Posts Tagged: "Apple"

This week in Other Barks & Bites: the Federal Circuit issues precedential decisions regarding its authority to remand to the PTAB, patent prosecution history estoppel and expert testimony on motivation to combine for obviousness findings; China nominates its choice for WIPO Director while pledging to reach “social satisfaction” on IP protections by 2025; INTA announces Ayala Deutsch as the organization’s new president; the USPTO seeks public comments on information collection related to national security concerns; the TTAB applies Federal Rules of Civil Procedure to discovery requests; Hewlett Packard shares drop after quarterly revenues fall short of analyst expectations; and the PTAB allows additional briefing in a case after the possibility of Administrative Procedure Act violations were raised by a patent owner.

This week in Other Barks & Bites: the U.S. Patent and Trademark Office issues an updated AIA Trial Practice Guide following SAS Institute v. Iancu; the AM-FM Act is introduced into Congress to update copyright law for terrestrial radio stations; VoIP-Pal.com defeats remaining IPRs challenging its patents at the institution phase; the Copyright Royalty Board announces cost of living adjustments in certain royalty rates; a Senate report shows that U.S. law enforcement didn’t adequately respond to Chinese IP theft for 20 years; China outpaces the rest of the world in terms of blockchain patent filing activities; and Apple joins Intel’s antitrust actions against Fortress Investment Group’s patent assertions.

For weeks now I have been asking the United States Patent and Trademark Office (USPTO) to confirm how many Administrative Patent Judges (APJs) are currently employed by the Office, a request that predates the Federal Circuit’s controversial Arthrex decision, but which was renewed after the decision issued. For reasons that I cannot explain, the Office refuses to provide an answer to what seems to be a straightforward and legitimate question: How many APJs are currently employed by the USPTO? Regardless of the USPTO’s reluctance to identify the number of APJs employed, it seems safe to say that the employment rights and futures of several hundred APJs hang in the balance as the result of the Federal Circuit’s decision in Arthrex, which found that the hiring of APJs violated the Appointments Clause of the U.S. Constitution. The Federal Circuit did, however, attempt to provide a gift to the Office by rewriting the section of the America Invents Act (AIA) they found to create the problem, and by so doing turned APJs into inferior officers. In order to do so, the Federal Circuit turned those uncertain number of APJs into employees-at-will, which allows for them to be fired by the Director of the USPTO. This is significant because certain APJs have not been willing to get on board with changes implemented by Director Iancu. The belief of those APJs who have not been “team players” is that they are judges and are not controlled by and do not answer to Director Iancu. Well, with the Federal Circuit’s decision in Arthrex that employment dynamic changed overnight.

Several weeks ago, the International Trade Commission (ITC) announced that Chief Administrative Law Judge (ALJ) Charles Bullock issued a Notice of Initial Final Determination recommending that certain memory modules manufactured and imported by SK Hynix, Inc. and its subsidiaries should be excluded from importation into the United States. As is common with these announcements, the ITC first released a one-page indication of the decision, which was followed by the redacted full decision once the parties had an opportunity to request redaction of trade secrets and confidential information. The full decision has now been released, and the ITC is asking for comments relating to public interest issues from the parties, interested persons, and other government agencies and departments.

The House Subcommittee on Antitrust, Commercial, and Administrative Law yesterday heard from Joseph Simons, Chairman of the Federal Trade Commission, and Makan Delrahim, Assistant Attorney General in the Department of Justice’s Antitrust Division as part of the Subcommittee’s fourth hearing in its “Online Platforms and Market Power” series. The latest hearing focused on the perspectives of the antitrust authorities, while previous hearings have examined the effects of the big tech companies on innovation and entrepreneurship; online platforms’ effect on a free and diverse press; and the role of data and privacy in competition. While both Delrahim and Simons said they are aggressively investigating and monitoring dominant platforms like Facebook and Google, they warned against overreach. Subcommittee Chair David Cicilline (D-RI) expressed his concern that, over the past decade, the largest tech firms have acquired more than 436 companies, “many of which were actual or potential competitors,” without intervention from antitrust enforcement authorities. The last major monopolization case was brought in 2001 against Microsoft, Cicilline noted. “This has created a de facto antitrust exemption for online platforms.,” he said, questioning whether the failure lies in the need for congressional action to amend and strengthen existing laws, a lack of agency resources to effectively combat the problem, or simply a lack of will to enforce the laws on the books.

