On Friday March 1, 2013 Judge Lucy Koh handed down her decision regarding various motions that were filed on behalf of Apple Inc. (“Apple”) and Samsung Electronics Co. (“Samsung”) over the past few months post-trial. Specifically, Apple requested additur, supplemental damages, and prejudgment interest, while Samsung moved for a new trial on damages or remittitur. Judge Koh determined that the “Court has identified an impermissible legal theory on which the jury based its award, and cannot reasonably calculate the amount of excess while effectuating the intent of the jury.” The total amount stricken from the jury’s award was $450,514,650 –pending a new trial on damages. The jury awards stands for the remaining 14 products for a total of $598,908,892 in favor of Apple.
Post-trial, Apple requested the Court to increase its damages award for five products because the jury gave an award less than what was calculated by Samsung’s damages expert. However, the Court pointed out that “Apple provide[d] no authority for the argument that the Court should not consider the jury’s specific findings.” Moreover, the Court stated that by doing so would be to violate the longstanding rule that the Seventh Amendment prohibits a judicial increase in a damages award made by a jury. See Dimick v. Scheidt, 293 U.S. 474, 486-87 (1935). Although Apple contends that this rule does not apply in this current case because there is no dispute about the proper amount of damages, the Court quickly and swiftly disagreed. In fact, the Court points out that “[t]he amount of damages is heavily disputed here, as evidenced by extensive testimony provided by both parties concerning the proper amount of compensation.” Additionally, the jury was not bound by either side’s damages testimony and therefore free to evaluate the testimony of both sides’ experts in arriving at its award. The Court denied Apple’s motion for an increase in the jury’s damages.
The U.S. Patent and Trademark Office recently awarded over 200 new claims to Eric Gould Bear, user interface designer, testifying expert witness and co-founder of MONKEYmedia. The four most recently issued patents fall under MONKEYmedia’s “Relativity Controller” family of patents.
Two of the patents issued deal with commonly-used techniques that are utilized with regard to Blu-rays and DVDs to give a viewer a variety of versions of the same film all on the same disc. More specifically, long videos can be abbreviated by viewers who have the ability to choose to pass by any sequence or scene that they want.
Another one of the recently issued patents deals with techniques regarding the auto-summarization of documents that are used in online research tools and various word processor applications. In particular, a user’s search results and/or long documents are shortened by showing only the important portions of content sought by a user based on his or her preferences, and contracting the non-important content.
A patent practitioner prosecuting an application would not normally worry about an issued patent having a much later filing date. The CAFC’s Hubbell decision shows, however, that such a patent can create a problem under the doctrine of obviousness-type double patenting, that prevents the earlier-filed application from issuing.
Hubbell is an inventor of U.S. Application 10/650,509. Hubbell appeals from the decision of the Board of Patent Appeals and Interferences affirming the Examiner’s final rejection of his claims for obviousness-type double patenting over U.S. Patent No. 7,601,685, which also names Hubbell as an inventor. The ‘509 application was filed on August 27, 2003, but claims benefit of a provisional application filed in 1997 when Hubbell was a professor at CalTech. Thus, the ‘509 application is assigned to CalTech.
Hubbell left CalTech and joined the faculty at Eidgenossische Technische Hochschule Zurich (“ETHZ”) in 1998. The application which issued as the ‘685 patent was filed on December 17, 2002 and is jointly assigned to ETHZ and Universitat Zurich. It is undisputed that the ‘509 application and the ‘605 patent do not have identical inventive entities, nor do they have common assignees. It is also undisputed that the ‘685 patent is not available as prior art under 35 USC §§ 102 or 103. The Patent Office concluded that the ‘685 patent claims “are a species of the instantly claimed invention and thus anticipate the claimed invention,” in making its obviousness-type double patenting rejection.
Judge Richard Linn, in chambers at the CAFC Feb. 8, 2012.
This final installment of my interview with Judge Linn of the United States Court of Appeals for the Federal Circuit. In part I of the interviewwe discussed a number of general background issues, including how the Judge got into the field of patent law and became a Judge on the Federal Circuit. In part II of the interview we discussed the Inns of Court and the Richard Linn Inn Alliance, as well as civility (or lack thereof) in litigation.
In this final segment of the interview, which appears below, we move into the issues of the day: the changing patent laws and Supreme Court interest in patents. We also discuss Judge Linn’s decision to take senior status, the fact that he won’t be able to sit en banc unless he was on the original panel, and the Judge’s idea that only few cases really should be designated as precedential opinions.
