Quarterly Journal Volume 54, Issue 1 February 2026

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The AIPLA Quarterly Journal, a publication of the American Intellectual Property Law Association, is housed at the George Washington University Law School and is edited and managed by an Editorial Board of intellectual property experts and a staff of law students under the direction of the Editor-in-Chief, Professor Joan Schaffner.

The Quarterly Journal is dedicated to presenting materials relating to intellectual property matters and is published four times per year. Editorial Board members (all of whom are lawyers) are selected based upon demonstrated interest and experience, and student staff members are selected from the students of the GWU Law School.

QJ 54.1 - Mending the Fence: Commercial Success & the Blocking Patent Defense in Pharmaceutical Litigation

John Jarosz, Andrea Hugill, Anna Gumen, and Michael Chapman

MENDING THE FENCE: COMMERCIAL SUCCESS & THE BLOCKING PATENT DEFENSE IN PHARMACEUTICAL LITIGATION

Commercial success often is a crucial after-the-fact consideration in litigations assessing whether a patent was nonobvious or not. Its evaluation usually entails assessing whether a patented invention (often, product) has achieved success in the marketplace and whether that success is due to the patented features. In pharmaceutical litigation, the blocking patent defense increasingly has been invoked to counter a patent owner's reliance on a showing of commercial success. The core blocking patent argument is that the success of the patented invention stems not from the at-issue patent being considered for obviousness, but instead from the preclusive effect of an earlier, pre-existing "blocking" patent that prevented third parties from pursuing inventions that led to the at-issue patent. The blocking patent defense appears to be increasingly invoked, and much of the time, has succeeded. Despite its growing use and acceptance, the foundations (or footers) of the blocking patent defense are less solid than they may seem. While commercial success is valuable in a nonobviousness analysis because it is intended to be rooted in real-world evidence, courts often discount this evidence in the context of a blocking patent defense and instead base their conclusions solely on an expert's opinion that blocking may have occurred. This approach risks undervaluing certain patented inventions by relying on speculative assertions that a blocking patent deterred others, even when real world evidence suggests otherwise-namely, that the blocking patent did not block competitive R&D, and that the patented invention succeeded because it was genuinely innovative and nonobvious.

QJ 54.1 - Secret Methods, Public Sales: Reimagining the On-Sale Bar for Process Patents

Sameer Agrawal

The on-sale bar, under 35 U.S.C. §102(a)(1), does not allow an inventor to obtain a patent if they sell their invention more than one year before they file a patent application. This Note explores the Federal Circuit's interpretation in Celanese v. Int’l. Corp. v. ITC , which held that sales of products made using secret processes trigger the on-sale bar, invalidating later process patent claims. The analysis argues that Celanese's interpretation contradicts the America Invents Act's plain language, which requires the "claimed invention" itself to be on sale and "available to the public." The Note considers how the Supreme Court's Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc. decision, which Celanese relies upon, addressed a narrower question and does not support Celanese's broader interpretation. The Note then proposes a specific legislative solution through an amendment to § 102(a)(1) that would create a carveout for method claims when product sales don't disclose the underlying process, thereby promoting international harmonization of international patent standards and creating a more level playing field for small companies that face barriers under the current interpretation.

QJ 54.1 - The Limits of Territoriality: Addressing Unauthorized Use of Foreign Famous Marks in the United States

Layla Huang

THE LIMITS OF TERRITORIALITY: ADDRESSING UNAUTHORIZED USE OF FOREIGN FAMOUS MARKS IN THE UNITED STATES

As technological advances have allowed international travel and global commerce to increase at unprecedented rates, U.S. trademark law is failing to protect consumers. Due to the importance of geographic boundaries for defining and enforcing trademark protections, foreign trademarks face significant challenges to U.S. enforcement despite the increasing exposure of U.S. populations to foreign marks from migration, travel, and the internet. The Lanham Act attempts to provide certain highly recognizable foreign trademarks or “famous marks” with protections beyond their country of origin to prevent consumer deception and dilution of their distinctive qualities. However, its limited guidance on whether the famous mark exception to the territoriality principle is recognized, causing inconsistent rulings in U.S. courts. This note analyzes the intersection of U.S. trademark law, international treaties, and judicial doctrines using exemplary Chinese trademarks to highlight the gaps in foreign trademark protection. Based on this analysis, this Note explains how Congress can combat domestic misappropriation of foreign trademarks and better protect consumer interests by amending the Lanham Act’s definition of relevant marks.

QJ 54.1 - Hidden in Plain Sight: Moral Rights, Cultural Stewardship, & “Destruction” After Kerson

Hannah Kressel-Levinson

This Note uses the Second Circuit’s 2023 decision in Kerson v. Vermont Law School, 79 F.4th 257, as a jumping off point to consider the scope and purpose of the moral rights provision of the United States Copyright Act, the Visual Artists Rights Act (“VARA”). Specifically, this Note addresses VARA’s contours in the context of the responsibility cultural institutions have to the public to preserve, and occasionally wrestle with, creative works. Furthermore, this Note analyzes the Second Circuit’s analysis of “destruction” in Kerson, proposing future modes of analysis that better address the full breadth of an artist’s work. 

Knobbe Martens

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