Chestnut Hill Sound, Inc. has filed a petition asking the U.S. Supreme Court to consider whether the Federal Circuit’s disparate practice with respect to issuing Rule 36 decisions for losing patent owner-appellants versus losing petitioner-appellants is constitutional. The petition includes statistics demonstrating that patent owner-appellants are three times more likely to receive a Rule 36 judgment than petitioner-appellants. Chestnut Hill’s petition cites statistics on the number of Rule 36 decisions being issued, which come from Larry Sandell’s article, What Statistical Analysis Reveals About Winning IPR Appeals, LAW 360 (August 8, 2019, 5: 22 PM). A footnote in the petition explains that the likelihood of patent owner-appellants receiving a Rule 36 affirmance is actually closer to 3.6 than 3. “Since a losing Patent Owner- Appellant has a 66% chance of receiving a Rule 36 opinion, and a losing Petitioner- Appellant has an 18% chance of receiving a Rule 36 opinion, a Patent Owner- Appellant is 3.6 times as likely to receive a one- word affirmation than a Petitioner- Appellant,” says the petition.

This week in Other Barks & Bites: the Trump Administration sues Gilead for infringement over HIVE PrEP treatment patents; Senators Inhofe and Wicker ask President Trump to show no leniency on Chinese IP theft; the Supreme Court hears the Allen v. Cooper copyright appeal; the Federal Circuit issues precedential opinions on PTAB evidence admissibility and limitation in patent claim preamble; the Copyright Office says that its digital recordation pilot project is on track for Spring 2020; the PTAB Precedential Opinion Panel (POP) will review the Board’s rejection of substitute patent claims in a motion to amend; “This Is Spinal Tap” creators settle copyright suit; and T-Mobile announces December launch for nationwide 5G network.

On October 16, the U.S. Patent and Trademark Office (USPTO) issued two decisions granting renewed petitions filed by patent owner VirnetX to terminate inter partes reexamination proceedings at the USPTO that were petitioned by consumer electronics giant Apple. The decisions terminating the reexaminations with respect to many of VirnetX’s patent claims are based on estoppel provisions arising from the previous adjudication of infringement findings against Apple upheld on appeal to the U.S. Court of Appeals for the Federal Circuit. VirnetX’s success on its recent petitions to terminate reexamination proceedings is the latest bit of positive news for the patent owner in a legal battle which has taken many turns since VirnetX won $368 million in a district court infringement case against Apple back in November 2014.

The Patent Trial and Appeal Board (PTAB) recently issued its first-ever preliminary guidance on motions to amend claims filed by patent owner Sanofi and, although the substituted claims haven’t escaped an obviousness challenge from Mylan, patent owners might be able to use that guidance as a roadmap for their own motions to amend claims. In other PTAB decisions between October 1 and 16, USAA escaped covered business method (CBM) reviews based on the technological invention exclusion, NHK Spring factors led the PTAB to deny two inter partes reviews (IPRs) petitioned against TRUSTID patents, oral hearings were held in Apple’s IPRs against Qualcomm, despite the patent settlement agreement between the two firms, and NuCurrent failed to avoid Samsung IPRs after arguing issue preclusion based on district court litigation of a forum selection clause in a contract between the two companies.

The Federal Circuit on October 8 issued a formal mandate in VirnetX, Inc. v. Cisco Systems and Apple, Inc., making its January 15, 2019 Rule 36 judgment against Apple final. The mandate comes after the Court’s denial on October 1 of Apple’s motions to stay and vacate the August 1 decisions affirming-in-part, vacating-in-part, and remanding a decision of the Patent Trial and Appeal Board (PTAB), and separately denying Apple’s August 1 request for rehearing en banc in its appeal from the U.S. District Court for the Eastern District of Texas ruling awarding VirnetX nearly $440 million.

The spectacular failure of blood-testing firm Theranos is the subject of a riveting book, Bad Blood by investigative reporter John Carreyrou, and an engaging documentary, “The Inventor” on HBO, focusing on Elizabeth Holmes, the once-celebrated wunderkind who dropped out of Stanford at age 19 to “change the world” with a device that would perform hundreds of diagnostic tests with a few drops of blood from a finger stick. It’s a story made for Hollywood (Jennifer Lawrence will play Holmes in the forthcoming movie), filled with lies, deception, threats and sex, set in a Silicon Valley startup. But even the Theranos story doesn’t mean that trade secret law is inherently dangerous. Consider Apple, one of the world’s most secretive companies. (Holmes famously modeled her clothing and business habits after Steve Jobs.) Apple has consistently used NDAs and secrecy management to protect products under development, to great effect when they are ultimately unveiled, all without touting non-existent technology. And it’s easy to imagine how Theranos might never have happened if investors and business partners had been less credulous and more insistent to understand the technology.

