On May 11, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed the claim construction and decision of the United States District Court for the Central District of California to exclude evidence relating to damages but vacated its infringement determination and remanded a case alleging that Hulu, Inc. infringed Sound View Innovations, Inc.’s patent for data streaming technology. Sound View is the owner of expired U.S. Patent No. 6,708,213 (the ‘213 patent), which discloses “methods which improve the caching and streaming of multimedia data (e.g., audio and video data) from a content provider over a network to a client’s computer.” In June 2017, Sound View sued Hulu, alleging that its “Hulu Streaming Video on Demand products” infringed six Sound View patents, though only claim 16 of the ‘213 patent remained at issue on appeal.

Last week, the Supreme Court refused certiorari in yet another patent eligibility appeal. I’ve lost count as to how many times the Court has refused to provide clarity to the fundamental question of patent eligibility since it last muddied the waters in Alice back in 2014. I stopped counting several years ago, when the number of petitions—pleas begging for help really—crossed over 50. But the petition in American Axle was supposed to be different. Yes, the Federal Circuit has been hopelessly, and helplessly, split for years—a division and impotence of their own making. In American Axle the self-castrated Federal Circuit seemed to believe the Supreme Court modern quartet of patent eligibility cases renders nothing of importance or value patent eligible. In fact, the Federal Circuit actually ruled that a drive shaft is not patent eligible because the operation of the drive shaft fundamentally relies on Hooke’s law.

On May 23, the U.S. Court of Appeals for the Federal Circuit (CAFC) affirmed a decision by the Patent Trial and Appeal Board (PTAB) from an inter partes review (IPR) proceeding where the PTAB concluded that the challenged claims of U.S. Patent No. 9,844,379 B2 (the ‘379 patent) were unpatentable as obvious. Ethicon on appeal contended that the PTAB improperly placed the burden of proof on them and that the PTAB’s finding of reasonable expectation of success when the asserted prior art was combined was unsupported by substantial evidence. Ethicon owns the ‘379 patent, which relates to an endoscopic surgical stapling tool. The supposed novelty of the ‘379 patent is “the use of both an I-beam firing member and a no-cartridge safety lockout, such that the lockout blocks the advancement of an I-beam firing member when there is no staple cartridge loaded in the stapling assembly.” The safety mechanism is particularly helpful for endoscopic procedures that require a surgeon to work with reduced visual and tactile feedback when compared to open surgery.