Posts Tagged: "Patent Litigation"

In Helsinn Healthcare S.A. v. Teva Pharms. USA, Inc., the Federal Circuit reversed the district court and held that Helsinn’s pre-AIA patent claims, “were subject to an invalidating contract for sale prior to the critical date,” and furthermore, “the AIA did not change the statutory meaning of ‘on sale’ in the circumstances involved here.” The asserted claims of the post-AIA patent were also ready for patenting prior to the critical date… The on-sale bar, before and after the AIA, does not require a finding that the offer or sale disclosed the details or claimed features of the invention, so long as the product embodies those features when sold. An invention is reduced to practice, and ready for patenting, when it is reasonably shown to work for its intended purpose, which for a pharmaceutical product is not contingent upon FDA approval.

The Federal Circuit held that the claim was directed to the abstract idea of encoding and decoding image data. According to the panel, the claim recited “a method whereby a user displays images on a first display, assigns image codes to the images through an interface using a mathematical formula, and then reproduces the image based on the codes… This method reflects standard encoding and decoding, an abstract concept long utilized to transmit information.” The Federal Circuit went on to note under step one that RecogniCorp’s Claim 1 differed from the invention in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) because, unlike Enfish’s invention, Claim 1 did not recite a software method that improved the functioning of a computer but instead recited a process “for which computers are invoked merely as a tool.”

One of the key findings is that only 938 patent infringement actions were filed in district courts during the recent quarter, a total which is the lowest for a single quarter since the third quarter of 2011 when only 921 such cases were filed… The U.S. District Court for the Eastern District of Texas (E.D. Tex.) remains the most active court for patent infringement suits, receiving one-third of all patent infringement cases filed in 2017’s first quarter.

In last year’s decision in Eon Corp. IP Holdings LLC v. Silver Spring Network, Inc. 815 F.3d 1314, 1320 (Fed. Cir. 2016), the Federal Circuit reversed the District Court’s jury instruction that the terms “portable” and “mobile” should be given their “plain and ordinary meaning.” During claim construction at the District Court, Eon argued that “portable” and “mobile” did not need construction and that the terms could simply be given their plain and ordinary meaning. Id. at 1317. Silver Springs argued that the terms ought to be construed, but the District Court agreed with Eon and found that the meanings of those terms are clear and would be readily understandable to a jury. Id. However, the Federal Circuit held that a determination that a particular term needs no construction may be inadequate when a term has more than one meaning.

Unified Patents is a relatively new form of patent troll that works as a “Troll of Trolls” or “ToT.” They file IPRs (inter-partes reexamination requests) to kill patents. While they purport to only attack “bad patents,” their definition of a “bad patent” is simply any patent asserted against their clients. So who are their clients? Good question – that is a large part of the problem. They keep most of their clients’ identities secret. Unified does identify a handful of their members on their website such as Adobe, Google, NetApp, Roku, and Salesforce… But China is different. Here, a mercenary third party attacking innovation via patents is problematic. China, unlike America, has made innovation a top priority. China’s government has also, over the last few years, created the best patent enforcement environment in the world.

IntegraSpec was denied the opportunity to make its case here because of collateral estoppel based on the reasoning that they already had a full and fair opportunity to litigate the dispute. What exactly does “full and fair” mean? Figuring out what the means in the context of Rule 36 disposals is complicated. We do know, however, what “full and fair” cannot mean. The term “full and fair” cannot mean “equal.” While the Federal Circuit continues to want to say that cases decided using the Rule 36 summary mechanism are “no less carefully decided,” the fact is that litigants in Rule 36 cases receive less consideration by the Court; this truth is factually indisputable. It takes a certain amount of time to decide the answers to the questions presented, but it also takes a certain amount of time to explain those answers in a written decision. To think the act of writing the decision is purely ministerial and makes no difference strikes me as pure nonsense.

We analyzed all of the packages in our database to look at the use of the assets after receipt of the package by the broker. Because we used a better source of US litigation and inter partes review data this year, it makes it impossible to compare our results to our previous year’s analysis. Focusing on package-level analysis for packages received in the market years from 2012 to 2016, and looking for packages with at least one litigation or inter partes review as of October 2016, we found that the sold packages are litigated and inter partes reviewed to a greater degree than packages generally.

