Posts in Litigation

Judicial Conference Policy on Random Case Assignments Prompted by Tillis/Roberts Complaints About Waco

The Judicial Conference of the United States announced yesterday that it is strengthening its policy on random case assignments in order to limit the practice of judge shopping in U.S. district courts. According to the press release, the policy would assign judges via a district-wide random selection process in “all civil actions that seek to bar or mandate state or federal actions, ‘whether by declaratory judgment and/or any form of injunctive relief.’”

New York Times Hits Back at OpenAI’s Hacking Claims

In an opposition brief filed Monday, The New York Times Company (The Times) told a New York district court that OpenAI’s late February claim that The Times “paid someone to hack OpenAI’s products” in order to prove OpenAI infringed its copyrights amounts to little more than “grandstanding.” In late December 2023, the Times became the latest of many complainants to accuse OpenAI’s Large Language Model, ChatGPT, as well as Microsoft’s GPT-4-powered Bing Chat, of widespread copyright infringement. The Times alleged that Microsoft and OpenAI reproduce Times content verbatim and also often attribute false information to the Times. The Times’ opposition brief filed yesterday responds to OpenAI’s recent motion to dismiss, which alleged that The Times paid someone to target and exploit “a bug (which OpenAI has committed to addressing) by using deceptive prompts that blatantly violate OpenAI’s terms of use.”

Federal Circuit Council Tells District Court to Scrap Surviving Challenges in Newman Case

The Judicial Council of the Federal Circuit told the U.S. District Court for the District of Columbia on Friday that it should dismiss Judge Pauline Newman’s remaining challenges to the Council’s decision to suspend Newman indefinitely from the court because all of Newman’s claims “fail as a matter of law.” Most recently, on February 12, the District of Columbia court denied a motion for preliminary injunction filed by Judge Newman. Despite acknowledging that all of the recent complaints against Newman’s mental fitness continue to be unsubstantiated, the D.C. district court determined that most of Judge Newman’s requested relief was foreclosed by legal precedent limiting constitutional challenges to the Judicial Conduct and Disability (JC&D) Act. However, the court said it maintains jurisdiction over three of the 11 counts, and part of another, brought by Newman.

Federal Circuit Reverses PTAB Claim Construction, Reviving Cooling Patent

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday, March 7, vacated a decision of the Patent Trial and Appeal Board (PTAB) that had held unpatentable certain claims to CoolIT Systems, Inc.’s patent. U.S. Patent 9,057,567 is titled “Fluid Heat Exchange Systems” and is directed to a system for fluid heat transfer to cool electronic devices. On appeal to the CAFC, CoolIT argued that the PTAB erred in construing one of the claim terms, “matingly engaged” and that even under the PTAB’s construction, the asserted prior art did not meet the matingly engaged limitation.

Patent Filings Roundup: Sitnet LLC Patents Challenged; Touchmusic Launches First Campaign; NPE Activity in UPC Ramps Up

This week was an above-average one for patent filings in both the Patent Trial and Appeal Board (PTAB) and in district courts. The PTAB had two new post grant review (PGR) petitions and 39 new inter partes review (IPR) petitions, for a total of 41 new filings. And the district court also had heightened activity with 75 new filings.

After Weber v. Provisur, Confidentiality Provisions May Not Be Sufficient to Protect Your Documents from Being Prior Art

On February 8, 2024, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Weber, Inc. v. Provisur Technologies, Inc., reversing the finding of the Patent Trial and Appeal Board (PTAB) that certain operating manuals with limited dissemination and confidentiality restrictions did not qualify as prior art. The Federal Circuit’s decision concluded that the Board misapplied the analysis for meeting the public accessibility standard for a printed publication to qualify as prior art.

Federal Circuit Says Narrowing Limitation Does Not Create a Contradiction Leading to Indefiniteness

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision today reversing the Western District of Texas district court’s indefiniteness analysis and explaining that it improperly found a contradiction between two claim limitations to arrive at its indefiniteness holding. Amperex Technology Limited filed an action seeking declaratory judgment of noninfringement and challenged the validity of certain claims of Maxell, Ltd.’s U.S. Patent No. 9,077,035 for a rechargeable lithium battery and Maxell asserted infringement of the patent in a separate action. The two actions were consolidated in the Western District of Texas and the court ultimately held that two of the “wherein” clauses of the sole independent claim 1 of the ‘035 patent contradicted one another.

