Posts Tagged: "validity"

The U.S. Court of Appeals for the Federal Circuit (CAFC) issued a precedential opinion on October 3 involving a patent infringement suit brought by American Axle & Manufacturing, Inc. (AAM) against Neapco Drivelines LLC (Neapco) in 2015. The suit involved alleged infringement of U.S. Patent No. 7,774,911 (the ‘911 patent). The opinion, authored by Judge Dyk, affirmed the U.S. District Court for the District of Delaware’s finding that the asserted claims are ineligible under Section 101. Judge Moore dissented, saying that “the majority’s decision expands § 101 well beyond its statutory gate-keeping function and the role of this appellate court well beyond its authority.” The ‘911 patent teaches a method for manufacturing driveline propeller shafts that are designed to attenuate vibrations transmitted through a shaft assembly.After a thorough analysis of the first prong of the Alice and Mayo two-step process, the CAFC turned to the second prong and found that no inventive concept existed that could transform the claims into patent eligible subject matter. Judge Kimberly Moore filed a scathing dissent in which she said the majority opinion “deeply trouble[s]” her and that the Court’s opinion conflates Section 101 with Section 112.

The resurrection of the ‘814 patent claims was of great importance to Fitness Anywhere because it covered a modification to the company’s fitness equipment that helped it achieve great success in the marketplace. The invention essentially consisted of taking a handle accessory that was attachable to the fitness equipment via velcro and making it a permanent fixture of the equipment. Although Fitness Anywhere had told the court that it wouldn’t pursue further infringement damages against Woss based on the reinstated ‘814 patent claims, in large part because of Woss’ bankruptcy status, Judge Freeman’s granting the motion for reconsideration restores an important asset that can now again be asserted against many of the at least 100 companies that are allegedly infringing the patent behind TRX fitness equipment.

As the pharmaceutical industry continues to shift toward biologic-based drugs, including monoclonal antibodies, protecting the underlying technology has been and continues to be a priority for companies. As with any drug, patenting therapeutic monoclonal antibodies as early as possible in the drug development process is crucial to protect the underlying invention. In the early days of antibody discovery for therapeutic development, protection could be obtained with minimal disclosure of the actual antibody. But as the art and case law have evolved, companies now need far more data to obtain the broadest scope of protection. For that reason, it has become more of a challenge to determine the best time to file with the U.S. Patent and Trademark Office (USPTO). After the America Invents Act (AIA), it is a race to the USPTO to be the first to claim your invention, but you may lack the requisite data to enable you to obtain patent protection in the end.

On Monday, September 25th, Zephyr Cove, NV-based patent owner VirnetX Holding Corporation filed a Form 8-K with the U.S. Securities and Exchange Commission (SEC) regarding an agreement between that firm and Cupertino, CA-based consumer electronics giant Apple on costs and prejudgment interest related to the ongoing patent infringement proceedings between the two companies. A press release attached to the Form 8-K indicates that VirnetX and Apple agree to add costs and prejudgment interest of $93.4 million to the $502.6 million patent infringement verdict awarded to VirnetX in district court.

Nobel Biocare Srvcs. AG v. Instradent USA, Inc. makes one wonder whether all U.S. patents are invalid, or will eventually become invalid. This case demonstrates that decisions affirming the validity of patent claims by the Federal Circuit are nothing more than advisory opinions. Decisions affirming validity of patent claims are merely a preliminary round in a fight that will last until the patent claims are all finally invalidated.

In an appeal from an IPR in which the Board upheld the patentability of several patent claims, the Federal Circuit vacated the decision and remanded to the Board with instructions to consider the patentability of certain dependent claims… The patentability of independent Claims 1 and 17 was the sole basis for the Board’s decision in this appeal from the ’592 IPR; the Board did not separately address the dependent challenged claims. The holding of unpatentability of claims 1 and 17 in the ’728 IPR, and the affirmance by the Federal Circuit, abrogated the basis for the Board’s decision that the claims in the ’592 IPR were patentable.

