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Intellectual Property Report: September 2018

Firm Thought Leadership

Protect Your Processes: Application of On-Sale Bar to Method Claims
Lindsay Volpenhein Cutié
With the Supreme Court’s recent grant of certiorari in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the on-sale bar to patentability is back in the spotlight. The on-sale bar traditionally applies if two conditions are met: (1) the product is the subject of a commercial offer for sale, and (2) the invention is ready for patenting. The sale or offer for sale of a product, device, or apparatus potentially giving rise to an on-sale bar is usually a straightforward event; a tangible item is transferred from the seller to the buyer. But what about processes and methods, which are a series of acts or steps, that are not transferred in the same sense as a tangible item? This article explores the application of the 35 U.S.C. § 102 on-sale bar to method claims.
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Baker Botts Special Counsel, Tammy Rhodes, to Chair HIPLA Fall Institute
The Houston Intellectual Property Law Association’s 2018 Annual Fall Institute will be held September 27-29 in Galveston, Texas. HIPLA has put on the Fall Institute in association with the University of Houston for the past 34 years. Baker Botts will be sponsoring the Institute and Tammy Rhodes, Special Counsel, will serve as the event Chair. This year's keynote speaker is Dennis Crouch, associate professor of law at the University of Missouri School of Law, and founder of the patent law blog, Patently-O. Click here to register or learn more, and we look forward to seeing you there!

Supreme Court Set to Tackle 'Secret' Patented Sales Under AIA
Robert Maier
In June, the U.S. Supreme Court agreed to hear the case of Helsinn Healthcare v. Teva Pharmaceuticals USA, in which the court will address the scope and impact of the “on sale bar” of the patent statute as it applies under the America Invents Act (AIA). The decision could have a significant impact on patenting, R&D and commercial strategy for U.S. operating companies that typically seek patent protection for their products and services.
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*This article first appeared in The New York Law Journal in August 2018.

Baker Botts’ Corporate Practice Breakfast Sponsorship of the AIPLA Annual Meeting
In conjunction with the AIPLA Corporate Practice Committee, Baker Botts is proud to participate in AIPLA’s annual meeting as sponsors of the corporate practice breakfast on Thursday, October 25. AIPLA’s annual meeting will be held this year on October 25-27 in Washington D.C. We hope you can join us for a topical presentation followed by discussions with corporate counsel. Click here to register or learn more.

Colorado Moves Into the Data Privacy Spotlight with Data Protection In Effect September 1, 2018
Cynthia J. Cole, Matthew R. Kempf
California is not the only state that wants to govern the data protection and security of its constituents. Colorado has also come out with a strong, bipartisan law that puts it on the map of GDPR-like state laws and Colorado is already in application.
On May 29, 2018, just days after the EU’s General Data Protection Regulation (“GDPR”) went into effect, the governor of Colorado signed into law HB 18-1128 (the “Bill”) “concerning strengthening protections for consumer data privacy.” The Bill took effect September 1, 2018, more than a year before California’s law, which goes into effect January 1, 2020 and which has already been revised since passing in June 2018. The Colorado Legislature unanimously passed the Bill, signifying a bipartisan focus on data security and consumer protection. Though not truly centered on the precept of data privacy (i.e., the collection, use, and sharing of information), the Bill provides additional consumer protections before and after potential data breaches. The changes bolster the state’s ability to protect the Personal Information of its residents but could place heavy burdens on small business not already compliant with other U.S. data security laws.
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