Posts Tagged: "direct infringement"

On appeal, the Ninth Circuit panel found that the district court had properly dismissed both the direct and the contributory infringement claims with prejudice. Although Cobbler Nevada had established a connection between Gonzales and the offending IP address, establishing a claim of copyright infringement required the plaintiff to show that the defendant himself violated the plaintiff’s exclusive rights under the Copyright Act. Citing to the Supreme Court’s standards for pleading under Iqbal/Twombly, the Ninth Circuit determined that this claim involved a situation where the facts pled by the plaintiff stopped short of the line “between possibility and plausibility of entitlement to belief.”

But did Judge Reyna really fail to understand the importance that a web page and the page server are not the same thing as the Federal Circuit adjourned to deliberate? Did he and the other judges on the panel continue to have this important, yet fundamental misconception during deliberations? Did the reality that a web page and a page server are not the same thing become appreciated and understood by the Federal Circuit panel, or did this fundamental misconception perpetuate itself up to and through the decision making process? Did counsel for IBM managed to mislead the panel? Did the panel even realize that IBM had made the exact opposite argument about WebSphere technology at the district court? The sad, and rather inexplicable reality is it is impossible to know whether the Federal Circuit was mislead, simply didn’t understand the technology, or was even hoodwinked.

Patent owner MOAEC Technologies filed suits alleging claims of patent infringement in the District of Delaware against a series of music entertainment app providers including Spotify, SoundCloud and Deezer. The suits claim that music services offered by all three defendants infringe upon a patent covering a music library collection technology invented by the founder of MOAEC… MOAEC’s suits also include language in an apparent attempt to preempt any patent validity challenges under 35 U.S.C. § 101, the basic statute governing the patentability of inventions, under the Alice/Mayo framework.

Nalco asserted that the only difference between its patented method and the Chem-Mod Process was the location of the injection. The district court dismissed Nalco’s complaints for failure to state a claim, including its Fourth Amended Complaint (“4AC”) at issue in the present appeal… The Federal Circuit, in an opinion authored by Judge O’Malley, rejected Defendants’ argument that Nalco’s direct infringement claims were implausible and instead agreed with Nalco that the resolution of its claims depended on the construction of the terms “flue gas” and “injecting.” Resolution of this claim construction dispute was inappropriate at the Rule 12(b)(6) stage of the proceedings.

The key issue in the present appeal, in light of Akamai V, is whether TSA’s performance of the final two steps of the patented method claims can be attributed to Travel Sentry, such that Travel Sentry is responsible for infringing the relevant claims… Under Akamai V, direct infringement under § 271(a) occurs where all steps of a claimed method are performed by a single entity. When more than one actor is involved in practicing the steps, the court considers whether the acts of one entity are attributable to the other such that a single entity is effectively responsible for the infringement. An entity will be held responsible for another’s performance of method steps where it directs or controls that performance. This is a question of fact.

On November 28 the parties requested an extension of the temporary stay, explaining: “The parties are still actively engaged in settlement discussions but require additional time to potentially resolve this matter.” A date of December 18, 2017, was jointly proposed for either the filing of a stipulated dismissal or joint status report. The District Court granted this extension on November 29, 2017… These requests for temporary stay follow a jury verdict issued in the case on August 3rd, which awarded reasonable royalties to both Philips and ZOLL for infringement of patents asserted by both parties in the case. That verdict awarded Philips a total of $10.4 million for infringement of three patents, while ZOLL was awarded a reasonable royalty of $3.3 million for two patents it asserted in the case.

Lifetime Industries, Inc. v. Trim-Lok, Inc., 2017-1096, (Fed. Cir. Sept 7, 2017) is an appeal involving a dispute over the correct pleading standard in the context of allegation of infringement of a patented product.  The appeal resulted in the reversal of a district court’s final judgment granting Trim-Lok, Inc.’s motion to dismiss Lifetime’s complaint for failing to adequately allege that Trim-Lok either directly or indirectly infringed claims of its U.S. Patent 6,966,590 (’590 patent)… In sum, the Federal Circuit opinion in Lifetime is a good refresher on sufficiency of facts needed for filing a complaint alleging patent infringement. It is a refresher also on proving infringement resulting from assembly of components to make the claimed product when not all of the components are made by the same party.

A party need not prove its infringement case with detailed facts at the pleadings stage. For direct infringement, it is sufficient to identify where the alleged infringement occurred, when it occurred, who performed the allegedly infringing act, and why. For induced infringement, the pleadings must also allege an intent to infringe. For contributory infringement, it is sufficient to plead that the alleged infringer had knowledge, not necessarily intent, that its activities would lead to infringement.

The standards for overturning a jury verdict and Court’s award of enhanced damages are high. The legal standard regarding lost profits is not limited to one third party sale and courts have discretion to determine if substantial evidence supports a finding of lost profits.

The UK Supreme Court recently addressed the extent to which under the European Patent Convention 2000 (“EPC 2000”), a patentee may obtain protection against products or processes that are not covered by the literal meaning of the claims. In doing so, the UKSC modified what had been previously seen as the established approach of the UK courts towards ‘equivalents’. In particular, while not disapproving the test, the Court has chosen to reformulate the three “Improver” questions that, since 1990, have been in common usage for aiding determinations as to what might constitute patent infringement… The UKSC has concluded that subsequent to the Improver decision, which was then reinforced by the judgment in Kirin-Amgen, there has been a tendency by the UK courts to place “..too much weight on the words of the claim…” and what the patentee might have anticipated or intended. Instead, the UK courts should have focused on whether, on a basis of fact and expert evidence, the variant is a true equivalent of the invention as described in the patent.

Lifenet’s patent is for plasticized soft tissue grafts used for transplantation in humans. The specification discloses that plasticizers can be removed before implantation, although they need not be, as claim 1 discloses three options for the implanting technician, one option being direct implantation without removing plasticizers. LifeCell’s accused grafts are preserved in a solution prior to implantation, and it is undisputed that significant amounts of plasticizers are removed during this soaking process. During claim construction, the parties disputed the meaning of the term “non-removal.” The district court concluded that construction of this term was unnecessary because it was easily understood by a person of ordinary skill in the art to have its plain meaning.

Akzo appealed from the decision of the district court (Chief Judge Leonard Stark) to grant summary judgment to Dow, which found that Dow did not infringe the claims of U.S. Patent 6,767,956, either literally or under the doctrine of equivalents. Dow also cross-appealed from the district court’s conclusion that the claims of the ’956 patent were not indefinite. Ultimately, the Federal Circuit affirmed the district court on both appeals.

The Court agreed, noting testimony from Cisco’s engineer who stated that the system needed only one copy of the protocol to support all devices. Commil’s expert opined that the protocol was a state machine, and since Cisco’s devices tracked separate information regarding their communication states, each communication state represented a copy of the protocol that was unique. The Court disagreed, finding that tracking separate states for each device was not substantial evidence that each device ran a separate copy of the protocol.

The United States District Court for the Southern District of Indiana ruled in favor of Eli Lilly (NASDAQ: LLY), issuing a final judgment in the Hatch-Waxman infringement litigation relating to U.S. Patent No. 7,772,209. This matter arose as the result of the defendants’ filing of Abbreviated New Drug Applications (ANDAs) with the Food and Drug Administration (FDA). The ‘209 patent, covering a method of use, protects the co-administration of pemetrexed disodium with two nutrients – folic acid and vitamin B12, which protects against the side effects of the drug Alimta®. The district court found direct infringement by administering physicians under § 271(a), and thus inducement of infringement by Defendants under § 271(b).