Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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In Re Google Technology Holdings LLC

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1828

Opinion Date: November 13, 2020

Judge: Raymond T. Chen

Areas of Law: Intellectual Property, Patents

Google’s 765 application relates to “distributed caching for video-on-demand systems, and in particular to a method and apparatus for transferring content within such video-on-demand systems.” The proposed invention presents a solution for determining how to stream content to set-top boxes and where to store said content among the content servers, be it at one or more video server offices or smaller, partial-content libraries at local servers (video home offices). The examiner rejected certain claims under 35 U.S.C. 103, as obvious in view of prior art. The Federal Circuit affirmed, declining to address certain of Google’s arguments as waived.

SIPCO, LLC v. Emerson Electric Co.

Court: US Court of Appeals for the Federal Circuit

Docket: 18-1635

Opinion Date: November 17, 2020

Judge: Raymond T. Chen

Areas of Law: Intellectual Property, Patents

SIPCO’s patent explains communicating information from a previously unconnected, remote device to a central location by setting up a two-step communication path through intermediate nodes to use the nodes’ already-provided link (e.g., a public-switched telephone network) to the central location. The remote device communicates wirelessly to an intermediate node. The Patent Board found that the patent was not exempt from covered business method (CBM) review under the “technological invention” exception and found five claims patent-ineligible under 35 U.S.C. 101 and unpatentable for obviousness under section 103. The Federal Circuit vacated. The Supreme Court remanded for further consideration in light of the Court’s 2020 “Thryv” decision. The Federal Circuit then affirmed the Board’s obviousness determination and did not address the Board’s patent-ineligibility decision under section 101. The Thryv decision makes clear that the threshold determination that the patent qualifies for CBM review is non-appealable under 35 U.S.C. 324(e); SIPCO’s challenge is nothing more than a contention that the agency should have refused to institute CBM review

Vectura Ltd. v. GlaxoSmithKline, LLC

Court: US Court of Appeals for the Federal Circuit

Docket: 20-1054

Opinion Date: November 19, 2020

Judge: William Curtis Bryson

Areas of Law: Drugs & Biotech, Intellectual Property, Patents

Vectura sued GSK in 2016, alleging direct infringement of claim 3 of the 991 patent, which concerns the production of “composite active particles” for use in pulmonary administration, such as in dry-powder inhalers. The composite active particles described in the patent consist of additive material that is adhered to particles of the active ingredient. The active ingredient produces the desired chemical or biological effect, while the additive particles promote the dispersion and delivery of the active ingredient into the lungs when the inhaler is activated. The Federal Circuit affirmed holdings that the patent was infringed and not invalid. The court rejected arguments that Vectura failed to present substantial evidence that the accused inhalers use additive material that “promotes the dispersion” of the active material, that the district court’s construction of the term “composite active particles” was erroneous, that there were flaws in the calculation of the royalty proposed by Vectura’s damages expert, and that Vectura made prejudicial references to GSK’s sales and advanced an improper “pennies on the dollar” argument in comparing Vectura’s royalty request to GSK’s sales.

Whitewater West Industries Ltd. v. Alleshouse

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1852

Opinion Date: November 19, 2020

Judge: Richard Gary Taranto

Areas of Law: Contracts, Intellectual Property, Labor & Employment Law, Patents

Alleshouse and Yeh are named as the inventors on the 685 and 189 patents, which claim water-park attractions that individuals may ride as if surfing, and on the 433 patent, which claims nozzle configurations for regulating water flow in such attractions. Pacific, the company Alleshouse and Yeh formed to develop and market such attractions, is the assignee of the patents. Whitewater is the successor of Wave, which employed Alleshouse until just before he went into business with Yeh and the patented inventions were conceived. Whitewater sued Alleshouse, Yeh, and Pacific, claiming that Alleshouse had to assign each of the patents to Whitewater, as Wave’s successor, under the terms of Alleshouse’s employment contract with Wave. Whitewater also claimed that Yeh, who had not been employed by Whitewater or its predecessors and therefore was not under any alleged assignment duty, was improperly listed as an inventor on each of the patents. The district court held that Alleshouse breached the employment agreement, so Whitewater was entitled to an assignment of the patent interests, and Yeh was improperly joined as an inventor. The Federal Circuit reversed, The contract’s assignment provision is void under California law, (Labor Code 2870, 2872; Business and Professions Code 16600), so Whitewater lacks standing to contest inventorship.