Posts Tagged: "patent infringement"

Teva Tells SCOTUS CAFC Decision Could Upend Hatch-Waxman

On July 11, Teva Pharmaceuticals USA filed a Petition for Writ of Certiorari to the U.S. Supreme Court asking it to review a decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in which the CAFC found that Teva could be held liable for inducement based on sections of a “skinny label” that provided information about unpatented uses. Teva claims that the decision by the CAFC would upend the legal rules governing the modern prescription-drug marketplace. The petition notes that the decision would wreak doctrinal havoc in two equally disturbing ways. First, the court’s decision eliminates the key element of inducement liability requiring plaintiffs to prove that a defendant took active steps to encourage the direct infringement. Secondly, it effectively nullifies a Congressional act that was enacted to bring low-cost generic drugs to market, which is precisely what Teva was doing.

Federal Circuit Denies Thales’ Request to Bar Philips from Heading to the ITC

The U.S. Court of Appeals for the Federal Circuit today held in a precedential decision that Thales DIS AIS Deutschland GMBH cannot stop Philips from seeking an exclusion order at the International Trade Commission (ITC) to enjoin Thales from importing its products relating to wireless network technology into the United States.

Inventor Asks SCOTUS to Consider Patent Eligibility Again, Distinguishing Case from American Axle

Despite the U.S. Supreme Court’s rejection of the petition in American Axle v. Neapco just a few days earlier, inventor David Tropp on July 5 again asked the Court to unravel U.S. patent eligibility law. Tropp, who owns two patents relating to luggage lock technology that enables airport screening of luggage while still allowing the bags to remain locked, is asking the Court to answer the question: “Whether the claims at issue in Tropp’s patents reciting physical rather than computer-processing steps are patent-eligible under 35 U.S.C. § 101, as interpreted in Alice Corporation Pty v. CLS Bank International, 573 U.S. 208 (2014).”

When it Comes to Patent Reform, Watch What Google Does – Not What it Says

The debate over patent reform is heating up again. Last month, Google published a blog post on patent reform, purportedly aimed at promoting American innovation. In it, Google decried the rising tide of “wasteful patent litigation,” railed against the disfavored practice of “forum shopping” and advocated for pending legislation aimed at making it easier for large companies to challenge the validity of patents owned by smaller rivals — all in the name of promoting a patent system that “incentivizes and rewards the most original and creative innovators.”

Defending Breakthrough Innovations – Protecting University Patents at the ITC

Many universities recognize the value of their patent portfolios and the need to protect their intellectual property rights from unlicensed and unfair use. When licensing negotiations break down, universities generally seek to enforce their rights in U.S. district courts, but overlook a potentially more favorable forum: the United States International Trade Commission (ITC). The ITC is a unique patent forum with experienced judges, defined patent rules, and statutory mandates to provide a timely resolution. More importantly, the ITC was designed protect U.S. industries, including the research and development performed at universities. This is not a hypothetical exercise: one university recently utilized the ITC, blazing a path that others can follow. As explained below, more universities should follow suit.

The Way FRAND Concepts are Applied in Other Sectors Illustrates the U.S. Government’s Orwellian View of Patent Rights

A while back, we set up an email alert to advise us of any legal developments involving fair, reasonable and non-discriminatory (FRAND) licensing. Somewhat to our surprise, the notion of requiring FRAND terms and conditions for obtaining access to the otherwise exclusive property rights of others is not limited to patents essential to industry standards. Rather, FRAND licensing concepts, or minor variations thereof (e.g. “just, reasonable and nondiscriminatory”), appear in government regulation of stockyards (see 7 USC §208), vehicular air pollution information (see California’s Health and Safety Code §43105.5 (7)), and airports (see La. R.S. §1:135.1), to name a few.

Patent Litigation Financing: Fighting Efficient Infringement with Funding

Today, many companies make the business decision to infringe patented technology instead of paying a royalty to license it—so called efficient infringement. The calculation is that it will ultimately be less expensive to ignore the patent rights of innovations than to take a license in an arm’s length negotiation. Over the last 15 years, that calculus has largely proven correct, with changes to numerous laws and the introduction of additional administrative processes all conspiring to make it easier to challenge issued patents. This means that litigation is often the only way for an innovator to protect valuable intellectual property and to stop infringement. Unfortunately, lacking leverage and financial resources, many patent owners cannot stop infringement—in some instances, even after a jury trial.

CAFC Sends Centripetal Back to Drawing Board in Case with Cisco Due to Judge’s Stock

Centripetal Networks will have to start from square one in its long-running case against Cisco after the U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday vacated a judge’s decision awarding Centripetal enhanced damages and royalties exceeding $2.75 billion. The CAFC ruled that Judge Henry C. Morgan, Jr. of the United States District Court for the Eastern District of Virginia was disqualified from hearing the case after becoming aware of his wife’s ownership of $4,687.99 in Cisco stock, ultimately reversing the district court’s denial of Cisco’s motion for recusal and vacating all orders and opinions of the court, including the final judgment in favor of Centripetal.

Kudos to USPTO, DOJ, NIST for Abandoning a Bad Draft, but Future Remains Murky for SEP Holders

In a recent surprise decision, the U.S. Department of Justice (DOJ), U.S. Patent and Trademark Office, and the National Institute of Standards and Technology officially withdrew their 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments and declined to advance an alternative policy statement as a replacement. While the withdrawal of the 2019 policy statement was seen as a foregone conclusion (given the far more SEP-restrictive nature of a December 2021 draft policy statement (DPS) circulated by the agencies), moving forward without any guidance was not on anyone’s DOJ policy bingo card for 2022. The slim guidance that this withdrawal announcement does provide, however, paints a murky picture for the ability of SEP holders to obtain injunctive relief.

