Posts Tagged: "patent"

District court and Patent Trial and Appeal Board (PTAB) patent filings were at roughly steady-state again this week, with 36 PTAB petitions and 75 new patent infringement district court complaints. Many of those PTAB filings were part of the Apple/Masimo spat, with Apple filing eight challenges. At least five patent owners walked away from their patents, including Lighthouse, a non-practicing entity that had sued most of America’s banks, primarily in the Western District of Texas, over check software before losing an important claim construction proceeding.

In late July, water bottle maker Hydro Flask and parent company Helen of Troy Limited filed a complaint with the U.S. International Trade Commission (ITC) asking the agency to institute a Section 337 investigation against a series of 25 respondents, most of which are located in China, over their alleged infringement of Hydro Flask’s trademarks and design patents. The legal action highlights the difficulties being faced by many American brand owners during the COVID-19 pandemic and how Congressional action could help to ensure that these small businesses are able to effectively enforce their IP to prevent counterfeit imports.

On September 4, the United States Court of Appeals for the Federal Circuit (CAFC) modified and reissued its March 18, 2020 opinion in Facebook v. Windy City Innovations, LLC, following Facebook’s combined petition for panel rehearing and rehearing en banc. In the March 18 opinion, the CAFC ruled that the Patent Trial and Appeal Board (PTAB) erred both in allowing Facebook to join itself to a proceeding in which it was already a party, and in allowing Facebook to add new claims to the inter partes reviews (IPRs) at issue through that joinder.

On August 28, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed the U.S. District Court for the District of Massachusetts’ claim construction in Egenera, Inc. v. Cisco Systems, Inc., but vacated the court’s invalidity judgment based on judicial estoppel and remanded for further proceedings. Egenera, Inc. (Egenera) owned U.S. Patent No. 7,231,430 (the ’430 patent), which was based on a provisional patent application filed in 2001 and was directed to a platform for automatically deploying a scalable and reconfigurable virtual network. In 2016, Egenera filed suit against Cisco in the district court for infringement of the ’430 patent. Cisco then filed an inter partes review (IPR) Petition with the United States Patent and Trademark Office’s (USPTO) Patent Trial and Appeal Board (PTAB) challenging the validity of the asserted claims.

Patent challenges are an indispensable part of the drug approval process under the provisions of the Hatch-Waxman Act (Hatch-Waxman). To gain early market access, multiple types of invention claims, ranging from compositions to method of use and from combinations to “kits”, are frequently challenged under the Hatch-Waxman provisions by abbreviated new drug application (ANDA) filers. However, challenges to claims for chemical compounds are quite rare compared to claims for other types of inventions. Though the overall approach for challenging any patent/claim remains broadly similar, a compound claim challenge involves a relatively different approach compare to other types of invention claims involved in the Hatch-Waxman context. The chief difference is the types of art that may be available for citation.

The United States Court of Appeal for the Federal Circuit recently upheld the Central District of California’s ruling of summary judgment that certain accused products of Foundation Constructors, Inc. and Foundation Pile, Inc. (Foundation) do not infringe certain claims of U.S. Patent Nos. 7,914,236 (the ’236 patent) and 9,284,708 (the ’708 patent) (collectively, the patents-in-suit) after plaintiffs-appellants Steve Neville, Substructure Support, Inc., and TDP Support, Inc. (collectively, Substructure) appealed the district court’s ruling, as based on an improper claim construction. See Neville v. Found. Constructors, Inc., No. 2020-1132, 2020 U.S. App. LEXIS 27321 (Fed. Cir. Aug. 27, 2020) (Before Lourie, O’Malley, and Chen, Circuit Judges) (Opinion for the Court, Chen, Circuit Judge).

Two weeks before the Transitional Program for Covered Business Method Patents (CBM) Program, implemented in 2012 under the America Invents Act (AIA), is set to expire, a special interest group dubbed the “Quality Patents Coalition”, is reportedly urging Congress to extend the program for one year. The CBM program is currently set to expire on September 16, 2020. In June, in response to reports of the imminent request for an extension, a number of organizations submitted a letter to Senator Thom Tillis (R-NC) arguing that “CBM should expire of disinterest, if not to eliminate a proceeding of questionable use, of illegitimate vintage, and of unjust intent.”

