Posts in IPWatchdog Articles

The Court of Appeals for the Ninth Circuit recently issued an opinion in Skidmore v. Led Zeppelin, which vacated-in-part a judgment out of the Central District of California that Led Zeppelin’s hit classic rock song “Stairway to Heaven” was not substantially similar to “Taurus,” a song written by the late songwriter Randy Wolfe, a member of the band Spirit. The case was remanded back to the district court after the appellate court found that certain instructions given by the district court to the jury were erroneous and prejudicial.

Gamestatix intends to release an ERC-20 token that can be deployed on an Ethereum blockchain. Launched in 2014, this technology makes it possible for Gamestatix to pay in a cryptocurrency that could then be transferred more readily than Bitcoin. The difference between the two is that Bitcoin is only a currency while Ethereum is an application platform through which companies can build new programs. Both use blockchaining technology, but Ethereum’s allows for complex applications in a “smart contract” which can automate certain operations.

In Bennett Regulator Guards, Inc. v. Atlanta Gas Light Co. the Federal Circuit ruled the time-bar for filing a petition for inter partes review in Section 315(b) begins to run as soon as a complaint for infringement is served in district court, regardless of whether the complaint is involuntarily or voluntarily dismissed or is ultimately successful on the merits. There are no exceptions to the statutory time limit for filing a petition for inter partes review in 35 U.S.C. § 315(b).

A claim is entirely without color when it lacks any legal or factual basis.  Because of the relative paucity of § 101 cases between Alice and AlphaCap’s complaint, the law was unsettled.  The Federal Circuit noted that when the applicable law is unsettled, attorneys may not be sanctioned merely for making reasonable arguments for interpreting the law.  Further, the court found that Gutride presented a colorable argument that the claims were analogous to those in DDR Holdings, LLC v. Hotels.com L.P., and therefore patent eligible under § 101.

The Federal Circuit recently issued an opinion in a decades-longbattle over the microcomputer patent applications of Mr. Hyatt, the named inventor on more than 70 issued patents and approximately 400 pending patent applications. The Court ultimately rejected Mr. Hyatt’s challenges to Manual Patent Examining Procedure (“MPEP”) § 1207.04, allowing an examiner to reopen prosecution with a new ground of rejection instead of continuing an already filed appeal.

Bloomberg recently published an article providing data analysis on Chinese patent applications to claim that, while China receives more patent applications than any country, “most are worthless.” If you were trying to usher in a culture change, moving from no patent system just a few decades ago to a thriving and high functioning patent system, you would look to incentivize your own citizens and corporations to file patent applications. That is precisely what China has done and is continuing to do. Thus, the mantra about Chinese patent applications being worthless, or nothing of a concern because they are overwhelmingly only filed in China, completely misses the enormity of the change taking place in China, and why it bodes well for the Chinese moving forward.

After nine years of costly legal proceedings the United States Patent Office denied the patent by misapplying the law.  The Court of Appeals for the Federal Circuit rubberstamped the Patent Office and issued an evasive non-precedential opinion—meaning this ruling does not apply to other cases.  The case is now appealed to the Supreme Court of the United States. While I am frustrated with the Patent Office, and the Federal Circuit, the real problem is that the U.S. Supreme Court has given conflicting guidance on patent eligibility despite the clear and unambiguous terms of § 101.

Since the Federal Circuit’s decision in Aqua Products, Inc. v. Matal confirmed that the burden of persuasion on a the patentability of amended claims in a motion to amend in an inter partes review proceeding (and presumably other post issuance PTAB proceedings) is placed on the petitioner, the theoretical rationale for Section 282(a)’s presumption of validity is no longer present for such amended claims.  872 F.3d 1290 (Fed. Cir. 2017) (en banc).  In particular, there is no government agency that is tasked with performing the inquisitorial examination that gave rise to the original presumption.  How can there be a presumption that the government agent charged with examining the patent claims did his or her job, when there is no such person assigned to perform that job?

Out of the 230 Orange Book patents challenged in IPR proceedings, 90.4% (208) of these patents were also challenged in Hatch-Waxman litigation perhaps due to the lucrative 180-day exclusivity incentive available to the first generic manufacturer to file a paragraph IV challenge when the Orange Book drug patent is successfully invalidated in a subsequent district court proceeding. Therefore, the IPR process has provided generic manufacturers a dual track option for challenging Orange Book patents by initiating Hatch-Waxman litigation and also pursuing IPRs. Overall, because the rate of settlement in IPRs is much lower than in Hatch-Waxman litigation, both generic manufacturers and patent owners obtain more favorable final decisions in IPRs as compared to their Hatch-Waxman litigation outcomes.

The patent bar exam is a multiple-choice examination made up of 100 questions. You will be given 3 hours to complete the first 50 questions and another 3 hours to complete the second 50 questions. The exam is on-demand and can be taken any time. The patent bar exam has recently been updated effective August 16, 2018, and the exam can be expected to be updated every year at least once. Thus, the patent bar exam has become a moving target. While it does not wildly shift overnight, or change in unannounced ways, gone are the days the exam would remain the same for many years.

The bill would create a new title within California Civil Code named Security of Connected Devices. The first part of this title would require a manufacturer of a connected device, defined as any object capable of connecting to the Internet and assigned either an Internet protocol address or a Bluetooth address, to equip the device with reasonable security features appropriate to the nature and function of the device, appropriate to the information it may collect or transmit and designed to protect both the device and the information it contains from unauthorized access.

Capella Photonics, Inc. has filed a petition for certiorari arguing that the Federal Circuit’s practice of issuing judgments without opinion pursuant to Federal Circuit Rule 36 in appeals from the Patent Trial and Appeal Board violates 35 U.S.C. § 144, which provides that the Federal Circuit “shall issue . . . its mandate and opinion” to the PTO in such appeals. 

On Monday, September 25th, Zephyr Cove, NV-based patent owner VirnetX Holding Corporation filed a Form 8-K with the U.S. Securities and Exchange Commission (SEC) regarding an agreement between that firm and Cupertino, CA-based consumer electronics giant Apple on costs and prejudgment interest related to the ongoing patent infringement proceedings between the two companies. A press release attached to the Form 8-K indicates that VirnetX and Apple agree to add costs and prejudgment interest of $93.4 million to the $502.6 million patent infringement verdict awarded to VirnetX in district court.

JTEKT Corp. v. GKN Automotive Ltd., No. 2017-1828 (Fed. Cir. 2018) raises the important question of whether the Court of Appeals for the Federal Circuit can refuse to hear an appeal by a non-defendant petitioner from an adverse final written decision in an inter partes review (“IPR”) proceeding, on the basis of a lack of a patent-inflicted injury-in-fact, when Congress has statutorily created the right for “dissatisfied” parties to appeal to the Federal Circuit.

To base its damages theory on the entire market value rule, Power Integrations bore the burden of proving “the patented feature is the sole driver of customer demand or substantially creates the value of the component parts.” Both parties, however, agreed that the accused products contained other valuable non-infringing features. Nevertheless, Power Integrations presented no evidence about the effect of these other non-infringing features on consumer demand or product value. Accordingly, the Court held that the evidence submitted by Power Integrations was insufficient to invoke the entire market value rule, and vacated the award of damages, and remanded for a new trial.