Posts in District Courts

On November 2, 2015, San Francisco-based Fitbit Inc. filed a Section 337 complaint with the International Trade Commission (ITC) against AliphCom (d/b/a Jawbone) and BodyMedia, Inc. (Investigation No. ITC-337-3096). In a parallel proceeding in the U.S. District Court for the District of Delaware, Case No. 1:15-CV-00990, Fitbit alleged infringement of three patents assigned to Fitbit—namely, U.S. Patent Nos. 8,920,332 (titled Wearable Heart Rate Monitor); 8,868,377 (titled Portable Monitoring Devices and Methods of Operating Same); and 9,089,760 (titled System and Method for Activating a Device Based on a Record of Physical Activity). According to the district court complaint, Jawbone’s products associated with components of its UP series of trackers indirectly infringe the patents-at-issue. Fitbit hopes that it will be successful in preventing the import and sale in America of wearable activity tracking devices sold by Jawbone by requesting the ITC to issue a limited exclusion order and a cease and desist order.

A case currently pending before the Federal Circuit is anticipated to provide greater guidance into the answer to this question, namely, how district courts should determine whether a claim is directed to an abstract idea. The case, McRo, Inc. v. Bandai Namco Games America, No. 2015-1080, recently heard oral argument on December 11, 2015. The panel’s questioning indicated that its anticipated decision may provide greater insight into how district courts are to determine whether a claim is, in fact, directed to an abstract idea. The patents are directed to automatic three-dimensional lip-synchronization for animated characters. Whereas prior art lip-synchronization required manually synchronizing an animated character’s lips and facial expressions to specific phonemes, the patents are directed to rules for automating that process.

Patent risk solutions provider RPX yesterday released its 2015 NPE Activity: Highlights report, which offers a first look at trends in patent litigation activity for 2015. According to RPX, NPE litigation activity rebounded in 2015 following what now appears to have been a slowdown in the latter half of 2014. The Eastern District of Texas also continues to dominate as the venue of choice for NPEs, with NPEs suing more defendants there in 2015 than in any year since 2009.

On July 8, in In re Cuozzo, the CAFC denied en banc review of a prior panel decision that confirms the PTAB can use a different standard for interpreting claims than a district court. The patent owner in In re Cuozzo filed a Petition for a Writ of Certiorari to the Supreme Court on October 6, 2015. The response was due on November 9, 2015. If the Supreme Court takes up the issue, it could decide contrary to the current Federal Circuit precedent. It is also possible that Congress could change the standard for claim construction that applies to post-grant proceedings through legislation.

Employers often assume that they have the same weapons in their arsenal to prevent theft of virtual trade secrets as they have against other types of loss. As the prosecution of Sergey Aleynikov in Federal and New York courts showed, however, that simply isn’t true. Even though juries in both courts found him guilty of downloading confidential computer code from his employer, judges ultimately found that the laws under which he was prosecuted did not cover the acts he committed. A careful employer should therefore make sure it puts precautions in place that prevent theft of computer code, rather than relying on the threat of criminal prosecution.

Aleynikov was a computer programmer employed by Goldman Sachs to write high-frequency trading code. In 2009, he accepted a job offer to join a potential competitor, where he would create a new high-frequency trading platform from the ground up. Before he left Goldman, however, he sent portions of Goldman’s high frequency trading code to a German server for his own future use. After Goldman found out, it went to the FBI; Aleynikov was then arrested on a flight home from a visit to Chicago. With that arrest began his circuitous journey through the U.S. legal system, governed by two different sovereigns and under two different legal regimes.

Mark Towle owns Gotham Garage, which manufactures and sells replicas of automobiles featured in famous motion pictures and television programs. Gotham Garage specifically sold fully constructed cars as well as kits which allow customers to modify their car to look like the Batmobile, and advertised its replicas as “Batmobiles” while marketing its business via the domain name batmobilereplicas.com. In May 2011, DC Comics filed suit against Towle for copyright infringement, trademark infringement and unfair competition arising out of Towle’s marketing and sale of Batmobile replicas. Towle countered that the Batmobile – at least as it appeared in the famous 1966 television series and the 1989 motion picture, the main inspirations for Gotham Garage’s designs – was not subject to copyright protection.