Last week the United States Court of Appeals for the Federal Circuit issued an important decision that might be easy to overlook. In Intellectual Ventures I LLC v. Capital One Financial Corporation, the Federal Circuit dodged the antitrust question presented by finding that a prior ruling had collateral estoppel effect. Still, the arguments raised by Capital One against Intellectual Ventures are part of a disturbing trend. Unwilling licensees who engage in a scheme of efficient infringement to avoid paying for patent licenses are increasingly looking to creative antitrust theories to escape liability for their actions. Efficient infringement is a cold-hearted business calculation whereby businesses decide it will be cheaper to use patented technology without paying than to license it and pay a fair royalty to the patent owner. This calculus is made on the part of large entities who realize there are a certain number of patent owners that are just simply not going to assert their patents for one reason or another, frequently because they don’t have the money to do so. Then there is another group of those that will assert their patents but will not win. The calculation progresses to realize that there is a small group of those who are likely to both assert patents and prevail, thanks to all the hurdles put in place (i.e., patent eligibility challenges, the Patent Trial and Appeal Board, etc.). The calculation further recognizes that even if a patent owner prevails, a permanent injunction is virtually impossible to obtain as the result of the Supreme Court’s decision in eBay v. MerchExchange, and damages are likely to be minimal thanks to a continual judicial erosion in damages available to victorious patent owners. This cold-hearted business approach to using intellectual property without paying has gone on for decades, but with the weakened state of the U.S. patent system since 2006, it has grown progressively worse.

The bipartisan STRONGER Patents Act of 2019 took an important step forward last week, as the Senate Judiciary Subcommittee on Intellectual Property held a hearing on the proposed legislation. Senators Tillis and Coons, the Subcommittee’s Chairman and Ranking Member, should be commended for holding the hearing and focusing attention on our patent system’s role in promoting American innovation and job creation. As several of the hearing witnesses made clear in their testimony, our patent system has been dangerously weakened in recent years through a series of judicial, legislative, and administrative changes. These changes have undermined patent rights and made it difficult for inventors to protect their innovations from infringement. Meanwhile, our foreign competitors, including China and Europe, have strengthened their patent rights. This has put us at a competitive disadvantage and helped contribute to a trend of both innovation and venture capital increasingly moving overseas. For example, the U.S. share of global venture capital fell from 66% in 2010 to 40% in 2018, while China’s share increased from 12% to 38% in the same time period. And despite more than a decade of economic growth following the Great Recession of 2007-2009, startup formation has failed to return to its pre-recession levels.

SPIP Litigation Group, LLC v. Apple, Inc. and Cisco Systems, Inc., No. 19-253., concerns four patents that have been the subject of decisions by the Patent Trial and Appeal Board (PTAB) and the Federal Circuit. More than 25 lawyers have participated in the litigation. The briefs and evidence in the trial court covered more than 2,500 pages. My client, on appeal from an adverse summary judgment, did not contend that the factual record failed to support that result. My client raised only two legal issues when it appealed to the Federal Circuit from the district court’s decision that the patents were not infringed. The appeal briefs covered 202 pages. Three Federal Circuit judges heard oral argument and issued their decision 12 days later. It read: “AFFIRMED. See Fed. Cir. R. 36.” Did the judges understand the technology any better than I do? No one can tell. Did my client deserve some explanation, even if exceedingly concise, from the judges? The petition I have now filed with the Supreme Court claims that the Federal Circuit judges deprived my client of a constitutional right by declaring, “You lose, but we won’t tell you why.”

On August 21, the Intellectual Property Office of Singapore (IPOS) announced the release of its official app for mobile devices, titled IPOS Go, to the Apple App and Google Play stores. Among the services offered through the app are trademark filing services, making this particular app the world’s first for enabling the filing of trademark registration documents from a mobile device. IPOS expects that the introduction of this mobile app will help facilitate a growing number of trademark applications; the agency notes that trademark applications in Singapore have increased by 30% over the past five years. As reported by ZDNet, IPOS took in 50,035 trademark applications and registered 37,030 trademarks during 2017. A little over 20% of both filed applications and trademark registrations that year belonged to domestic entities in Singapore. The top foreign filers of trademark applications into Singapore included Amazon Technologies and Apple.