Speakers on day one of IPWatchdog’s Patent Litigation Masters program acknowledged that it’s easy for patent owners to become frustrated and disconsolate about how far the pendulum has swung away from encouraging effective patent protection but urged attendees to continue speaking up. As program sponsor and co-chair David Henry of Gray Reed put it, “I think we all have to become ambassadors for the patent system.” Henry spoke Monday on a panel about the U.S. Court of Appeals for the Federal Circuit’s recent habit of granting petitions for writ of mandamus to order Judge Alan Albright of the U.S. District Court for the Western District of Texas to transfer cases out of his court, largely to the U.S. District Court for the Northern District of California. Panelists speculated about the motivation for this focus on both the Eastern and Western Districts of Texas, with several agreeing that at least part of the trend is rooted in anti-patent sentiment. “Every time there’s a favorable forum for patentees, it gets harder to get into,” Wendy Verlander of Verlander LLP said.
With about one month left in the U.S. Supreme Court’s current term, several petitions for writ of certiorari in patent cases being appealed from the U.S. Court of Appeals for the Federal Circuit remain pending in front of the nation’s highest court. Several of these petitions raise important questions on Section 101 patent eligibility jurisprudence in the wake of Alice Corp. v. CLS Bank International, a subject which the Supreme Court has punted on dozens of times after handing out that landmark decision on the patentability of computer-implemented inventions back in 2014. With several petitions on other areas of patent law that have grown more uncertain in recent years, including Section 112 enablement issues and patent-specific preclusion doctrines, the last few weeks of the Supreme Court’s term could presage coming changes to U.S. patent law, while recent cert denials indicate other areas of patent law that are of no concern to the nation’s highest court.
In 1950, Jimmy Stewart starred in the iconic movie “Harvey,” which is the story of Elwood P. Dowd, an affable but eccentric man who pals around with an invisible 6’4” rabbit with an affection for martinis and that has the magical power to stop time. In the end of the movie, the viewer is left to believe that some level of insanity in people is good, and that there is some possibility that Harvey actually exists in some form. Fast forward to May 5, 2022. While many Americans were celebrating Cinco de Mayo, the Federal Circuit was asked to address an entity far more fictitious and unbelievable than Harvey the Rabbit, known as “inventive concept,” during oral hearing in In re Killian (Appeal No. 21-2113).
Last week, the U.S. District Court for the Southern District of New York granted Block, Inc.’s Motion to Dismiss a complaint brought by AuthWallet, LLC against it for failure to state a claim. The district court found that the claims of AuthWallet’s patent were invalid because they claimed patent ineligible subject matter under 35 U.S.C. § 101. AuthWallet’s U.S. Patent No. 9,292,852 relates to systems and methods for processing financial transaction data. Block provides online platforms, products, and services that facilitate financial transaction data. Specifically, Block offers mobile payment options that provide a means for customers to earn and redeem rewards for multiple vendors. In its complaint, AuthWallet alleged that Block’s payment platforms infringe on one or more of claims of the ’852 patent, either literally or under the doctrine of equivalents. Specifically, AuthWallet alleged that Block put the inventions claimed by the ’852 patent into service (i.e., used them) and, therefore, Block benefited financially and commercially.
A group of patent practitioners told the Supreme Court on Thursday that a case involving a patent for a type of content player would be a better vehicle for unraveling the patent eligibility problem than American Axle & Manufacturing v. Neapco Holdings, which has been awaiting a brief of the U.S. Solicitor General for about one year now. The case is Interactive Wearables, LLC v. Polar Electro Oy and Polar Electro, Inc. Interactive Wearables petitioned the High Court in March 2022.
Last week, U.S. District Judge James Donato of the Northern District of California issued a judgment on the pleadings invalidating claims from one of 12 patents asserted by semiconductor and software developer Broadcom against streaming video provider Netflix. The ruling is the latest setback for Broadcom in its enforcement campaign against Netflix’s use of patented server technologies to support streaming media services that are cutting into Broadcom’s market for semiconductors developed for use in set-top boxes.
The U.S. Court of Appeals for the Federal Circuit (CAFC) today denied VoIP-Pal.com, Inc.’s petition for a writ of mandamus asking it to direct a California district court to vacate its decision in favor of Twitter, Inc. The U.S. District Court for the Northern District of California issued an order on November 2, 2021, refusing to grant VoIP-Pal’s motion to dismiss Twitter’s request for a declaratory judgment that its products do not infringe VoIP-Pal’s U.S. Patent No. 9,935,872. VoIP-Pal’s patents relate generally to a system for routing communications over Internet Protocol networks, and the company has been engaged in litigation with Twitter, Apple, Amazon and others for several years now.
