On Wednesday, the United States Court of Appeals for the Federal Circuit (CAFC) reversed a district court’s dismissal of a Florida vape company’s patent lawsuit against tobacco company Phillip Morris. Healthier Choices Management (HCM) filed the appeal to the CAFC after a district court ruled in Phillip Morris’s favor, dismissing the patent infringement case. HCM alleged that Phillip Morris infringed on its patent for an electronic pipe, U.S. Patent No. 10,561,170. The CAFC reversed the district court’s dismissal of the original complaint and its denial of HCM’s motion to amend the complaint. Additionally, the appeals court vacated the award of attorneys’ fees to Phillip Morris.
On April 12, the U.S. Court of Appeals for the Federal Circuit issued a precedential ruling in Sequoia Technology, LLC v. Dell, Inc. reversing part of a District of Delaware ruling invalidating digital storage patent claims owned by Sequoia under 35 U.S.C. § 101. Although the ruling restores Sequoia’s rights to the patent claims at issue in the case, the Federal Circuit affirmed portions of the district court’s claim construction order that had supported a finding that Dell and other defendants did not infringe upon Sequoia’s asserted patent claims.
The simplest facts are sometimes the most difficult to comprehend. Patent suits are not as pervasive as they are portrayed in the media or by defendants. Remarkably few are filed relative to the number of patents that are active. The necessity to litigate patent disputes to get the attention of potential infringers and hold a meaningful licensing discussion has likely increased the total number of suits filed. If it has, it has not had much of an impact on the net total. This suggests that many patent holders who should be suing are not.
The U.S. Court of Appeals for the Federal Circuit (CAFC) in a precedential opinion today affirmed a district court’s judgment that AT&T Mobility LLC did not infringe an inventor’s wireless communications technology patent but held that AT&T had forfeited its chance to prove the patent is invalid on appeal. Joe Salazar’s U.S. Patent No. 5,802,467 is titled, “Wireless and Wired Communications, Command, Control and Sensing System for Sound And/or Data Transmission and Reception.” After unsuccessfully suing HTC Corp. for infringement in 2016, Salazar sued HTC’s customers, AT&T, Sprint, T-Mobile and Verizon, in 2019, alleging certain phones sold by the companies infringed his patent. A jury ultimately found that the companies did not infringe but that the patent was not invalid as anticipated.
On March 30, U.S. Patent and Trademark Office (USPTO) Director Kathi Vidal issued a decision on sua sponte Director review that vacated a decision of the Patent Trial and Appeal Board (PTAB), which had previously denied institution of inter partes review (IPR) proceedings brought by semiconductor company Wolfspeed. In her latest in a series of sua sponte decisions, Director Vidal ruled that the PTAB erred in determining that prior art asserted by Wolfspeed was essentially the same as other prior art asserted against the same Purdue University patent claims in previous IPR proceedings that were also denied institution by the PTAB.
Yesterday, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed in part a district court ruling that found video game company Valve willfully infringed Ironburg’s U.S. Patent No. 8,641,525. However, the CAFC judges ruled that the district court erred when it estopped Valve from raising several grounds that were not the subject of its partially-instituted inter partes review (IPR) petition against Ironburg. Judge Clevenger dissented. A jury levied Valve with $4 million in damages, a sum that Ironburg argued should be enhanced. The district court did not grant enhanced damages, found that the two challenged claim terms were not indefinite, said the claims were willfully infringed, held that Valve was estopped from litigating the prior art grounds on which IPR was requested but not instituted, and also held that Valve was estopped from litigating later-discovered invalidity grounds. The CAFC affirmed all but the latter holding, explaining that the later-discovered prior art that was not part of the IPR petition must be held to a “skilled searcher” standard that it is the burden of the patent holder to prove is subject to IPR estoppel.
On March 31, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Philip Morris Products S.A. v. International Trade Commission affirming a Section 337 ruling by the U.S. International Trade Commission (ITC) that blocked the importation and sale of electronic vape tobacco products infringing patents owned by R.J. Reynolds Vapor Company. While much of the precedential decision deals with Philip Morris’ procedural and agency challenges to the ITC’s ruling, the Federal Circuit also rejected arguments that several patentability findings entered by the ITC were not supported by substantial evidence. The present appeal stems back to an ITC complaint filed by R.J. Reynolds in April 2020 seeking a Section 337 investigation into Philip Morris’ IQOS line of heat-not-burn tobacco vaping products. The two patents asserted by R.J. Reynolds are U.S. Patent No. 9901123, Tobacco-Containing Smoking Article, and U.S. Patent No. 9930915, Smoking Articles and Use Thereof for Yielding Inhalation Materials. After a yearlong investigation, the administrative law judge (ALJ) concluded that the accused IQOS products infringed claims of both patents, that R.J. Reynolds established the existence of a domestic industry with respect to both patents, and that the public interest did not weigh against entry of a limited exclusion order (LEO).
