Posts Tagged: "infringement"

The Federal Circuit, however, found the district court’s enforceability finding to be unsupported by evidence. The rejection of Nokia’s proposal did not obviate Nokia’s requirement to disclose inventions that might be essential to the standard. Dr. Walker’s uncontroverted testimony explained that patent applications are to be disclosed at the time proposals are presented. “[A]n ETSI member’s duty to disclose a patent application on particular technology attaches at the time of the proposal and is not contingent on ETSI ultimately deciding to include that technology in an ETSI standard,” Bryson explained. Notwithstanding, the Federal Circuit elected to vacate this ruling rather than electing to reverse the district court because the existence of an implied waiver is an equitable defense.

On February 20th, Clearwater Beach, FL-based restaurateur Frenchy’s Corporate filed a suit alleging trademark infringement against the owners and operators of Frenchy’s Pizzeria & Tavern, located less than an hour’s drive away from Clearwater in Port Richey, FL. The suit, filed in the Middle District of Florida, aims to protect Frenchy’s Corporate trademark rights to the unregistered trademark “FRENCHY’STM” under…

35 U.S.C. § 271(g) was enacted in 1988 as part of the Process Patents Amendments Act to address instances where would-be infringers were avoiding infringement liability by using a process, patented in the U.S., outside of the country and then importing the product of the patented process into the U.S. Eli Lilly and Co. v. American Cyanamid Co., 82 F.3d 1568, 1571 (Fed. Cir. 1996). Under Section 271(g), such activity constitutes infringement. 35 U.S.C. § 271(g). The statute, however, carves out two exceptions: (1) where the product of the patented process that was made outside the U.S. is “materially changed” prior to importation; and (2) where the product of the patented process becomes a “trivial and nonessential component” of the product being imported. This article examines Federal Circuit case law addressing the circumstances that will (and will not) give rise to application of the “material change” carve out to infringement liability under Section 271(g).

The Federal circuit heard the case on AbbVie Inc. v. MedImmune Ltd. AbbVie and MedImmune entered a development and licensing agreement in 1995. The agreement stemmed from a research collaboration between the parties, resulting in the antibody adalimumab, the active ingredient in Humira… In general, parties may not seek a declaratory judgment to litigate one issue in a dispute that must await adjudication of other issues for complete resolution of the dispute. In limited circumstances, courts may permit this type of action where litigation is pending that would resolve the remaining questions.

Q4 2017 saw a total of 981 patent infringement cases filed in district courts, the second-lowest total for any quarter in 2017 and the third-lowest total for any quarter dating to the third quarter of 2011. The 4,057 patent suits filed in district court through 2017 was the lowest total for an entire year since 2011… A week-by-week graph of patent filings shows that, while Eastern Texas saw a much greater share of patent filings than Delaware in the months leading up to the TC Heartland decision, Delaware filings have topped Eastern Texas filings in almost every week since the SCOTUS decision.

In 2017, there were several noteworthy decisions relating to the Digital Millennium Copyright Act (DMCA). Specifically, the Ninth Circuit addressed two separate cases, one dealing with safe harbor provisions, the other on anti-circumvention. This article discusses three separate decisions including Mavrix Photographs LLC v. LiveJournal Inc., 873 F.3d 1045 (9th Cir. 2017)(on DMCA safe harbor), and Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d 848 (9th Cir. 2017)(anti-circumvention provisions).

May a court rely on post-priority-date evidence offered to show that a patent lacks written description support even though written description is judged based on the state of the art as of the priority date?  Yes, at least when the evidence relates to whether or not a claimed genus discloses a representative number of species.  Amgen v. Sanofi No. 2017-1480 slip op. Fed. Cir. Oct. 5, 2017 (“Amgen”).   Such evidence, the Federal Circuit observed, is likely to postdate the priority date, because were it to predate, it might be anticipatory.  To consider such evidence is therefore a matter of “common-sense,” the Court added.

There have been 220 patents upheld as valid in real courts and also subject to a final written decision in the PTAB. The PTAB only agreed with the real courts on 52 patents, while disagreeing with them on 168 patents. If the U.S. legal system is the gold-standard, that means the PTAB is erroneously invalidating patents 76% of the time… In the PTAB, generally only two grounds of attack are available – 35 U.S.C. §102 for novelty and 35 U.S.C. §103 for non-obviousness. But in the real court four grounds are available as a defense – along with §102, §103, accused infringers are also afforded validity challenges under 35 U.S.C. §101 for basic patentability and 35 U.S.C. §112 for specification. So how is it that the PTAB invalidates three times as many patents with only half as many grounds available? The only answer is because it is specifically designed to help infringers by bypassing due process protections afforded to inventors in real courts. Apologists will go on to argue that the PTAB had better evidence, better prior art, better experts, better judges – nonsense! The real courts have rules and procedures which are tremendously more thorough, developed, proven, and fair. The PTAB has not and cannot measure up.