Software is an extremely valuable good for those who produce it because it provides value to the software’s end users. That value, however, also makes it a target for those who would prefer to obtain the value without compensating the software producer. As a result, like with any valuable asset, software suppliers and Internet of Things (IoT) companies must implement safeguards to protect it. Since software is intellectual property, attorneys who work for or advise software producers (which, let’s be honest, is just about every technology company these days, given the addition of hardware manufacturers via the ubiquity of their “smart” devices to the existing desktop, mobile, and SaaS applications that we all use in both our personal and business lives), are frequently asked to advise on how to best protect this valuable asset. Unfortunately, as discussed below, most lawyers only deliver half of what they should.

Headlining day two of IPWatchdog’s CON2020 was Retired U.S. Court of Appeals for the Federal Circuit (CAFC) Chief Judge Paul Michel, who offered attendees 12 “perspectives” on the present-day Federal Circuit to provide context for some of the Court’s current problems. Ultimately, said Michel, these problems need to be fixed via legislation, not the courts, and the key to speeding up that legislative process is for individuals and companies to become involved and proactively advocate for patent reform at the local level.

District court and Patent Trial and Appeal Board (PTAB) patent filings were steady this past week, with 31 PTAB petitions and 78 new district court complaints. Many of those PTAB filings were part of the Lenovo/Interdigital spat, with the device maker filing challenges. The district court filings were propped up by a significant number of IP Edge suits, as detailed below; and Facebook challenged (so far) four of six patents asserted against them by a streaming media platform company for (effectively) their conferencing software/ability.

Everyone agrees that the 2014 Alice v. CLS Bank decision dramatically changed courts’ approach to patent eligibility analyses under Section 101. Six years later, the Federal Circuit has issued enough opinions on the issue to allow for quantitative analysis to aid patent practitioners before that venue. We gathered our data set by reviewing every Federal Circuit decision addressing Section 101 since the Supreme Court’s Alice ruling. We tracked the judges’ individual Step 1 and Step 2 votes in each case and the ultimate panel decisions. We also recorded the opinions’ authors and the authors of any dissents, and which decisions were per curiam. Numerous cases involved independent analyses of different groups of claims. In those circumstances, we coded the votes on each claim or group separately. As a result, some cases ended up with multiple votes by a single judge being recorded on both Step 1 and Step 2.

U.S. Patent and Trademark Office (USPTO) Director, Andrei Iancu, joined day one of Virtual CON2020 today to chat with IPWatchdog CEO and Founder Gene Quinn about topics including counterfeiting, Chinese IP theft, and the continued confusion in the courts and at the Patent Trial and Appeal Board (PTAB) around patent eligibility. On the topic of Section 101 and patent eligibility, Quinn lamented the recent American Axle decision, wondering if the holding that an invention involving a drive shaft could be considered directed to a law of nature represents a broader and growing disrespect for intellectual property. Iancu could not comment on the case itself, but said that with respect to the basic principle, “you’re absolutely right.

On August 27, the United States Court of Appeals for the Federal Circuit (CAFC) reversed and remanded a decision of the U.S. District Court for the District of Delaware in Baxalta Inc. v. Genentech, Inc. The CAFC reversed the district court’s claim construction of the terms “antibody” and “antibody fragment” in Baxalta’s patent claims and remanded for proceedings consistent with the correct constructions.

The Federal Circuit recently affirmed a decision by the U.S. District Court for the Northern District of California dismissing a complaint for patent infringement on the grounds of res judicata. See Sowinski v. Cal. Air Res. Bd., No. 2019-1558, 2020 U.S. App. LEXIS 26616 (Fed. Cir. Aug. 21, 2020) (Before Newman, Lourie, and Schall, Circuit Judges) (Opinion for the Court, Newman, Circuit Judge). On November 24, 2015, Dr. Richard Sowinski, the owner of Patent No. 6,601,033 (the ’033 patent), sued the California Air Resources Board (CARB) and several individual and corporate defendants for infringement of the ’033 patent. After Dr. Sowinski failed to file a response to several motions to dismiss, the district court dismissed the complaint with prejudice and without leave to amend pursuant to Central District of California Local Rule 7–12. On appeal, the Federal Circuit affirmed the dismissal, concluding that the Central District of California had considered all of the relevant factors and that there was no clear error of judgment.