Posts Tagged: "Judge Jimmie Reyna"

Obviously, Judges cannot be experts on all things, but this apparent lack of understanding of something so fundamental to the case was a bit alarming for the patent owner. Surely, Judge Reyna would clear up his understanding of the difference between a web page and a web server after oral argument and realize that the arguments being made by the defendant were unnecessarily confusing, but also contradicted arguments previously made. Unfortunately, we will never know whether Judge Reyna continues to believe that a web page and a web server are the same thing, or whether the other Judges on the panel were equally confused, because the Federal Circuit issued a Rule 36 affirmance of the trial court’s decision

The Federal Circuit found that the PTAB didn’t meaningfully examine Salesforce’s relationship with RPX and the nature of RPX as an entity that helps its clients extricate themselves from patent litigation. Both of those factors are ones which are contemplated by the PTAB’s Trial Practice Guide.

The Federal Circuit reviewed whether certain prior art was “publicly accessible,” because Jazz alleged the material was not a “printed publication” under Section 102(b). Jazz argued that the material, meeting minutes, transcripts, and slides pertinent to an FDA advisory meeting scheduled during the review process for a particular “sensitive drug” (Xyrem), failed to meet a “searchability or indexing” requirement and that the Board erred by “equating the constructive notice provided by the Federal Register with the legal standard for prior art.” The Court rejected both arguments, relying on three precedents, MIT, Klopfenstein, and Medtronic, to analogize and proceed on a “case-by-case” analysis of the facts and circumstances surrounding the disclosure to the public – the proper inquiry for determining if a reference is a “printed publication.” The Court looked at three factors: the breadth of the dissemination; the amount of time the materials were available before the critical date; and, the presence or absence of an expectation of confidentiality. Comparing the facts to its three precedents, the Court found that each of the three factors supported the conclusion that the materials were printed publications and thus prior art.

Federal Circuit, in an opinion authored by Judge Moore, affirmed the determination of the PTAB, holding that tribal sovereign immunity cannot be asserted in IPRs. the decision of the Federal Circuit is rather seriously flawed. The PTAB is simply not capable of exercising jurisdiction over a patent through in rem jurisdiction. The ruling of the PTAB only implicates the rights of certain persons, and because the patent and all patent claims remains open to challenge by others in the future. That truth means the PTAB acts, at best, quasi in rem, which thanks to Supreme Court jurisprudence should be extremely relevant when determining the applicability of tribal sovereign immunity.

On Monday, July 16th, the Court of Appeals for the Federal Circuit issued a precedential decision in Blackbird Tech v. ELB Electronics, which vacated an earlier judgment of non-infringement of a patent asserted by Blackbird in the District of Delaware. The Federal Circuit majority panel of Chief Judge Sharon Prost and Circuit Judge Kimberly Moore determined that the district court had erred at construing the claim term “attachment surface” in finding non-infringement of the asserted claims. Circuit Judge Jimmie Reyna dissented in this case.

On Wednesday, July 11th, the Court of Appeals for the Federal Circuit issued a decision in Apple v. ContentGuard Holdings vacating a decision by the Patent Trial and Appeal Board (PTAB) to institute a covered business method (CBM) validity proceeding… Amazingly, the Federal Circuit’s vacature of the PTAB’s determination of unpatentable subject matter came after appeals from petitioners Google and Apple sent the case to the Federal Circuit. Although the panel of administrative patent judges (APJs) determined the challenged claims to be unpatentable, they also granted a motion from ContentGuard to amend claims which substituted the unpatentable claims. This appeal gave ContentGuard the ability to cross appeal the PTAB’s determination that the ‘280 patent was subject to CBM review.

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.

On Monday, June 4th, the Court of Appeals for the Federal Circuit heard oral arguments in St. Regis Mohawk Tribe v. Mylan Pharmaceuticals, a case appealed from the Patent Trial and Appeal Board (PTAB) which asks the appeals court to determine whether tribal sovereign immunity can be asserted to terminate inter partes review (IPR) proceedings at the PTAB. The Federal Circuit panel consisting of Circuit Judges Kimberley Moore, Timothy Dyk and Jimmie Reyna lobbed tough questions at counsel representing appellants St. Regis and Allergan, appellees Mylan and Teva as well as the respondent for the U.S. federal government, without giving much clue as to whether the panel favored the argument offered by any particular side.

In Zeroclick, LLC v. Apple Inc., before Judge Jimmie Reyna, Judge Richard Taranto, and Judge Todd Hughes, Zeroclick appealed a district court’s interpretation of the claims as containing “means plus function” limitations under 35 U.S.C. § 112 ¶ 6, arguing that the district court erred by imposing a means plus function analysis. The Court agreed with Zeroclick finding that the district court failed to give appropriate weight to the rebuttable presumption created by the absence of the word “means” within the claims, vacating and remanding the case to the district court.

The moving target rejections were largely due to the fact that the examiner’s first clear explanation that she was relying on structural identity, and not inherency, appeared in the examiner’s answer. Judge Reyna explained: “[T]he equivocal nature of the examiner’s and Board’s remarks throughout the examination of the ‘989 application, including whether inherency was the basis for the rejection, clouded the issues before Durance.”

On Friday, June 1st, the Court of Appeals for the Federal Circuit issued a decision in In re: Durance striking down a decision by the Patent Trial and Appeal Board (PTAB) that affirmed a patent examiner’s obviousness rejection of a microwave vacuum-drying apparatus and associated method. The Federal Circuit panel consisting of Judges Alan Lourie, Jimmie Reyna and Raymond Chen…

On appeal to the Federal Circuit, Zeroclick argued that the district court erred in construing those two terms as means-plus-function limitations, an argument with which the Federal Circuit panel agreed. “Neither of the limitations at issue uses the word ‘means,’” Circuit Judge Hughes writes in his majority opinion. “Presumptively, therefore, [Section 112(f)] does not apply to the limitations.” Although Apple argued in the district court that the claims must be construed under Section 112(f), it provided no evidentiary support for its position. Although the court compared Apple’s arguments to Zeroclick’s objections, Judge Tigar did not point to any record evidence supporting the ultimate conclusion on Section 112(f) grounds.

Disclosure of one way to attach or position a roof assembly (a species) did not provide an adequate written description of other ways to attach or position the assembly (a genus or different species). Boilerplate language that a patent covers all modifications, permutations, additions, and sub-combinations of the disclosed invention that a POSA would recognize as within the language of the claims is not sufficient to show possession of a specifically claimed combination.

There is no blanket prohibition against the introduction of new evidence during an inter partes review proceeding, indeed new evidence should be expected. A petitioner can introduce new evidence following the petition, if it is a legitimate reply to evidence introduced by the patent owner, or if the new evidence is used to show the level of knowledge skilled artisans possess when reading the prior art references identified as grounds for obviousness.

The Federal Circuit held that it would be reasonable and fair to exercise specific personal jurisdiction over DAL because the United States has an important interest in adjudicating patent infringement disputes and M-I has a keen interest in obtaining convenient and effective relief, especially considering that modern advances in communication and transportation would reduce DAL’s burden of litigating in a distant United States court.