Senator Ron Wyden was first to submit legislation on unlocking cell phones.
The Digital Millennium Copyright Act (DMCA) has recently become a hot topic in Congress. The renewed interest is the result of a “We the People” petition that successfully reached the required number of signatures to merit a response from the White House. The petition, titled “Make unlocking cell phones legal,” said, “We ask that the White House ask the Librarian of Congress to rescind this decision, and failing that, champion a bill that makes unlocking permanently legal.” The White House fully agreed with the petition, responding, “It’s time to legalize cell phone unlocking,” and adding, “if you have paid for your mobile device, and aren’t bound by a service agreement or other obligation, you should be able to use it on another network.
Within days of the White House’s response, lawmakers were rushing to offer legislative fixes compatible with the petition. Senator Ron Wyden (D-OR) was the first to introduce a bill, the Wireless Device Independence Act (S.467), which would create a permanent exemption for unlocking. Most recently, Senator Patrick Leahy (D-VT) has introduced legislation, cosponsored by four other senators from both parties, that would reverse the Library of Congress’s decision and restore the exemption.
But many proponents of the original petition reacted negatively to these legislative proposals. Derek Khanna, for example, one of the most public advocates of cell phone unlocking, said of the legislation that “the worst … approach would be to simply reverse the decision of the Librarian of Congress and provide a temporary ‘exception’ for three years and let the Librarian rule on this again in three years.”
On February 28, 2013, I spoke at the Association of University Technology Managers (AUTM) annual meeting in San Antonio, Texas. The topic of the panel I participated on was simple — Tech Transfer Needs You to Defend Bayh-Dole. My remarks appear below.
I provide this longer than intended introduction to my remarks at AUTM because I was speaking to a crowd of individuals who know the fact and they understand the truth. I say below that there is not a shred of evidence that supports the detractors, and 100% of the evidence supports those who favor Bayh-Dole and a continuation of University technology transfer that is based on ownership of patent rights. I don’t go through fact by fact what we in the industry all know to be true, which means that the inevitable head-in-the-sand detractors will want to pounce and claim that I am wrong. If you are inclined to disagree with me then read the links above, and read the many other articles we have published on Bayh-Dole. The evidence is overwhelmingly in support of a robust, property based, IPR technology transfer regime that was ushered in by the landmark Bayh-Dole legislation.
First make sure you’re right, then go ahead. ~ Davy Crockett
“The Fall of the Alamo” by Robert Jenkins Onderdonk, 1903.
(Adapted from my talk to the Association of University Technology Managers Annual Meeting in San Antonio, Texas. The meeting coincided with the anniversary of the siege of the Alamo which fell on March 6, 1836.)
The ancient Chinese saying: “May you live in interesting times” was meant as a curse. Well folks, we live in interesting times. We need to recognize it, roll up our sleeves, and get to work. If my parent’s generation could survive the Depression, fight and win World War II, and come home to build the most prosperous nation in history, surely we can meet our tests.
If you’re paying attention at all, you must have noticed that there are forces out there who just don’t like what you do. Some say you’re too focused on making money, some say you’re not focused enough (we really should introduce these folks to each other), some don’t believe it’s moral for universities to work with industry, and many have built very successful careers launching attack after attack on Bayh-Dole and the very patent system itself.
The FTC filed the brief in the matter of Actelion Pharms Ltd. v. Apotex Inc. (Case No. 1:12-cv-05743), which involves allegations that Actelion Pharmaceuticals has prevented Actavis, Apotex, and Roxane from offering competing generic versions of Actelion’s brand drug products, Tracleer and Zavesca, by precluding them from obtaining samples of those drug to perform necessary testing.
In order to receive approval from the Food and Drug Administration, generic firms are required to conduct bioequivalence testing to demonstrate that a generic formulation is therapeutically equivalent to the brand drug. This testing requires access to a limited amount of the brand product. Tracleer (bosentan) is used to treat pulmonary arterial hypertension and Zavesca (miglustat) is used to treat type 1 Gaucher disease, a disorder in which the body does not produce enough of an enzyme to break down fatty substances.
How to Write a Patent Application is a must own for patent attorneys, patent agents and law students alike. A crucial hands-on resource that walks you through every aspect of preparing and filing a patent application, from working with an inventor to patent searches, preparing the patent application, drafting claims and more.
Without hesitation I recommend One Simple Idea and think it should be required reading for any motivated inventor. There is so much to like about the book and so much that I think author Stephen Key nails dead on accurate. The book is educational, information and inspirational. For the $14 cover price it is essential reading.
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