Posts in Litigation

How the Unified Patent Court Will Shake Up the Landscape of Patent Courts Worldwide

The Unified Patent Court (UPC) plans to open for business on April 1, 2023. Its likely place among the world’s preeminent patent courts can be inferred, at least in part, from the territorial and subject matter jurisdiction of this novel court. In Europe, several courts enjoy established reputations for patent litigation, notably in France, Germany, the United Kingdom, Holland and Italy. These courts, as well as the European Patent Office (EPO), which also enjoys a strong reputation for its case law, are the preferred venues of plaintiffs for enforcing or seeking to invalidate European patents. Due to the size and economic weight of the region, the importance of European patents, and the bench of experienced patent judges and practitioners, Europe will without doubt continue to attract a substantial share of patent litigation worldwide.

What Vifor v. CCI Could Mean for the Intersection of Patent and Antitrust Laws in India

Patent laws and antitrust laws (known as competition laws or anti-competitive laws in other jurisdictions), may seem antithetical to each other at first glance. Antitrust law is concerned with ensuring the existence of a free and fair market by promoting fair competition practices and discouraging monopolies, which often stagnate business innovation. In contrast, patent law grants inventors a limited period of exclusivity in exchange for disclosing their invention- i.e., a monopoly of sorts. These opposing objectives may not, however, be quite as conflicting as they initially appear to be. Both of these laws aim to balance individual interests with the greater public interest. In the July 2022 case of Vifor International Ltd. v. CCI, we see this intersection of patent and competition laws in India. The case highlights how these laws can exist in tandem and provide relief to the aggrieved.

PTAB Reverses Course in Code200 IPR Under Director’s ‘Compelling Evidence’ Memo

Last week, the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB) decided to institute inter partes review (IPR) in Code200, UAB v. Bright Data, Ltd., IPR2022-00861, following a sua sponte Director Review decision ordering the Board to reconsider its original ruling denying institution. USPTO Director Kathi Vidal issued a precedential sua sponte Director Review Decision in the case in August, clarifying the application of Gen. Plastic Indus. Co. v. Canon Kabushiki Kaisha, IPR2016-01357, Paper 19 (PTAB Sept. 6, 2017) when denying decisions to institute IPRs.

Patent Filings Roundup: Light Week in District Court Buoyed by IV-Selloff Assertions; Vidal Grants Second Sua Sponte Review of Second Institution in OpenSky/VLSI Case

This week saw 26 Patent Trial and Appeal Board (PTAB) filings (all inter partes reviews [IPRs]) and just 28 new district court complaints—and notably and unusually, no new IP Edge filings. Most of the filings were related to three entities, the now-sprawling Bell Semiconductor campaign added a slew of new defendants, and Cedar Lane and Buffalo Patents, both campaigns comprised entirely of old Intellectual Ventures (IV) patents (both almost certainly transferred under IV’s late-stage low-cost time-limited backend deal structure). There was one (non-Fintiv) denial at the Board and a few IV patents were challenged directly by Honda; some pharmaceutical challenges were filed, but otherwise, it was a relatively quiet week in new filings, particularly in the district court (it’s the first week in as long as I can remember when there didn’t appear to be a single IP Edge filing, which certainly contributes to the lull).

Fixing the PTAB: ‘Why Are We Doing It This Way?’

Earlier this week, IPWatchdog hosted a webinar sponsored by the Innovation Alliance, now available to view for free here, in which panelists drew a roadmap for fixing the U.S. Patent and Trademark Office’s (USPTO’s) Patent Trial and Appeal Board (PTAB). Ultimately, they said: 1) thoughtfully exercise discretion to deny the inter partes review (IPR) petitions to ensure quiet title, 2) apply the clear and convincing standard of proof for invalidity to match the district court standard, 3) change the joinder rule so that time-barred parties aren’t allowed to join IPRs, 4) create a standing requirement to bring IPRs to end gaming by uninterested third-parties and 5) increase transparency at the PTAB— for example, with respect to panel changes and transfers. The participants who delivered these solutions were Dr. Marian Underweiser, an Intellectual Property Professional and former IBM Executive, Hon. Kathleen O’Malley (CAFC, ret.), currently Of Counsel with Irell & Manella, Jayson Sohi, the Director of IP Strategy at Netlist, and Gene Quinn, President & CEO of IPWatchdog, Inc.

Interactive Wearables is Not the 101 Case That You’ve Been Waiting For

On October 3, the U.S. Supreme Court once again requested the views of the Solicitor General (SG) in a Section 101 case, Interactive Wearables v. Polar Electric Oy. Last summer, there was excitement in the patent community when the SG, whose advice the Court usually follows, recommended granting review in American Axle v. Neapco. Although that petition was ultimately denied, this new case purports to fit the mold of American Axle. This has led some to hope that Interactive Wearables will also get the nod from the SG—and perhaps High Court review. To those eager for a Supreme Court decision that reins in patent eligibility jurisprudence, however, I regret to inform you that Interactive Wearables will not be that case. This case is quite unlike American Axle—and its claimed invention is in the heartland of what should be ineligible subject matter.