Patents that have withstood scrutiny in Article III federal courts are not bad patents, they are good patents, and they ought not to be struck down by an Article I administrative tribunal. The procedures of the AIA are working in a way to subjugate Article III federal courts to the arbitrary, capricious and egregiously overactive whims of an administrative tribunal in search of work to satisfy the several hundred newly hired “judges.”… Why is the PTAB spending precious resources re-litigating and ultimately killing good patents? The PTAB was created by Congress to review dubious patents and revoke bad patents. So why is the PTAB diverting its attention and re-litigating issues already addressed by federal judges and juries? Is it really likely that claims confirmed valid in federal court are invalid? In any rational world it would be per se unlikely that patent claims previously adjudicated as valid in federal court are invalid.

Supporters of the Patent Trial and Appeal Board (PTAB) continue to claim that the facts and figures showing the PTAB is overruling Article III federal district court adjudication on patent validity is fictitious. Ignoring the truth doesn’t make the truth any less correct. Still, in some circles the fiction spewed by those who champion the patent killing fields of the PTAB continues to be persuasive… More alarming, in many of the cases where the PTAB has overruled district court adjudication of the patents there were findings of willful infringement, meaning the defendants (and ulitmately the IPR petitioners) knowingly and intentionally infringed the patents adjudicated to contain valid claims. Notwithstanding, the PTAB, dutifully complied with their role as executioner of patents.

69% of cases reaching a final decision by the PTAB have all claims invalidated. 82.5% of patents reviewed by PTAB in a final decision are found defective… As the facts laid out in this article show, the PTAB is substantially more likely to find patents to be defective than a Federal District Court. This reality is a significant problem for patent owners, and should be a serious concern for anyone at all concerned with separation of powers. Even after prevailing in Federal District Court, and even after prevailing at the Federal Circuit as VirnetX had done, the PTAB can still invalidate claims already adjudicated as valid by an Article III tribunal. If patents are to be considered any kind of property right (as the statute says) title must at some point quiet, and an Article I administrative tribunal simply cannot have the power to overrule an Article III tribunal. If patent owners cannot have full faith and confidence in the patent granted by the Federal Government, and they similarly cannot have full faith and confidence in a final adjudication by the federal courts, how can they be expected to invest the millions, and sometimes billions, required to bring technology to the marketplace?

A jury verdict recently entered in a patent infringement case in the Eastern District of Texas held that plaintiff Packet Intelligence, a patent owning entity headquartered in Marshall, TX, did not prove infringement of claims from three patents asserted against Canadian communications service solutions provider Sandvine Corporation (TSE:SVC). The jury verdict comes less than one month after Packet Intelligence won a jury verdict of infringement on the same asserted patents in a different Eastern Texas case filed against Westford, MA-based application and network performance management firm NetScout Systems (NASDAQ:NTCT).

On November 1st, a panel of administrative patent judges (APJs) at the Patent Trial and Appeal Board (PTAB) issued a final written decision which found that 11 claims of a networking patent held by Salt Lake City, UT-based wide area network (WAN) developer FatPipe Networks as being anticipated and obvious in light of prior art. A press release on the news from FatPipe, however, notes that the PTAB panel did not invalidate “a signature claim” of the patent covering a method for load balancing over disparate networks.

The government’s brief argues that IPR proceedings at the PTAB are consistent with Article III because, in its view, patents are public rights and not private ones and the right for an inventor to seek a patent is a public right. In the government’s eyes, it is constitutionally permissible for the U.S. Patent and Trademark Office to reassess previously issued patents for revoking in order to “correct its own errors.” If the PTAB errs, then patent owners have legal recourse in appealing those cases to the Court of Appeals for the Federal Circuit, the government argues.

The PTAB subjects all patent owners to double jeopardy, but the situation is particularly bad for pharmaceutical companies which already have to face a Congressionally-mandated validity review process under the Drug Price Competition and Patent Term Restoration Act, colloquially known as Hatch-Waxman. This law creates a regime by which a generic drugmaker can file an abbreviated new drug application (ANDA) with the U.S. Food and Drug Administration (FDA). The branded pharmaceutical listed in the Orange Book will be covered by patents but the generic drugmaker can include a Paragraph IV certification in the ANDA, a declaration that the patents covering the Orange Book-listed drug are unenforceable and invalid. When a company like Allergan has to face Hatch-Waxman validity trials in federal district court and serial IPRs at the PTAB, it turns Allergan’s Restasis patents into piñatas taking hit after hit at multiple forums before being finally ripped asunder at some point.