The United States District Court for the Southern District of Indiana ruled in favor of Eli Lilly (NASDAQ: LLY), issuing a final judgment in the Hatch-Waxman infringement litigation relating to U.S. Patent No. 7,772,209. This matter arose as the result of the defendants’ filing of Abbreviated New Drug Applications (ANDAs) with the Food and Drug Administration (FDA). The ‘209 patent, covering a method of use, protects the co-administration of pemetrexed disodium with two nutrients – folic acid and vitamin B12, which protects against the side effects of the drug Alimta®. The district court found direct infringement by administering physicians under § 271(a), and thus inducement of infringement by Defendants under § 271(b).

Last Wednesday the Eastern District of Virginia issued its opinion and order on cross-motions for summary judgment in Pro-Football v. Blackhorse, the case in which the National Football League (NFL) appealed the Trademark Trial and Appeal Board’s (TTAB) precedential cancellation of the REDSKINS trademark on Lanham Act 2(a) disparagement grounds. The long and short of it is, it didn’t turn out well for the Redskins, who will almost certainly appeal the decision, which affirmed the TTAB’s 2014 cancellation.

After two and a half years of hard-fought litigation, Kroy IP Holdings has been defeated in a patent case brought against grocery retailer Safeway, Inc. In two comprehensive opinions issued May 29 by Judge William C. Bryson—a senior Federal Circuit judge sitting by designation in the Eastern District of Texas—the court granted Safeway’s motions for summary judgment and invalidated Kroy’s U.S. Patent No. 7,054,830 on several grounds. Not only did Judge Bryson find the ‘830 patent to be abstract and ineligible for patent protection, he also found the patent to be anticipated and obvious in view of Safeway’s cited prior art. Judge Bryson entered judgment for Safeway the same day, and ruled that as the prevailing party, Safeway is entitled to its costs.

At the end of a three-hour long hearing held by the U.S. Senate Committee on the Judiciary this Thursday, June 4th, S.1137, the proposed legislation known as the PATENT Act, was approved to move to the floor of the United States Senate by a 16-4 vote of the Senate committee. Proponents of the bill lauded the bipartisan support which brought the bill committee approval. Interestingly, a small but vocal bipartisan minority has developed, a couple of whom have pledged to continue debate aspects of this legislation which they fear will pose a threat to American innovation.

Given the collective bias of the witness panel, it is hardly surprising that on the issue of the PATENT Act there was a clear, positive consensus in the witness panel. But there is no such consensus within the industry and those voices were brought to the table by Sens. Dick Durbin (D-IL) and Chris Coons (D-DE), two of the sponsors of the STRONG Patents Act that has been debated in Senate committee as recently as March. Durbin, who pointed out that “this panel is divided between people who love the bill and people who really love the bill,” read part of a strongly worded letter submitted by the National Venture Capital Association who is worried that the PATENT Act, as worded currently, could hurt investment.

Tesla’s Powerwall batteries will come in two varieties: one a 10 kilowatt-hour (kWh) version for a weekly cycle unit designed for backup applications, the other a 7 kWh unit for everyday use. The batteries can be installed in groups of up to nine, providing a maximum of 90 kWh hours of backup energy (or 63 kWh of energy available daily). The dimensions of the Powerwall battery are about four feet tall and nearly three feet wide; its slender 7.1 inches of depth and sleek design gives it a form which fits neatly on most walls, inside or out. It can be installed in an afternoon and does not need major home rewiring. The 10 kWh model costs $3,500 ($3,000 for the 7 kWh version) although a homeowner must pay for installation and an inverter if the property includes solar panels.

Amazon (NASDAQ:AMZN) has just cleared up the picture over its cloud computing business, Amazon Web Services (AWS) and the company’s forecast looks sunny. The corporation recently announced its first quarter earnings for 2015 and financial pundits were flabbergasted to see just how profitable AWS has been for Amazon, earning $5.16 billion in revenue over a recent 12-month period and growing…

Two of the biggest post-production/3D-conversion companies are preparing for battle in a patent infringement suit that is sure to create enemies and allies in the world of film post-production. Prime Focus Creative Services Canada filed a patent infringement suit against Legend3D in the U.S. District Court for the Central District of California. In the March 30, 2015 complaint, Prime Focus World requested a jury trial, an injunction banning Legend3D from performing the patented process, a finding of willful infringement and unspecified monetary damages. Each company has some of the biggest blockbusters in recent memory.

In 2014 there were 1,070 fewer patent lawsuits filed than during 2013. Furthermore, the number of patent cases filed in 2014 was lower than the number of cases filed in 2012 by some 433 cases. Therefore, the stories of continued run away litigation seem to be greatly exaggerated. Given the dramatic decrease in patent litigation it seems entirely premature for Congress to be considering additional patent reform at this early stage.