, and the district court may simply adopt them. If they are erroneous, the patentee may be in a more difficult position during the district court litigation as a result.

As a hedge against potential invalidity, a patent owner may submit a limited number of amended claims for consideration by the PTAB, and the IPR petitioner must also show these amended claims are invalid.14 However, while submitting amended claims is allowed, and the Patent Office has recently indicated a willingness to improve the claim amendment process,15 current practice shows that the PTAB rarely grants the amendment, limiting their utility in avoiding cancellation of all patent claims.

Since taking effect, about 9,600 IPR petitions have been filed. Of the approximate 8,700 petitions that have reached the stage of an institution decision by the PTAB, about 14 per cent were settled before the PTAB considered whether to institute the petition. For the remaining petitions, since inception, about 67 per cent were instituted for trial by the PTAB and the rest were denied.16 This rate of institution for IPRs has steadily declined from 87 per cent in 2012 to 60 per cent in 2018. For the instituted petitions, the PTAB has completed approximately 2500 trials with written decisions, with the majority (approximately 64 per cent) ending with all instituted claims found unpatentable. For the remaining petitions, the split was almost evenly divided between some claims found unpatentable (approximately 17 per cent) and no claims found unpatentable (approximately 19 per cent).

V TRENDS AND OUTLOOK

The past several years have seen significant changes for intellectual property law in the United States. The most important change has been the implementation of IPR petitions to challenge the validity of issued patents. While it does not appear that IPR proceedings have supplanted traditional patent litigation in district courts, IPR petitions appear to be filed concurrently with a large number of traditional litigations. The Patent Office and courts have been busy refining the IPR process with rule-making and opinions. Although initially the IPR process appeared favourable only to patent challengers, the current statistics show more patent claims surviving the process.


Footnotes

1 Erin J D Austin is counsel and Dominick A Conde is a partner at Venable LLP. Jason A Leonard is a partner at Hogan Lovells US LLP.

2 Samsung Electronics Co., Ltd v. Apple Inc (decided 6 December 2016) (Supreme Court).

3 18 U.S.C. Section 1836(b).

4 Alice Corp Pty Ltd v. CLS Bank Intl (decided 19 June 2014) (Supreme Court) and Bilski v. Kappos (decided 28 June 2010) (Supreme Court).

5 Mayo Collaborative Servs. v. Prometheus Labs (decided 20 March 2012) (Supreme Court).

6 The Association for Molecular Pathology v. Myriad Genetics, Inc (decided 13 June 2013) (Supreme Court).

8 TC Heartland LLC v. Kraft Foods Group Brands LLC (decided 22 May 2017) (Supreme Court).

9 The Supreme Court recently limited the reach of laches during the statutory damages period in both patent and copyright cases. SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC (decided 21 March 2017) (Supreme Court); Petrella v. Metro-Goldwyn-Mayer, Inc (decided 19 May 2014) (Supreme Court).

10 Halo Electronics, Inc v. Pulse Electronics, Inc (decided 13 June 2016) (Supreme Court).

11 See 35 U.S.C. Section 315(b).

12 A petitioner can appeal a denial if it is based on the one year 'time-bar' imposed by concurrent district court litigation against the petitioner. Wi-Fi One, LLC v. Broadcom Corp (decided 8 January 2018) (Federal Circuit) (en banc).

13 See 35 U.S.C. Section 315(e).

14 In Re: Aqua Products, Inc (decided 4 October 2017) (Federal Circuit) (en banc).