Posts Tagged: "patent infringement"

This paper proposes amending 35 U.S.C. 271 Infringement of Patent with elements drawn from § 2-403 of UCC Article 2, Sale of Goods, and with elements of the Patent Exhaustion Doctrine. This amendment, if enacted, would prevent patent trolls from proceeding against Bona Fide Purchasers for Value with respect to certain specific infringements, in order to strengthen consumer confidence in the marketplace, by ensuring that vendors can deliver the products that they sell, free of threats of patent infringement litigation against such innocent buyers.

EDITOR’S NOTE: What follows is a summary of the Goodlatte patent bill created by American Continental Group, which is a government affairs and strategic consulting firm in Washington, DC. Manus Cooney, a former Chief Counsel of the Senate Judiciary Committee is one of the partners at ACG, and is also frequent guest contributor on IPWatchdog.com. Cooney and his partners and associates worked to prepare this summary, which was described as a team effort. It is republished here with permission.

Universal Electronics sues Peel Technologies over remote control patents —– GigOptix and MACOM settle patent infringement and trade secret/employment disputes —– Nintendo prevails at ITC on Wii patent infringement complaint —– E-commerce video technology at center of patent infringement lawsuit —– MGT Capital asserts newly granted patent in infringement lawsuit —– Blonder Tongue prevails over K Tech on Summary Judgment —– OurPet’s files patent infringement lawsuit against Go Fetch —– Freescale settles with Tessera

The Supreme Court on June 24, 2013, called for the views of the Solicitor General on petitions to review the Federal Circuit’s en banc decision on joint infringement of process patents. That decision held that induced infringement of a process patent claim may be found even though no single entity performed all of the claimed steps as long as claim steps are performed collectively by multiple parties

Flying under the AMP v. Myriad radar recently was Federal Circuit’s Organic Seed Growers v. Monsanto. In Organic Seed Growers, the Federal Circuit denied declaratory relief to a band of more than 60 farmers, seed vendors, and agricultural organizations from California to Florida (and even Canada) seeking to invalidate 23 of Monsanto’s patents relating to various technologies for genetically modified seeds. The band of agriculturists grows, uses, or sells conventional seeds that do not incorporate Monsanto’s technologies. Many have organic certifications, and generally eschew transgenic seeds and glyphosate-based herbicides such as Monsanto’s Roundup® herbicide.

In TiVo v. Echostar, Echostar lost on infringement of TiVo’s patented DVR functionality. Judge Folsom issued an injunction and ordered that Echostar stop offering the service and disable all storage to and playback from the hard disk. Unfortunately for Echostar, they did not appeal the wording of the injunction and took no action against the disablement provision. Instead they designed around it by downloading new code to get the set-top box to operate in a different way, in what appeared to be a pretty clean design-around. TiVo filed a contempt motion. Echostar was sanctioned on the grounds that there were not “colorable differences” and their design-around infringed. The dissent argued that not only were there colorable differences but moreover the differences established non-infringement. After two years of back-and-forth and one too many trips to Judge Folsom, the original 70 million that Echostar had to pay for the initial infringement rose to 300 million because of Echostar doing what they thought would get them out of infringing.

Alexsam, Inc. v. IDT Corporation is a non-remarkable patent infringement decision with a remarkable dissent. What is noteworthy about the case is not the majority opinion, but the dissent by Judge Haldane Robert Mayer. Mayer’s dissent discusses why the patent is invalid under 35 U.S.C. § 101, which is curious because the 101 issue was not raised by the defendants during the appeal nor even mentioned during oral arguments. While Mayer’s dissent is not a binding opinion, if another judge on the panel signed on to Mayer’s reasoning then the patent would have been held invalid based on an issue not raised during the appeal.

Keurig makes and licenses brewers and beverage cartridges (pods) that are known as “K-Cups.” JBR makes beverage cartridges that are known as “OneCups,” which are made to be used with the Keurig brewers. Back in January 2013, the Court held a Markman hearing, which is a pretrial evidentiary hearing that’s typically held whenever someone alleges patent infringement, and a memorandum and order interpreting certain pertinent terms used in two of the patents at issue was issued in March 2013. The current case deals with JBR’s motions for summary judgment with respect to the issue of infringement of the entire design patent (referred to as the ‘362 patent) and certain specific claims associated with two of the brewer patents (the ‘138 and the ‘488 patents).