Cooperative v. Kollective CAFC Decision Demonstrates Virtues of Consistent and Candid Patent Prosecution and Litigation

It is sometimes said that a lie gets halfway around the world before the truth has a chance to get its pants on. We have found, however, that it is often the slow-and-steady truth that wins the race in our deliberative justice system, which for patents has both administrative and judicial components. Our case-in-point is the Federal Circuit’s recent decision in Cooperative Entertainment, Inc. v. Kollective Technology, Inc., which reversed a Rule 12(b)(6) dismissal on patent ineligibility under 35 U.S.C. § 101. This case demonstrates how an invention that is potentially assailable on eligibility grounds can be given its best chance by a focused, consistent and synergistic patent prosecution and litigation strategy. Thus, it is not coincidental that your authors are a patent litigator and a patent prosecutor, respectively.

Presenting the Evidence for Patent Eligibility Reform: Part III – Case Studies and Litigation Data Highlight Additional Evidence of Harm

Systemic-level studies and data regarding impact on investment and innovation, as detailed in Part II of this series, are not the only way to demonstrate the substantial harm that the current state of patent eligibility has inflicted on the U.S. innovation ecosystem. Other robust evidence shows that current Section 101 law has harmed innovation by removing the incentives to develop and commercialize particular inventions of public importance. As another form of harm, the vagueness and breadth of the Alice/Mayo framework have also enabled accused infringers to transmogrify Section 101 into a litigation weapon in inappropriate cases that has created unnecessary burdens and costs on innovators and the courts.

Federal Circuit Hands Zillow a Win, Ruling IBM Map Display Patents Cover Abstract Ideas

The U.S. Court of Appeals for the Federal Circuit (CAFC) today issued a precedential decision finding that two IBM patents directed to technology that allows users to select and view results on a map were directed to ineligible subject matter under 35 U.S.C. § 101. IBM had sued Zillow, alleging that several of the services offered on Zillow’s website and mobile applications infringed the claims. But the district court granted Zillow’s motion for judgment on the pleadings, finding the claims were directed to abstract ideas and lacked any inventive concept. The opinion was authored by Judge Hughes. Judge Stoll dissented in part, explaining that claims 9 and 13 of IBM’s U.S. Patent No. 7,187,389 were plausibly patent eligible and should not have been found ineligible at the pleadings stage.

Is an Autonomous Vehicle Patent War Revving Up?

Autonomous vehicles are paving the way as the next big innovation in personal transportation. With new technology, first comes the excitement of breakthroughs in any industry. Then comes the patent litigation arguments over who owns the technology and who can profit off the patents related to the technology. We are seeing this pattern again and perhaps the beginning of the self-driving cars patent wars. Earlier this year, the U.S. Court of Appeals for the Federal Circuit upheld the patentability of all challenged claims in a patent held by Velodyne LiDAR, Inc., one of just a handful of companies that makes LiDAR (light detection and ranging) systems for self-driving cars.

Hughes Dissents in Partial Win for Inventor Against Google at CAFC

The U.S. Court of Appeals for the Federal Circuit (CAFC) today issued a precedential decision in part reversing and in part affirming a district court’s dismissal of an inventor’s patent infringement suit against Google under Federal Rule of Civil Procedure12(b)(6). Judge Hughes dissented in part from the majority’s opinion, which was authored by Judge Stoll, explaining that he would have found all of the challenged claims patent ineligible.

SCOTUS Justices Lob Tough Questions at Both Sides in Prince-Photo Fair Use Fight

The Supreme Court today heard oral arguments in The Andy Warhol Foundation v. Lynn Goldsmith, a case asking the nation’s highest court to determine whether Warhol’s unlicensed use of Goldsmith’s photographs of pop superstar Prince was a fair use of that copyright-protected photo. Many of the Supreme Court’s questions focused on the scope of the use at issue in the case, as well as the extent of the new meaning or message that a purportedly derivative work must take on before it is considered transformative under factor one of the four-factor fair use test.

The Pride in Patent Ownership Act is Big Tech Boondoggling

The Pride in Patent Ownership Act, S.2774, is currently being attached to the National Defense Authorization Act (NDAA). The NDAA is “must pass” legislation funding the military at a time when wars are brewing around the world, some with credible threats of nuclear war. Attaching the Pride in Patent Ownership Act to the NDAA means it will certainly become law.
The Pride in Patent Ownership Act requires those who acquire patents to publicly register their ownership assignments with the U.S. Patent and Trademark Office (USPTO) within 120 days. Thus, it serves to identify potential patent infringement plaintiffs. If the patent holder misses the 120-day deadline, an extremely harsh penalty of losing treble damages for willful infringement, the sole remaining deterrent to willful infringement, is applied.

Amgen Says Solicitor General’s ‘Disagreement With Everyone’ Further Supports SCOTUS Review of Legal Standard for Enablement

On October 5, American biopharmaceutical firm Amgen filed a supplemental brief at the U.S. Supreme Court, which comes about two weeks after the U.S. Solicitor General’s office filed a brief urging the Court to deny certiorari on Amgen’s petition for writ. Amgen’s petition seeks Supreme Court review of rulings in the lower courts invalidating Amgen’s patent claims for lack of enablement. Amgen’s latest brief argues that Solicitor General’s own arguments further support Supreme Court review to clarify the proper standard for reviewing questions of enablement under 35 U.S.C. § 112.

Robot War at ITC Leads to Preliminary Win for iRobot

Roomba maker IRobot Corp. came closer to its goal of knocking down cheaper rival SharkNinja after winning a  decision in its patent-infringement case at the International Trade Commission (ITC/Commission), though it wasn’t a clear victory. ITC Judge MaryJoan McNamara said SharkNinja infringed two of four asserted iRobot patents, according to a notice posted last week on the agency’s electronic docket. The judge’s full findings won’t be public for a couple of weeks, to enable both sides to redact confidential business information.