Earlier this month, Ameranth Inc. filed a Petition for a Writ of Certiorari to the U.S. Supreme Court requesting review of the U.S. Court of Appeals for the Federal Circuit’s (CAFC’s) decision affirming a district court ruling that Ameranth’s patent was ineligible under 35 U.S.C. § 101. Ameranth claims that “federal courts have declared thousands of new and useful inventions abstract and patent ineligible” based on SCOTUS’s decision in Alice Corp Pty. v. CLS Bank Int’l (U.S. Supreme Court, 2014). The culmination of the post-Alice upheaval is the CAFC’s paralytic gridlock of denying rehearing en banc in American Axle & Mfg. v. Neapco Holding LLC (CAFC, 2020) according to the petition. Ameranth pled that the court should provide guidance on the standard for patent eligibility, as federal circuits continue to apply the law in a non-uniform and unarticulated manner.
On March 2, amicus briefs were presented to the U.S. Supreme Court in support of petitioner Universal Secure Registry’s (USR’s) appeal from the U.S. Court of Appeal for the Federal Circuit (CAFC), which challenges that court’s application of the Alice/Mayo framework on Section 101 subject matter patent eligibility in invalidating patent claims owned by USR. Both amicus filings urge the Supreme Court to rein in the Federal Circuit’s expansive application of Alice/Mayo, which has gone far beyond the original bounds intended by the Court. One of those briefs is made even more persuasive by the fact that it was authored by Judge Paul R. Michel, the former Chief Judge of the Federal Circuit.
Earlier this month, the U.S. Senate officially confirmed Judge Leonard P. Stark to serve as a Circuit Judge on the U.S. Court of Appeals for the Federal Circuit. The Federal Circuit bench has great importance to the world of patent law as this is the U.S. federal court of appeal with specialized subject matter jurisdiction over all patent cases arising in U.S. district court and the Patent Trial and Appeal Board (PTAB). Judge Stark was confirmed in an overwhelmingly bipartisan 61-35 vote, reported to be one of the most bipartisan confirmation votes thus far into the Biden Administration. Perhaps chief among Judge Stark’s qualifications that inspired such confidence in his nomination at the Senate was his previous position as U.S. District Judge for the District of Delaware. Serving as the Chief Judge of that district court since 2014, Judge Stark’s docket has seen more than 2,400 patent cases filed since he joined the District of Delaware back in 2010.
Nine months in, and we are still awaiting the Biden administration’s decision as to whether the law of patent eligibility should be clarified. This area of patent law has in recent years become increasingly unpredictable, and the consequences of that unpredictability have largely fallen on startups, whose primary assets are often inventions. On May 3, 2021, the Supreme Court invited the Solicitor General to recommend whether certiorari should be granted in American Axle v. Neapco Holdings, LLC—a case in which a method for manufacturing vehicle driveshafts was deemed ineligible under 35 USC § 101 as being directed to a law of nature.
On February 14, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed the Eastern District of New York’s grant of summary judgment that inventor David Tropp’s patents were invalid because they claim ineligible subject matter under 35 U.S.C. § 101. The appeal was brought by Tropp against Travel Sentry, Inc. and other lock and luggage makers. The asserted claims relate to U.S. Patent Nos. 7,021,537 (the ’537 patent) and 7,036,728 (‘728 patent). Representative claim 1 of the ’537 patent relates to a method of making available a dual-access lock having a combination-lock portion and a master-key-lock portion. The dual-access lock allegedly enables travelers to lock their bags while still allowing luggage screeners to access luggage (with a marked lock) with a master key.
On February 4, in a mixed precedential decision, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed, vacated, and remanded in part a decision by the U.S. District Court for the Central District of California in a patent infringement suit filed by the California Institute of Technology (Caltech) against Broadcom Limited, Broadcom Corporation, and Avago Technologies (collectively “Broadcom) and Apple Inc. The suit was related to Caltech’s U.S. Patent 7,116,710 (‘710 patent), U.S. Patent 7,421,032 (‘032 patent), and U.S. Patent 7,916,781 (‘781 patent). The CAFC affirmed the district court’s denial of judgment as a matter of law (JMOL) on infringement because the jury’s verdict of infringement of the declared claims of the ‘710 and ‘032 patents was supported by substantial evidence and the district court’s construction of the claim limitation “repeat” was not erroneous.
Just over one week ago, U.S. District Judge Alan D. Albright of the Western District of Texas entered a ruling denying PNC Bank’s motion to dismiss patent infringement claims asserted by financial record retrieval tech developer Mirror Imaging. In affirming the validity of Mirror Imaging’s patents under Section 101 at the motion to dismiss stage, Judge Albright acknowledged that tests handed down by the Supreme Court for subject matter eligibility have created a “confusing abyss of patent eligibility law” before affirming the validity of Mirror Imaging’s patents on both steps of the Alice test.
Few lawyers have tried patent eligibility, 35 U.S.C. Section 101, to a jury. Our research found just four such cases since the Supreme Court created its muddled two-step test in Alice v. CLS Bank. In every one of those, the jury issued a pro-ineligibility verdict, while none resulted in a final Section 101 determination either way. Understanding how that issue has been handled at and after trial is important for practitioners with cases where Section 101 is at issue, which has become increasingly common.