Posts in District Courts

Although the distinction between inherency in obviousness and anticipation is sometimes blurred, the two concepts are quite different and a claim may be inherently anticipated without being inherently obvious.  This could happen if the missing and unknown limitation were to flow naturally from the teachings of the prior art, and yet not be predictedable… A major difference between having knowledge of the missing limitation versus not having it is that the knowledge can provide the motivation to combine prior art references. 

The Federal Circuit issued a decision in Regeneron Pharmaceuticals, Inc. v. Merus N.V. upholding the determination that the patent owned by biotech firm Regeneron was unenforceable. The decision affirmed a lower court’s finding based on Regeneron’s inequitable conduct during prosecution of the patent at the U.S. Patent and Trademark Office (USPTO), which was the result of the withholding of references from the USPTO that had but-for materiality. The patent, which the Federal Circuit deemed unenforceable, is U.S. Patent No. 8502018, titled Methods of Modifying Eukaryotic Cells.

With all of this money, it seems the efficient infringer lobby has managed to find an unlikely ally in Congress — someone who made his money as an innovator who defended his patents as a patent plaintiff, which apparently makes him a patent troll. At the end of the day, it may not be entirely fair to characterize Congressman Darrell Issa as a patent troll. Instead, he seems more of a swamp creature of the type that President Trump campaigned against. An individual who has fed from those who are actively trying to muck up the U.S. patent system in favor of large, entrenched entities and to the disadvantage of small, innovative patent owners who have previously always been the driving force of innovation and job creation in America.

Why does Mapbox’s viewpoint on patent litigation echo in the halls of Congress given the fact that it doesn’t appear that it has faced abusive patent litigation? In fact, it almost looks like there is no merit to Lee’s statement that “Mapbox has had multiple experiences with patent trolls: non-practicing entities who file meritless lawsuits that are cheaper to settle than to defend.” Mapbox certainly hasn’t had multiple experiences with lawsuits… The one patent case Mapbox has faced as a defendant was filed last December by Shipping & Transit LLC, a company which itself has been very litigious against alleged patent infringement having been listed as a plaintiff in 172 patent suits. The one Shipping & Transit suit filed against Mapbox terminated in 92 days and has a total of nine docket items and the original complaint is all of six pages long.

Judge Conley ordered Apple to pay $506 million in damages to WARF for infringing on patents covering computer processing technologies. WARF’s original complaint, filed in January 2014, involved the assertion of a single patent: U.S. Patent No. 5781752, titled Table Based Data Speculation Circuit for Parallel Processing Computer and issued in July 1998… According to WARF’s original complaint, the development of the technology protected by the ‘752 patent is recognized as a major milestone in the field of computer microprocessor architecture and design. It lead to the election of Dr. Gurindar Sohi, the leader of the lab developing the technology, into the National Academy of Engineering in 2009.

During the second quarter of 2017, a total of 1,138 patent cases were filed at the U.S. district court level, an increase of 18 percent when compared to first quarter filings. However, that uptick in patent suits between the first and second quarters of 2017 repeats a trend which has played out since 2013. Compared to the second quarter of 2016, patent case filings were actually down 7 percent on a year-over-year basis. From the beginning of 2016 through the end of 2017, U.S. district courts have seen some of the lowest levels of patent litigation in district courts on a quarterly basis. Interestingly, the Lex Machina update shows a significant decline in case filings in the Eastern District of Texas (E.D. Tex.) correlating strongly with the Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, a case which restricted the statute on proper venue for patent infringement cases.

In the calculation of design patent infringer profits, two key issues are the definition of the article of manufacture and the methodology for calculating total infringer profits… Depending upon the case, infringer profits may be based on the entire accused product or may be limited to a component of the accused product, but there is no test or guidance at this point for how to determine if the entire product is the article of manufacture or if only a component or certain components comprise the article of manufacture. Therefore, it may be prudent, depending upon the case, to calculate infringer profits based on one or more alternative assumptions as to what the article of manufacture is comprised of in the specific situation. In some cases, the design patent will cover most or all of the product in question but in other cases such as in the Apple case, it will cover only a minor portion of the product.