CAFC Reverses and Vacates Decision for L’Oréal, Finding District Court Claim Construction was Improper

On June 13, the U.S. Court of Appeals for the Federal Circuit (CAFC) reversed in part, vacated in part, and remanded a decision by the United States District Court for the District of Delaware relating to the University of Massachusetts’ (UMass’) suit against L’Oréal S.A. and its American subsidiary L’Oréal USA, Inc. (collectively, L’Oréal), alleging patent infringement of both U.S Patent No. 6,423,327 (the ‘327 patent) and U.S. Patent No. 6,645,513 (the ‘513 patent). The district court held that it lacked personal jurisdiction over L’Oréal S.A. and that the patents were invalid based on indefiniteness. UMass on appeal challenged both of the district court’s holdings, arguing that they were entitled to jurisdictional discovery against L’Oréal S.A. and that the claim construction performed by the district court was improper.

Announcements on Withdrawal of SEP Policy Statements Lack Clarity and Leave Patent Owners Guessing

As was recently reported by IPWatchdog (here and here), the U.S. Patent and Trademark Office (USPTO), the National Institute of Standard and Technology (NIST), and the U.S. Department of Justice, Antitrust Division (DOJ) issued a statement on June 8 withdrawing the December 19, 2019 Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (2019 Policy Statement). A footnote to the statement further provides that “the agencies do not reinstate the January 8, 2013, Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments issued by the DOJ and the USPTO.” Curiously, this statement makes no mention of the 2021 Draft Policy Statement on Remedies for Standards-Essential Patents Subject to Voluntary F/RAND Commitments (2021 Draft Policy Statement), which draft statement was criticized by a broad cross-section of industry participants for a variety of different reasons. Regardless, our question is simply this: why did the 2019 Policy Statement need to be withdrawn instead of simply not proceeding with the 2021 Draft Policy Statement or, alternatively, modifying those portions of the 2019 Policy Statement that the agencies did not agree with? By throwing the baby out with the bath water, patent owners are now left to guess where the agencies stand on such issues.

WTO Conference Could End with Agreement on COVID Vaccine IP Waiver This Week

The World Trade Organization’s (WTO’s) 12th Ministerial Conference is set to take place this week, June 12-15, at WTO headquarters in Geneva, Switzerland. As part of the four-day meeting, discussions around the latest text of the proposal to waive intellectual property (IP) rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for COVID-19 vaccine technology will take place around the clock, and it is expected that some agreement will be reached. TRIPS Council Chair, Ambassador Lansana Gberie of Sierra Leone, said on June 7 that “delegations have entered into real negotiation mode in the last 24 hours,” and that she is “feeling cautiously optimistic now that we will get this text ready for adoption by ministers in time for the coming weekend.”

The Biden Administration’s Neutrality Position on SEP Remedies is a Good Move

On June 8, the Biden Administration announced a detente on the issue of standard essential patents (SEPs) through coordinated statements made by the United States Patent and Trademark Office (USPTO), Department of Justice Antitrust Division, and National Institute of Standards and Technology (NIST). The casual reader, or reader who only quickly glanced at the headlines, might be mistaken into believing the Biden Administration had declared war on SEP owners due to the Administration rescinding the 2019 Joint Policy Statement between the USPTO, DOJ and NIST that was biased in favor of the possibility of SEPs being like any other patent, with remedies for infringement possibly including injunctive relief. Those familiar with Administration’s efforts on SEPs will recall that a 2021 draft policy statement had been published, which swung heavily against patent owners and resurrected the debunked myth that patent owners engage in hold-up activities.

Another Peculiar Anti-Patent Court Decision in ParkerVision v. Qualcomm

Infringing patented inventions feels like stealing, from the innovator’s perspective, much like a smash and grab at a jewelry store. Politicians refuse to fix the gutted patent system so it can protect U.S. startups and small inventors. The American Dream is slipping away, as it consolidates into the hands of just a few tech giants and sending whatever is left to China. Case in point, ParkerVision v. Qualcomm, which illustrates just how anti-patent some courts have become. In this case the importance of ParkerVision’s seminal semiconductor chip technology that helped to transform cellphones into smartphones is at issue. ParkerVision invested tens of millions in R&D, but the courts have allowed it to be taken from them and transferred to a multinational corporation free of charge.

‘I Shall Be Released’: A Favorite Song Among SEP Implementers

As we have previously explained, many implementers wish to require patent owners to establish (1) the need for licenses, and (2) that any terms offered are in fact fair, reasonable and non-discriminatory (FRAND), but without having to make any commitment to accepting FRAND licenses, and without ever losing entitlement to the same. With respect to the latter, recall, for example, Apple’s position it its case with PanOptis, namely that PanOptis had “no legal right under U.S. law to impose on Apple an obligation to negotiate a license to Plaintiffs’ portfolios of declared-essential patents or forfeit any defenses for failing to do so” (Apple Inc.’s Motion to Dismiss Count VIII for Lack of Subject Matter Jurisdiction, Optis Wireless Technology, LLC, Optis Cellular Technology, LLC, Unwired Planet, LLC, Unwired Planet International Limited, and PanOptis Patent Management, LLC v. Apple Inc., Civil Action No. 2:19-cv-00066-JRG (E.D. Texas, June 22, 2020)) [hereinafter Optis v. Apple]. Basically, such implementers want the option of capping their exposure at FRAND rates if ever found to infringe. We refer to this as an implementer wanting to have its FRAND cake and eat it too.


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