The U.S. Solicitor General on Wednesday filed an amicus brief with the United States Supreme Court advising it to grant Teva Pharmaceuticals’ petition for writ of certiorari relating to generic manufacturers’ liability for infringement through the use of “skinny labels” on generic drugs. The SG’s brief said that the U.S. Court of Appeals for the Federal Circuit (CAFC) got it wrong, and that the decision could upend the careful balance contemplated by the Hatch-Waxman Amendments between incentivizing new brand name drugs and allowing cheaper generics into the market.
Standard-documentation from online sources maintained by standard setting organizations (SSOs) is usually an important source of relevant prior art. Such prior art can include technical specifications, technical reports, change requests, liasioning statements, work item descriptions, study documents, recommendations and RFCs. However, accessing this documentation available in SSO websites is often not easy.
In Part I of this two-part article, we provided an analysis of the Wi-Fi 6 litigation and technology landscape. This Part II discusses important changes to the IEEE rules governing the reasonable and non-discriminatory (RAND) licensing encumbrances on SEPs held by participants in IEEE standardization work. Unfortunately, these rule changes fall short of clarifying what RAND means for Wi-Fi licensors and implementers. Instead, fueled by Wi-Fi 6’s growing valuation and adoption of heavily patented core technologies from LTE and 5G, the rule changes arguably will only heat up the current litigation trend.
For well over a year, Senator Elizabeth Warren (D-MA) and some members of Congress have engaged in a campaign to urge the Health and Human Services Secretary Xavier Becerra to break patents on pharmaceuticals to lower drug prices by invoking a century-old statute, Title 28 of the U.S. Code 1498. This is their “game plan”: HHS should contract with generic drug companies willfully to infringe pharmaceutical patents, thereby requiring any damages to be paid from public funds. This strategy took a new tack in early March 2023, when the Biden Administration’s Justice Department filed a surprise “Statement of Interest” in a private lawsuit on behalf “the Government and its Department of Health and Human Services and the Department of Defense.” The case, filed in Delaware federal court, was initiated by Arbutus Biopharma and Genevant Sciences, which allege that that patents they own were infringed by Moderna in producing its version of the COVID-19 vaccine.
Wi-Fi 6 shares new technologies with LTE and 5G that are subject to heavy patenting. The firms and institutions that currently monetize their standard essential patents (SEPs) against LTE and 5G will likely be looking to increase their royalty income from Wi-Fi 6 and 6e. This could mean that the recent disputes over LTE and 5G standardization participants’ fair, reasonable, and non-discriminatory (FRAND) SEP licensing commitments will spill over into Wi-Fi. Current Wi-Fi litigation trends suggest that this is already afoot, and the recent licensor-friendly changes in the IEEE IPR rules are feared to only fuel this trend.
Just over the mountain of Patent Eligibility Reform awaits The Thiefdom of Efficient Infringers. No other intellectual property criminal enjoys the legal immunities and protections that the patent thief enjoys. Other intellectual property criminals – the copyright infringers, the trademark infringers, and the trade secret thieves – all are subject to both civil and criminal liability, just like every other common criminal. But not the patent thieves. This one type of intellectual property criminal gets favored treatment and special protections under the law. Why is this?
Artificial Intelligence (AI) is providing enormous productivity and increased value in many applications. But AI is no panacea and is not yet sufficiently well developed to be precise or dependable everywhere. For example, much better AI training data is required to reliably estimate patent essentiality to standards such as 4G and 5G, where AI is being advocated by various experts and has already been adopted by one patent pool. There is also a lot of room for improvement in inferencing.
The United States Court of Appeals for the Federal Circuit (CAFC) issued a precedential ruling Monday that vacated and remanded a district court ruling on patent infringement in a case between Amazon and AlterWAN. The circuit judges vacated the ruling, which found Amazon did not infringe on two AlterWAN patents for internet network technology. Based on two of the district court’s claim constructions, the parties entered into a stipulation of non-infringement; however, AlterWAN appealed the case and contested the district court’s construction of two terms relevant to the patent claims. The CAFC found the stipulation to be vague and lacking detail, and thus vacated the ruling and sent it back to the district court.