Issa decried Judge Gilstrap’s “overreach” in denying a motion to transfer venue in a case coming after the U.S. Supreme Court’s decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, a decision which restricted the venue statute for patent infringement cases. “It is, in fact, an act that I find reprehensible by that judge,” Issa said… American Board of Trial Advocates (ABOTA) noted that Issa’s further assertion that Judge Gilstrap was motivated by personal bias to promote community interests “extended beyond a challenge of the legal precedent to a personal attack on Judge Gilstrap and his integrity as a jurist.”

The Ninth Circuit clarified the requirements for pleading and establishing a trademark infringement claim under a reverse confusion theory in Marketquest Group v. BIC, Case No. 15-55755 (9th Cir. July 7, 2017). The court relieved plaintiffs from having to specifically plead reverse confusion if it is compatible with the theory of infringement alleged in the complaint, and supported a more malleable standard for proving intent in reverse confusion cases. The court also held that good faith is an element—not just a factor—of a fair use defense, and that the fair use defense may only be raised after a likelihood of confusion is established. Marketquest further reinforces courts’ reluctance to decide trademark cases on summary judgment, and makes it more difficult for defendants to dispose of reverse confusion claims through pretrial motions. 

At this year’s IDEA World, TRX’s booth is very close to Aktiv Solutions, a distributor of fitness equipment. The two are only separated by one booth in between them run by the mind-body fitness firm Merrithew. Among the products distributed by Aktiv include a functional training ecosystem created by Gym Rax, a developer of modular storage and suspension solutions for fitness facilities. And Gym Rax recently filed a lawsuit alleging that TRX is committing trademark infringement. On June 12th of this year, Gym Rax International filed a complaint for federal trademark infringement against Fitness Anywhere LLC, doing business as TRX, in the Central District of California.

Chicago-based chewing gum company Wm. Wrigley Jr. Company filed a trademark infringement suit against e-cigarette seller Chi-Town Vapers LLC of Bensenville, IL. The suit targets Chi-Town for marketing certain e-cigarette materials which bear a striking resemblance to chewing gum products manufactured by Wrigley. The case is filed in the U.S. District Court for the Northern District of Illinois (N.D. Ill.).

At least $17 million. That is what my Bunch O Balloons patent has cost so far. It could grow to $50 million. Yes, we are talking about water balloons, not smartphones. How can this be? Because the patent grant issued by the U.S. Patent and Trademark Office means nothing to infringers like Telebrands and Walmart. They simply ignore the patent and rush to take over the market with their knock-offs (Balloon Bonanza in 2015, Battle Balloons in 2016, and Easy Einstein Balloons in 2017). Then they use those revenues to hire attorneys and experts to say the patent is invalid. If the patent owner lacks deep pockets or good lawyers, his patent will not survive. If he does have access to infinite funds, he has about a 5 percent chance of survival thanks to the America Invents Act (AIA) and the USPTO’s implementation of the Patent Trial and Appeal Board (PTAB).

Cincinnati, OH-based grocery retailer Kroger Company (NYSE:KR) recently filed a trademark infringement suit against German-based discount supermarket chain Lidl over a private food label. The suit, filed in the U.S. District Court for the Eastern District of Virginia (E.D. Va.), alleges both trademark and service mark infringement and is seeking to have a related U.S. trademark application filed by Lidl cancelled. The suit comes just weeks after Lidl opened its first locations in the United States.

Irish biopharmaceutical firm Horizon Pharma announced that two of its patents covering Vimovo, a pain relief treatment for arthritis patients, had their validity upheld in a patent infringement case filed in the District of New Jersey (D.N.J.). The decision allows Horizon Pharma to move forward with its argument that at least one of the two upheld patents would be infringed by generic versions of Vimovo being developed by Indian drugmakers Lupin Limited and Dr. Reddy’s Laboratories as well as American generic drugmaker Mylan.