From an end-user’s perspective, it shouldn’t matter whether the normalization is done in hardware, in software or in a combination of hardware and software. And from the perspective of an interface designer, one would expect to be able to protect an invention that takes raw data from human input and causes a computer to scroll “intuitively” irrespective of whether implemented in hardware, software or a combination thereof. But therein lies our current §101 case law predicament.

n the case of Bowman v. Monsanto Co., Farmer Bowman may have believed that the “third time” would be “charm.” In two prior cases, Monsanto Co. v. Scruggs[1] and Monsanto Co. v. McFarling,[2] the Federal Circuit had ruled in favor of Monsanto, the owner of the patented Roundup Ready® soybeans, and against Farmer Scruggs and Farmer McFarling. Even so, Farmer Bowman, as probably did his legal counsel, may have believed that the Supreme Court’s 2008 decision in Quanta Computer, Inc. v. LG Electronics, Inc.[3] would undermine the Federal Circuit’s view that patent exhaustion didn’t apply to Monsanto’s patented Roundup Ready® soybeans. But in a unanimous decision, the Supreme Court affirmed the Federal Circuit’s 2011 ruling[4] that Farmer Bowman’s unlicensed planting of these patented Roundup Ready® soybeans (sold for commodity use only) was an infringing use that was not subject to the doctrine of patent exhaustion. Alas, Farmer Bowman found no solace in Quanta.

Nothing has fundamentally changed about the nature of design patents. The first US design patent was granted in 1842. The Statue of Liberty, Coke bottle, Volkswagen Beatle, Stealth Bomber and Star Wars’ Yoda are all protected by design patents. Design patents have long played an important role in consumer electronics, automotive, apparel, jewelry, packaging and other industries. But industrial design is becoming increasingly important, Mr. Kappos explains, because the increasing functionality of man-made devices brings with it increasing complexity, so innovative companies are constantly seeking superior designs, a convergence of form and function that helps make the complex simple and sets their companies apart; and protecting such designs is critical.

“Reverse payment” cases are an outgrowth of a key feature I noted in my first article on the basics of Paragraph IV Certifications: the filing of an Abbreviated New Drug Application (ANDA) by the generic drug maker with a Paragraph IV Certification is treated as a technical act of patent infringement.[2] After receiving notice of the Paragraph IV Certification, the patent owner/NDA holder has 45 days to bring suit, otherwise the FDA can move forward on approving the ANDA.[3] Conversely, if the patent owner/NDA holder does bring an infringement suit within the prescribed 45 day period, the FDA cannot approve that ANDA for 30 months, unless the patent(s) that are the subject of the Paragraph IV Certification are earlier deemed invalid or not infringed in that suit.[4]

Our analysis of the full set of cases across the chosen years confirms what we saw in the smaller sample: patent infringement litigation by patent monetization entities has risen dramatically over a remarkably short period of time. One of the most striking results is the following: in 2012, litigation by patent monetization entities now represents a majority of the patent litigation filed in the United States. Specifically, patent monetization entities filed 58% of the patent lawsuits in 2012. This is a sharp rise from 2007, when patent monetization entities filed only 24% of patent infringement litigations.

Frito-Lay brought a lawsuit against Medallion Foods for allegedly trademark infringement, trade dress infringement, unfair competition, and dilution under United States Trademark Act. Frito-Lay also alleged willful patent infringement under the patent laws of the United States.

In its amended complaint Frito-Lay alleged that Medallion Foods’ tortilla chips result from processes, which infringe one or more claims of United States Patent No. 6,610,344 either literally or under the doctrine of equivalents. Additionally, Frito-Lay contends that Medallion Foods is liable for infringing the ‘344 Patent under U.S.C. § 271, as well as the infringement being willful, entitling Frito-Lay to enhanced damages under §284.

Both sides tried to limit the scope of trial through pre-trial motion practice. On October 4, 2012, Frito-Lay filed a motion for summary judgment on Medallion Foods’ sale or public use affirmative defenses and counterclaims. Frito-Lay “contends that it is entitled to summary judgment because Defendants [Medallion Foods] failed to produce clear and convincing evidence that the chip sold by Frito-Lay in a test market had fluted edges, and all testing of a bowl-shaped chip with fluted edges occurred under confidentiality agreements.” The Court went through a thorough analysis and granted in part, and denied in part the motion.