Hashish Patent Litigation Replace: A Certificates of Correction Permits the 911 Patent to Survive One other Problem

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Now we have been carefully monitoring the primary ever cannabis patent infringement case, between plaintiff United Hashish Company (“UCANN”) and defendant Pure Hemp Collective, Inc. (“Pure Hemp”). UCANN owns the “911 Patent,” which typically covers liquid cannabinol formulations of a purified CBD and/or THC better than 95%. For the previous 12 months, UCANN has fought to safe a everlasting injunction towards Pure Hemp from infringing on its patent, in addition to damages and attorneys’ charges. For our earlier protection, see  right here, right here and right here.

Issues haven’t been going effectively for Pure Hemp, and it not too long ago struck out once more. Final month, Pure Hemp had filed a Movement for Go away to Transient the Invalidity of the Certificates of Correction for the 911 Patent. UCANN filed a Response in Opposition on Could 3, 2019 and Pure Hemp filed its Reply on Could 22, 2019. The Justice of the Peace Choose, Nina Y. Wang, issued her Order denying Pure Hemp’s Movement for Go away the identical day.

As related right here, recall in our earlier publish that in Pure Hemp’s Movement for Partial Abstract Judgment (the “MPSJ”), Pure Hemp had claimed that Declare 31 of the 911 Patent is invalid as a result of “it’s a a number of dependent declare that improperly depends upon one other a number of dependent declare.” Primarily, Pure Hemp had argued that Declare 31 of the 911 Patent incorrectly covers: “The formulation of any one of many continuing claims, whereby the formulation is infused in a medium chain triglyceride (MCT).” In response to this argument, UCANN had filed a Movement to Right Declare 313 of the 911 Patent, looking for to switch Declare 31 by changing “continuing claims” with “previous claims,” arguing that the previous building is just an error the court docket might appropriate.

The Courtroom denied UCANN’s Movement to Right on February 19, 2019, discovering that the error, if any, can be extra appropriately addressed by proceedings earlier than the USPTO. Three days later, UCANN did file a Request for Certificates of Correction with the USPTO, indicating it had made an “inadvertent typographical error” and arguing that the correction didn’t “contain new matter or require reexamination.”

“The usual for issuing a certificates of correction is specified by 35 U.S.C. 255:Each time a mistake of a clerical or typographical nature, or of minor character, which was not the fault of the Patent and Trademark Workplace, seems in a patent and a displaying has been made that such mistake occurred in good religion, the Director might, upon fee of the required payment, challenge a certificates of correction, if the correction doesn’t contain such modifications within the patent as would represent new matter or would require reexamination. Such patent, along with the certificates, shall have the identical impact and operation in legislation on the trial of actions for causes thereafter arising as if the identical had been initially issued in such corrected type.”

On April 17, 2019, UCANN filed a discover indicating that the USPTO had agreed and issued a Certificates of Correction on April 9, 2019, amending “continuing” to “previous” in Declare 31 of the 911 Patent. This was comparatively fast, cost-effective approach that resulted in an enormous win for UCANN – that very same day, Choose Martinez denied Defendant’s MPSJ. In his Order, Choose Martinez famous that UCANN had obtained the right Certificates of Correction and subsequently, Pure Hemp’s argument that Declare 31 was invalid as a result of it didn’t comprise a reference to a earlier declare was moot.

Pure Hemp’s newest Movement for Go away argued that the Certificates of Correction is a broadening modification, which isn’t correct, and that it didn’t have the chance to transient the problem as a part of its MPSJ as a result of timing of the issuance of the Certificates. Pure Hemp additionally argued that the issuance of whether or not the Certificates of Correction is a broadening modification is a matter of declare building, and that it must be permitted to transient the problem along side the identical.

In response, UCANN made two easy arguments: (1) Pure Hemp’s movement violates the bounds on the variety of motions for abstract judgment a celebration might file (on this case, one), and (2) the Patent Native Guidelines restrict declare building briefing to resolving problems with declare interpretation. Choose Wang agreed and denied Pure Hemp’s Movement for Go away in its entirety. This simply goes to point out: generally, actually advanced points are resolved on actually easy procedural grounds.

Now that the validity of Declare 31 has been put to relaxation, the events have proceeded to the declare building section of all patent litigation (the topic of a future publish!).  It’ll undoubtedly embrace extra advanced arguments, so keep tuned.

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