Posts Tagged: "Patent Litigation"

Talk about snatching victory from the jaws of defeat! That is precisely what the Federal Circuit did for HEC Pharm Co. recently in Novartis Pharmaceuticals Corp. v. Accord Healthcare Inc. et al (No. 2021-1070). In what can only be characterized as an astonishingly unprecedented procedural betrayal of justice, Novartis recently found itself on the losing side of a request for panel rehearing. Save for a moment just how extraordinarily uncommon it is for the Federal Circuit to grant panel rehearing, and likewise save for a moment how extremely uncommon it is for the Federal Circuit to overrule a prior panel decision even when a panel rehearing is granted. But in Novartis Pharmaceuticals v. Accord Healthcare, neither of the panel members in the majority of the original opinion even agreed to rehear the case, let alone agreed to reverse their prior ruling.

The U.S. Court of Appeals for the Federal Circuit (CAFC) ruled today in Thaler v. Vidal that an artificial intelligence (AI) machine does not qualify as an inventor under the Patent Act. The decision is the latest in a series of rulings around the world considering the topic, most of which have found similarly. Judge Stark authored the opinion.

On August 3, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a decision in A. O. Smith Corp. v. Bradford White Corp. which affirmed rulings from the District of Delaware that A. O. Smith’s patent covering a hot-water heater system was both infringed by Bradford White and not invalid. The appellate court ruled that the district court’s construction of a contested limitation within claim 1 was supported by the patent’s specification. Judge Timothy Dyk concurred with the majority’s ruling but argued that the majority should have based its decision to affirm claim construction on evidentiary findings made by the district court.

The only president ever to obtain one, Abraham Lincoln knew the essential role patents have played in the scientific and technological innovations that have driven American growth and prosperity since the founding of the republic. Lincoln listed the development of patent laws—along with the invention of writing and the discovery of America—among the most important events in world history. Patents have “peculiar value…in facilitating all other inventions and discoveries,” he said in a speech in 1858. Giving inventors exclusive use of their inventions for a limited time, “added the fuel of interest to the fire of genius in the discovery and production of new and useful things.” What was true a century and a half ago remains true today. But a recent ruling by the U.S. Court of Appeals for the Federal Circuit is threatening to bank the fire and limit the inventions of the future. Last August, a three-judge Circuit Court panel invalidated Sloan Kettering’s patent for its CAR T-cell cancer immunotherapy and overturned the $1.2 billion awarded Sloan Kettering and its partner and exclusive licensee, Juno Therapeutics, after a jury trial found Kite Pharma had infringed upon the patent. The court, en banc, refused to reconsider the ruling.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Tuesday affirmed a Patent Trial and Appeal Board (PTAB) ruling that Samsung Electronics had failed to prove certain claims of Dynamics, Inc.’s patent for a magnetic stripe emulator that communicates with credit card readers unpatentable as obvious. Samsung petitioned the PTAB for inter partes review (IPR) of claims 1 and 5-8 of U.S. Patent No. 8,827,153. The patent is directed to “magnetic stripe emulators” for “generat[ing] electromagnetic fields that directly communicate data to a read-head of a magnetic stripe reader,” such as the magnetic stripes on credit cards. Samsung argued that the claims would have been obvious over U.S. Patent No. 4,868,376 (Lessin) and U.S. Patent No. 7,690,580 (Shoemaker), or alternatively, would have been obvious over U.S. Patent No. 6,206,293 (Gutman) in view of Shoemaker.

The U.S. Court of Appeals for the Seventh Circuit agreed with a district court earlier this week that neither a settlement agreement between AbbVie and a number of generic biologics companies, nor the 132 patents owned by Abbvie covering its blockbuster drug, Humira, violate the Sherman Antitrust Act. This holding, which is significant in its own right, also has broader implications for patent-antitrust analysis.

To succeed on a claim of induced infringement, a patent owner must show that the accused infringer (1) actively encouraged infringement, (2) knew that the acts they induced constituted patent infringement, and (3) actuated direct patent infringement by those encouraging acts. In many courts, the knowledge requirement can be satisfied by service of a complaint for patent infringement itself. So, the accused infringer can start to incur liability at the onset of litigation. In the minority of courts, only pre-suit knowledge can satisfy the knowledge requirement. In those jurisdictions, the plaintiff must show the accused infringer knew about the alleged infringement before the onset of litigation. The amount of evidence required to show pre-suit knowledge at the pleading phase is an open question.