Originally filed in October 2014, the long-running and high-stakes battle between two powerhouse companies, Amgen and Sandoz, continues to lay out the ground rules for a growing biosimilar industry. State law claims are preempted by the BPCIA on both field and conflict grounds, which means only remedy available against biosimilar applicants refusing to engage in the patent dance is filing for a declaration of infringement, validity, or enforceability of a patent that claims the biological product or its use. Notably, this must be done before receiving manufacturing information from the biosimilar company. Patent lawsuits are notoriously costly so, in the short term, the decision will have the greatest impact on innovator start-ups with limited financial resources. In the long term, relying on costly litigations to keep biosimilar drugs off the market will likely increase the consumer price for any biologic drug.

A jury verdict recently entered in a patent infringement case in the Eastern District of Texas held that plaintiff Packet Intelligence, a patent owning entity headquartered in Marshall, TX, did not prove infringement of claims from three patents asserted against Canadian communications service solutions provider Sandvine Corporation (TSE:SVC). The jury verdict comes less than one month after Packet Intelligence won a jury verdict of infringement on the same asserted patents in a different Eastern Texas case filed against Westford, MA-based application and network performance management firm NetScout Systems (NASDAQ:NTCT).

One of the interesting theories posed by the case is Character for Hire’s claimed right to use Disney characters, which derive from Norse mythology or centuries-old fairy tales. In its response to Disney’s motion for summary judgment, Characters for Hire argues that many of the Plaintiffs’ copyrights are based on prior works that have been in the public domain for hundreds of years such as Cinderella, Snow White, Rapunzel, Sleeping Beauty, Aladdin, Princess Aurora, Beauty and the Beast, the Little Mermaid, Thor and Loki. “It will be interesting to see how the Court delineates between established fairy tale characters and the original expression added to them by Disney,” Furey said.

On November 28 the parties requested an extension of the temporary stay, explaining: “The parties are still actively engaged in settlement discussions but require additional time to potentially resolve this matter.” A date of December 18, 2017, was jointly proposed for either the filing of a stipulated dismissal or joint status report. The District Court granted this extension on November 29, 2017… These requests for temporary stay follow a jury verdict issued in the case on August 3rd, which awarded reasonable royalties to both Philips and ZOLL for infringement of patents asserted by both parties in the case. That verdict awarded Philips a total of $10.4 million for infringement of three patents, while ZOLL was awarded a reasonable royalty of $3.3 million for two patents it asserted in the case.

The U.S. International Trade Commission (ITC) announced that it was investigating potential patent infringement committed by Cupertino, CA-based consumer tech giant Apple Inc. (NASDAQ:AAPL)… Aqua Connect said that Apple gave the ACTS terminal server product its “full support” when released to industry praise in 2008. To attract enterprise and government customers, Apple worked closely with Aqua Connect on development and sales of its terminal server service. “In early 2011, however, Apple—-abruptly and without explanation—stopped cooperating with Aqua Connect,” Aqua Connects alleges. By July of that year, Apple released a macOS update known as “Lion” which included a Screen Sharing remote desktop and terminal server solution.

Arguing against Micron’s motion to dismiss, Harvard contended that TC Heartland only affirmed a previous precedent set by SCOTUS and that the improper venue challenge was available to Micron back when it filed its first motion in August 2016… The Federal Circuit concluded that the TC Heartland decision “changed controlling law in the relevant sense” and thus the Supreme Court’s interpretation of the patent venue statute was not available to Micron at the time of its August 2016 motion to dismiss.concluded that the TC Heartland decision “changed controlling law in the relevant sense” and thus the Supreme Court’s interpretation of the patent venue statute was not available to Micron at the time of its August 2016 motion to dismiss.

For the last 20 years, manufacturers have used 3D printing to build prototypes, but it was only recently that this industrial technology entered the mainstream.  The 3D printing of products can enable faster time-to-market, save money, mitigate risk and allow manufacturers to customize a component to suit customer needs. 3D printing can produce individual, specifically tailored parts on demand. Boeing printed an entire plane cabin in 2013 and Ford can manufacture vehicle parts in four days that would have taken four months using traditional methods.