Rembrandt sued Samsung for patent infringement in the Eastern District of Texas and convinced a jury that Samsung infringed its two asserted patents, awarding $15.7 million in damages. Samsung appealed claim construction, denial of JMOL of obviousness, a Daubert motion on a damages expert, and the refusal to limit damages. The Federal Circuit agreed with the district court’s claim construction and its denial of Samsung’s JMOL motions, affirming those decisions… The Federal Circuit vacated because allowing Rembrandt to “avoid the consequence of its failure to mark undermines the marking statute’s public notice function.” The Federal Circuit remanded to the district court to properly limit damages, and also remanded the question of whether the marking statute applies on a patent-by-patent or claim-by-claim basis because the parties had not squarely addressed the issue during the present appeal.

The Federal Circuit affirmed a Patent Trial and Appeal Board (“Board”) decision finding a patent owned by Novartis AG and Mitsubishi Tanabe Pharma Corp. (collectively “Novartis”) to be unpatentable as obvious… Refusal by the Board to institute an IPR based on a particular reference does not necessarily preclude the Board from relying on that reference as additional support for a motivation to combine other references. Separate patentability arguments for dependent claims must be clearly argued lest they stand or fall with parent claims. A nexus for non-obviousness due to commercial success must clearly flow from the patented invention and not from subject matter known in the prior art.

A Federal Circuit Rule 36 judgment can be a valid and final judgment for purposes of preclusive effects. Additionally, district court findings affirmed by a Rule 36 judgment can have preclusive effect as long as each is “necessary” to the final appellate judgment. The Federal Circuit did not address the Circuit split regarding the preclusive effect of independent, alternative holdings.

Core Wireless sued Apple for infringing its patent directed to a cellular network system including a mobile station providing for improved transmission of data packets. The jury found that Apple did not infringe Core Wireless’ patent. At issue on appeal is whether the district court misapplied the magistrate judge’s pretrial claim construction and whether the claim construction adopted by the district court when ruling on Core Wireless’ JMOL was erroneous… Ultimately, the Court concluded that the district court correctly denied Core Wireless’s motion for judgment as a matter of law and properly upheld the jury’s verdict of noninfringement.

Because patent trolls prefer filing in the Eastern District of Texas, the thinking goes that it will be a significant blow to patent trolls if the Supreme Court does not agree with the Federal Circuit. In other words, the days will be numbered for patent trolls if the Supreme Court determines that Congress did not expanded patent venue with the 1988 amendment that made the statutory definition of corporate residence found in § 1391 applicable to patent cases. That conventional wisdom is wrong!… Reflection Code has brought patent infringement actions in the Eastern District of Texas, but on March 31, 2017, Reflection Code brought two separate patent infringement lawsuits in the Eastern District of Michigan — one against Bissell, Inc. and the other against Mattel, Inc.

If the patent owner intends claim terms to have a special meaning, the patent must provide a clear disavowal of ordinary meaning or an alternative lexicography. Otherwise, the patent owner can expect to obtain the full scope of the term’s plain and ordinary meaning. Ordinary meaning also may yield to context, as where “sequence” may include “one bit,” not “at least two.” The Court also stresses that anticipation requires that a single reference “describe the claimed invention with sufficient precision and detail to establish that the subject matter existed in the prior art.” Ambiguous references do not anticipate a claim.

On appeal, Novartis argued that the PTAB unlawfully reached different conclusions than the Federal Circuit and U.S. District Court for the District of Delaware in addressing the “same” arguments and the “same” evidence… The Court stated that “Novartis’s argument fails on factual and legal grounds.” First, the record in front of the PTAB differed from that of the prior litigation, meaning that Novartis’ argument rests on a “faulty factual predicate.”… “Nevertheless, even if the record were the same, Novartis’s argument would fail as a matter of law.” The PTAB reviews patentability under the “preponderance of the evidence” standard. See 35 U.S.C. § 316(e). District court litigation requires “clear and convincing” evidence. Therefore, “the PTAB may properly reach a different conclusion based on the same evidence.”

On April 6, 2017, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in The Medicines Company v. Mylan, Inc. (2015-1113, 2015-1151, and 2015-1181) that imports certain subject matter from the specification into the claims… This case provides some key takeaways for patent practitioners, some more obvious than others. First, as has been known for some time, referring to the “invention” in a patent’s specification can hurt, as can indicating that a particular process “includes all” of the embodiments the specification describes. This is why patents for inventions in the U.S. now curiously, if understandably, usually avoid using the word “invention”. Also, setting forth definitions in a specification can have unintended consequences not just for the term being defined but also for terms that are not explicitly defined even if unequivocally characterized in some other way. Prosecution history also matters too, particularly where an applicant distinguishes its invention during prosecution by explicitly characterizing “the invention” in terms divorced from the language of the claims themselves.