Posts in Litigation

IP Practitioners Speak Out on the U.S. Government’s Approach in American Axle Brief

Last week, the United States Solicitor General recommended granting review in American Axle & Manufacturing v. Neapco Holdings, a case many in the patent community hope will provide clarity on U.S. patent eligibility law. IPWatchdog asked stakeholders to weigh in on whether the SG took the right approach and what this latest development means for the fate of U.S. patent eligibility. Here is what they had to say.

In Arthrex II, CAFC Rejects Arthrex’s Constitutional and FVRA Arguments Challenging Denial of Director Review

On May 27, the U.S. Court of Appeals for the Federal Circuit issued a decision in Arthrex, Inc. v. Smith & Nephew, Inc. (Arthrex II) affirming both a final written decision issued by the Patent Trial and Appeal Board (PTAB) invalidating patent claims owned by Arthrex, as well as several arguments raised by Arthrex challenging the denial of Director review decided by the U.S. Patent and Trademark Office’s Commissioner for Patents. The opinion, authored by Chief Judge Kimberley Moore, reasoned that the USPTO did not violate the U.S. Supreme Court’s mandate in Arthrex I despite the fact that no presidentially-appointed, senate-confirmed Director was in place at the USPTO when the agency denied Arthrex’s request for Director review.

‘Russian Doll’ Copyright Infringement: Beware What’s in the Background

In the winter of 2014, Leah Bassett rented her Martha’s Vineyard home to Joshua Spafford. He seemed like a nice guy, quiet and well-dressed. Joshua listed his employer as “Mile High Media.” Mile High then used the home to shoot several adult videos. Leah, the homeowner, didn’t know that they were going to use her home in this way. She was upset when she learned what they had done, but in the end, she got her revenge thanks to copyright law.

SEP Licensing is Not a Promise, It’s a Two-Way Street

“For 200 years, the world was getting along just fine without a policy statement on SEPs [standard essential patents],” said Andrei Iancu earlier this week at Patent Litigation Masters™ 2022, discussing Biden Administration attempts to revisit the 2019 SEP policy agreement among the U.S. Patent and Trademark Office (USPTO), National Institute of Standards and Technology (NIST) and Department of Justice (DOJ). “Standard essential patents are patents too… the regular rule of law should apply.” Iancu, former USPTO Director, and current partner at Irell & Manella, went on to say that the real goal of those constantly chipping away at patent rights is simple: “Weaken patents so that the big entities can have freer reign to get bigger, to infringe patents in a less encumbered way.”

More Mandamus Maneuvering at the CAFC in Latest Venue Transfer Win for Apple

The U.S. Court of Appeals for the Federal Circuit (CAFC) today granted Apple’s petition for a writ of mandamus asking the court to direct the U.S. District Court for the Western District of Texas to transfer a case brought by BillJCo, LLC to the Northern District of California. BillJCo owns six patents directed to beacon technology, with Bill Johnson and his son Jason Johnson, who lives in Waco, Texas, named as inventors or co-inventors. The suit was brought against Apple for infringement based on its iBeacon protocol. Apple argued that it “researched, designed, and developed the accused technology from its headquarters within the [Northern District of California]; that evidence and witnesses would likely be in Northern California; and that neither BillJCo nor this litigation had any meaningful connection to Western Texas.”

IPWatchdog’s Patent Litigation Masters: Waving a Wand to Fix U.S. Patent Litigation

Day two of IPWatchdog’s Patent Litigation Masters Program yesterday included panels on IP Finance, Mega Verdicts in Patent Litigation, Expert Witnesses and the Fintiv Saga. During the latter panel, former U.S. Court of Appeals for the Federal Circuit Judge Kathleen O’Malley joined other speakers to discuss the effects of the Patent Trial and Appeal Board’s (PTAB’s) Fintiv decision, a controversial precedential PTAB opinion that outlined factors for the Board to consider in choosing whether to discretionarily deny institution of an inter partes review (IPR) proceeding. Todd Walters of Buchanan Ingersoll & Rooney presented statistics showing that the rate of denials due to Fintiv has recently fallen off a cliff.