Making do on its promise to “use every tool” in its arsenal to regulate artificial intelligence (‘AI”), the Federal Trade Commission (“FTC”) unanimously approved a resolution on November 21, 2023 authorizing the use of compulsory process in non-public investigations involving AI-related products and services.
Litigation
Duty of Candor Continues Before the PTAB or Does it?
By Fangli Chen & Lingyun Jia on
In an unprecedented PTAB decision involving Spectrum Solutions LLC (“Spectrum”) (Petitioner) and Longhorn Vaccines & Diagnostics (“Longhorn”) (Patent Owner), the Board found all five challenged patents invalid and imposed sanction against patent owner Longhorn for failure to meet the duty of candor and fair dealing. The board determined that Longhorn selectively disclosed testing results to support its claim construction and misled its technical expert with incomplete laboratory data, thereby failed to meet its duty of candor and fair dealing in its actions before the Board. The claims and substitute claims in all five patents asserted by Longhorn were unpatentable due to its sanctionable misconduct. Longhorn was also ordered to provide Spectrum compensatory expenses including attorney fees. On one hand, it is a reminder that duty of candor is a continuing obligation that cannot be ignored even during the IPR proceeding. On the other hand, it does raise the question whether the PTAB has the authority to invalidate a patent for misconduct.
Montana Supreme Court Finds Minimum Contacts in Social Media Posts Targeting State Residents
By Shiloh Rainwater on
Posting on social media about businesses located in another state could give rise to personal jurisdiction in that state, according to a recent landmark opinion by a sharply divided Montana Supreme Court. In Groo v. Montana Eleventh Judicial District Court, the Court considered whether several Facebook posts made by Melissa Groo, a New York-based wildlife-photography ethicist, concerning Triple D Game Farm, a wildlife-photography farm in Montana, supported personal jurisdiction in an action by Triple D against Groo in Montana state court for tortious interference with contractual relations and prospective economic advantage. In the posts, Groo had tagged individuals and companies doing business with Triple D, three of whom resided in Montana, and encouraged them to cancel their business with the company because of its alleged mistreatment of animals. Four Justices found the posts sufficient to exercise specific personal jurisdiction over Groo; three dissented.
Alleged Theft of Drug Pricing Trade Secrets Could Cost Both Victim and Thief
Life Sciences is an area ripe for trade secrets misappropriation litigation. In recent news, Merz Pharmaceuticals, LLC filed a lawsuit under the North Carolina Uniform Trade Secrets Act alleging that its former director of federal accounts, Andrew Thomas, stole trade secrets relating to Merz’s flagship botulinum toxin drug Xeomin®. Those secrets purportedly…
Ozempic Gains Popularity, Its Maker Loses First Legal Fight
By Genesis Sanchez Tavarez on
With Hollywood celebrities speaking out both in favor of and against the use of drugs like Ozempic and Wegovy for weight loss, it was only a matter of time before demand outpaced supply. Although most might believe that increased demand is a good problem to have, a recent case involving Ozempic shows that pharmaceutical companies with popular drugs might face increased competition, without the ability to obtain legal remedies against their competitors.
Scope of Issued Patents May be Limited by Prosecution Estoppel Created in Child Cases
By Nicholas C. Prairie on
Cell therapy products in the U.S. are estimated to be worth approximately $4.5 billion currently and expected to grow to over $30 billion in the next ten years. As market value increases litigation is bound to heat up.
Recently, Fate Therapeutics and the Whitehead Institute sued Shoreline Biosciences in the Southern District of California for allegedly infringing six patents directed to composition and methods relating to induced pluripotent stem cells (iPSCs) directly under 35 U.S.C. §§ 271(a) and (g), and for inducing infringement. Fate’s infringement theories included both literal infringement and infringement under the Doctrine of Equivalents. The court granted summary judgment of noninfringement to Shoreline for all asserted claims.
Be Smarter Than a Lizard: Overcoming Reptile Theory in the Discovery Phase
By Chelsea Samuels on
It’s no secret: plaintiffs’ attorneys want to win big. Using reptile theory, plaintiffs (and their counsel) are enjoying gargantuan jury verdicts. Through thoughtful and strategic lawyering, however, the harsh effects of reptile theory can be avoided.
Amazon: The Prime Target in FTC Crackdown
By Portia Proctor on
On October 18, 2023, Amazon filed a motion to dismiss the Federal Trade Commission’s lawsuit alleging that the company deceived millions of consumers into nonconsensual Prime membership enrollment and thwarted members’ attempts to cancel their Prime subscriptions. In a heavily redacted complaint filed on June 21, 2023 in the Western District of Washington, the FTC charges Amazon with using “manipulative, coercive, or deceptive user-interface designs known as ‘dark patterns’ to trick consumers into enrolling in automatically-renewing Prime subscriptions,” in violation of the FTC Act and the Restore Online Shoppers’ Confidence Act (“ROSCA”). The FTC describes the Amazon platform as bombarding customers with options to sign up for Prime and obscuring options to shop without Prime, making non-Prime alternatives difficult for consumers to locate. In some cases, the FTC alleges, the button to complete a transaction did not clearly state the shopper was also agreeing to enroll in a recurring Prime subscription.