CAFC: PHOSITA Can Bridge Gaps with Reasonable Success Under Result-Effective Variable Doctrine

On March 5, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential decision in Pfizer Inc. v. Sanofi Pasteur Inc. affirming lower rulings by the Patent Trial and Appeal Board (PTAB) that invalidated Pfizer’s patent claims and denied motions to amend (MTA). Although the Federal Circuit vacated the PTAB’s MTA denials with respect to two patent claims, the ruling adds new contours to the appellate court’s case law on obviousness in ways that could affect companies that are patenting chemical inventions with claimed numerical ranges.

CAFC Partially Reverses Noninfringement Judgment But Scraps IBM Web Advertising Claims as Ineligible

The U.S. Court of Appeals for the Federal Circuit (CAFC) in a precedential decision today mostly upheld a district court ruling that found Chewy, Inc. did not infringe several claims of one IBM web advertising patent and that granted summary judgment of patent ineligibility on certain claims of another. However, the decision, authored by Chief Judge Kimberly Moore, reversed the district court’s finding of noninfringement on one of the five asserted claims of one patent, remanding the case for further proceedings on that issue.

Sanctions Imperative When False Statements are the Basis for a Lawsuit

For better or worse, anyone can be sued for any reason—even reasons that are completely fictitious and based on allegations that are entirely false. Several cases have recently caused me to ask a simple question: Can something actually be evidence if it is false? I’ve had a few people respond, some thoughtful and others intentionally dense. “Of course, something that is false is evidence,” one person recently told me. “It is up to the trier of fact to determine what is false, and that which is false is clearly evidence to be considered.”

A Perspective on USPTO Rulemaking Following In re Chestek

There are many views on the significance of In re Chestek, No. 2022-1843 (February 14, 2024) to the U.S. Patent and Trademark Office (USPTO) rulemaking process. One question I have asked myself is what I would do differently after Chestek if I were still involved in rulemaking at the USPTO. The simple answer is almost nothing: I would cite Chestek instead of the other decisions in the Administrative Procedure Act (APA) section of a proposed or final rule.

CAFC Affirms Albright Rulings in Alexa Shopping List Patent Suit

On February 26, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Freshub, Ltd. v. Amazon.com, Inc., affirming a ruling by U.S. District Judge Alan Albright of the Western District of Texas in the face of appeals from both parties to the case. The Federal Circuit left the lower ruling intact after finding that the record developed at trial did not establish clear error with regards either to Freshub’s patent infringement allegations or Amazon’s inequitable conduct defense.

Examining the Possibility of Compulsory Copyright Licensing for LLM Training

ChatGPT and similar generative artificial intelligence (AI) tools rely on large language models (LLMs). LLMs are fed massive amounts of content, such as text, music, photographs and film, which they analyze to discover statistical relationships among these inputs. This process, describe as “training” the LLMs, gives them the ability to generate similar content and to answer questions with seeming authority. The business community, and society at large, seems convinced that AI powered by LLMs holds great promise for increases in efficiency. But multiple lawsuits alleging copyright infringement could create a drag on development of LLMs, or worse, tip the competitive balance towards offshore enterprises that enjoy the benefits of legislation authorizing text and data mining. A lot seems to hang on the question of whether LLM training involves copyright infringement or instead is a fair use of copyrighted content.

Patent Filings Roundup: Entropic Patents Challenged at PTAB; Push Data Campaign Grows; MyPort Case Closes

It was an average week all around with 31 new patent filings at the Patent Trial and Appeal Board (PTAB) – all inter partes reviews (IPRs) – and 67 new filings in district court. The bulk of this week’s new PTAB filings (a total of 19) were petitions challenging patents owned and asserted by Entropic Communications LLC [associated with SoftBank Group Corp.] (discussed further below). Other notable filings include petitions challenging patents held by Softex [associated with SoftBank Group Corp.], Dental Imaging Technologies [associated with Envista Holdings Corporation], Resonant Systems [d/b/a RevelHMI], Immersion Corp, and Dsm IP Assets BV [associated with DSM-Firmenich AG].

DIG, Dogs and Bad Wine: Justices Float Scrapping Warner Chappell to Consider Alternate Petition on ‘Discovery Accrual Rule’ for Copyright

Oral arguments took place today in Warner Chappell Music v. Nealy, a case that asks whether a copyright plaintiff can recover damages for acts that allegedly occurred more than three years before the filing of a lawsuit. The Justices repeatedly asked the parties involved whether they should dismiss the case as having been improvidently granted (DIG) in order to first grant and decide another pending case that directly addresses a technically peripheral, but seemingly crucial, question at issue in Warner Chappell, namely, whether the so-called discovery accrual rule applies to the Copyright Act’s statute of limitations for civil claims.