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Thursday reversed a district court’s denial of judgment as a matter of law (JMOL) to Amazon of no induced infringement and vacated a jury verdict finding that it had induced infringement of Vocalife LLC’s patent for a method of enhancing acoustics. Judge Hughes authored the opinion. The asserted patent was U.S. Patent No. RE 47,049, which covers “methods and systems for ‘enhancing acoustics of a target sound signal received from a target sound source, while suppressing ambient noise signals.’” Vocalife filed suit against Amazon, claiming certain Amazon Echo products infringed the ’049 patent–specifically, Claim 1’s reference to “providing a microphone array system comprising an array of sound sensors positioned in a linear, circular, or other configuration” and “determining a delay . . . wherein said determination of said delay enables beamforming for said array of sound sensors in a plurality of configurations.”

This week saw 63 new patent filings in district court, and the typical (these days) 71 terminations, with 34 Patent Trial and Appeal Board (PTAB) filings (one post grant review and 33 inter partes reviews). I expect terminations will drop for a bit, as parties do what they can to hold on to venue before Judge Alan Albright in the wake of the Western District’s recent reassignment memorandum directing new filings to be randomly distributed (i.e., be put “on the wheel”) throughout the Western District. In major dismissals, WSOU either settled with or was scared off by always-tough Microsoft in that long-running campaign; the dozen or so dismissals of WSOU’s typical 13 parallel filings make up a chunk of the terminations. The Board filings were dominated by tech-versus-long-running-NPE suits, with a few competitor-competitor challenges (e.g., Vivint v. ADT).

The U.S. Court of Appeals for the Federal Circuit (CAFC) today issued a precedential decision affirming a California district court’s award of attorneys’ fees in part to Netflix, Inc. for Realtime Adaptive Streaming LLC’s “improper” litigation conduct. The CAFC said that Realtime’s use of forum-shopping to blatantly avoid an adverse ruling amounted to “gamesmanship” that “constitutes a willful action for an improper purpose, tantamount to bad faith, and therefore [is] within the bounds of activities sanctionable under a court’s inherent power in view of the Ninth Circuit’s standard.” The opinion was authored by Judge Chen and Judge Reyna concurred-in-part and dissented-in-part.

Yesterday, Chief Judge Orlando Garcia of the U.S. District Court for the Western District of Texas issued an order that, in Garcia’s words, will “equitably distribute” new patent cases among 12 district judges. This order is an effort to address “the volume” of new cases assigned to the Waco Division’s Judge Alan Albright. Albright’s court is viewed as patent owner friendly and he has been under fire recently from both the U.S. Court of Appeals for the Federal Circuit (CAFC) and Congress on different fronts for his policies and procedures, which do tend more often than not to give patent owners their day in court.

It was a slow summer week at the Board with just 23 new petitions—one post grant review and 22 inter partes reviews; in district court, a relatively average 63 new filings and 53 terminations rounded out the count. The major streaming companies, including Disney, challenged WAG Acquisitions [of Woodsford Litigation Funding] patents before the Board; SharkNinja challenges Bissel patents on vacuum cleaners; and FedEx challenged patents owned by Raymond Anthony Joao’s ultra-litigious Transcend Shipping. Apple lost three challenges at institution against an Identity Security LLC (f/k/a Integrated Information Solutions Corporation]. In the district court high-volume litigant M4Siz roped in more retailers, including Abercrombie and Fitch, Under Armor, Victoria’s Secret, and J Crew, bringing the total defendant count to 31; and more semiconductor litigation bloomed, with multiple campaigns filing against Micron and TI this week alone.

Last week, the U.S. Supreme Court received several amicus briefs filed in support of the petition for writ of certiorari filed in Biogen International GmbH v. Mylan Pharmaceuticals Inc. If cert is granted, this case will ask the nation’s highest court to clarify the written description requirement under 35 U.S.C. § 112. The appeal follows a contentious decision this March from the U.S. Court of Appeals for the Federal Circuit to deny panel rehearing and rehearing en banc of an earlier ruling affirming the Northern District of West Virginia’s invalidation of Biogen’s patent claims covering a method of treating multiple sclerosis (MS) under Section 112.

A company’s knowledge of IP trends and its own internal IP strategy is crucial to a wide range of issues the company may face—including litigation, business expansion, and retaining its talent. Being prepared for IP issues your company may face externally, as well as developing a strategic plan internally for your company’s IP portfolio, will better position your organization on multiple fronts. Below are 10 reasons your company should pay attention to these IP trends.

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed a district court’s ruling denying Innovation Sciences’ post-trial motion for judgment as a matter of law (JMOL) that claims of three of its patents are not invalid and that Amazon.com, Inc. infringed them, or, alternatively, a new trial. The CAFC said that substantial evidence supported the district court’s finding of anticipation, which Amazon proved via expert testimony relating to a prior art home automation software called HAL.