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Posts Tagged: "Patent Litigation"

Return of the ‘Hold-Up’ Bogeyman: Analyzing the 2021 Draft Policy Statement on SEPs Subject to Voluntary F/RAND Commitments (Part III)

In Part II of this series, we considered the language of a specific licensing commitment made to European Telecommunications Standards Institute (ETSI) and the prevailing law relating thereto. In this Part III, we consider the 2021 Draft Policy Statement with a particular view to highlighting its inconsistencies with the ETSI framework and the inapplicability of the hold-up narrative to the situation involving an individual United States patent. Despite its purported purpose of providing the agencies’ views on “remedies for the infringement of standards-essential patents (or SEPs) that are subject to a RAND and/or F/RAND licensing commitment”, the 2021 Draft Policy Statement does not take a clear position on this issue, instead merely stating the following (some might say “the obvious”):

Property Rights Groups Urge Garland and Kanter to Withdraw ‘Misguided’ Policy Statement on SEPs Subject to FRAND

On January 12, a coalition of 28 property rights groups signed a letter addressed to U.S. Attorney General Merrick Garland and Assistant Attorney General for Antitrust Jonathan Kanter asking those officials to reconsider and withdraw a draft policy statement issued in early December regarding licensing negotiations and remedies for standard-essential patents (SEPs) subject to voluntary fair, reasonable and non-discriminatory (FRAND) commitments. According to the coalition, the U.S. Department of Justice’s (DOJ) statement will only serve to bolster the fortunes of China, the major economic rival to the United States, by allowing Chinese tech implementers to infringe SEPs without respect to the rights of U.S. innovators.

CAFC Nixes District Court Claim Construction in Win for Firearms Patent Owner

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Friday ruled that a California district court erred in its claim construction relating to Evolusion Concepts, Inc.’s patent for a method of converting a semi-automatic rifle with a detachable magazine to one with a fixed magazine. The CAFC reversed the court’s grant of summary judgment of non-infringement for Juggernaut Tactical, Inc., reversed a denial of summary judgment of direct infringement, vacated the award of attorneys’ fees and remanded for further proceedings.

Tips for Litigating Multiple Simultaneous Patent Infringement Investigations at the ITC

Global concern regarding climate change is forcing all industries to evaluate energy consumption and seek out ways to do more using less energy. For example, LED lighting fixtures achieve significant energy savings compared with older lighting methods. At the same time, technological advances now make it possible to communicate with and control electronic devices from anywhere at any time. Often referred to as the Internet of Things, or IoT, consumers now have the ability to control virtually any device in the home using a computer or smartphone, including lighting, appliances, and climate systems. Among the numerous benefits provided by IoT, enhanced control can reduce unnecessary use, thus conserving energy. As IoT and LED use becomes more widespread, intellectual property protecting these technologies has become increasingly valuable. This has led to a dramatic increase in litigation asserting such IP in district courts across the country as well as another popular forum for IP litigation, the U.S. International Trade Commission (ITC).

Patent Filings Roundup: New Litigation-Funded Campaign; PTAB Denies Under NHK-Fintiv Despite Sotera(ish) Stipulation

Apologies for missing last week, which was a light, short holiday recap—nothing much of note beyond less-than-average filings, given the holidays. This week was back to the new normal at the Board, with 24 petitions—one post grant review (PGR) and 23 inter partes reviews (IPRs)—and 50 new filings, with fewer than usual file-and-settle suits (as it’s the beginning of a quarter, year, and month). Another unusually high 92 terminations are mostly due to the end of file-and-settle suits from last year. A few new campaigns of note below, more discretionary denials, and a bunch of IPR denials filed against a German microbattery company round out the week.

SCOTUS, Vaccine Mandates and Patent Law: God Help Us

Is the Supreme Court competent to handle issues dealing with technology? The question is often discussed in private among patent attorneys who find themselves completely befuddled by the wanton disregard and open duplicitous handling of patent laws by the Nation’s High Court. In one decision, the Supreme Court will wax poetically about the need to adhere to precedent, and citing stare decisis, and then overrule well-established, 30-year-old Supreme Court precedent. The whim and fancy – and intellectual dishonesty – of the Supreme Court knows no bounds when it comes to patent law. But now, just how little at least some of the Justices know about basic science – and logic — has become glaringly and unmistakably obvious to everyone, thanks to the recent oral argument held regarding vaccine mandates.

One is the Loneliest Number: Analyzing the 2021 Draft Policy Statement on SEPs Subject to Voluntary F/RAND Commitments (Part II)

In Part I of this series of articles, we provided an overview of the 2013 and 2019 policy statements that preceded the 2021 Draft Policy Statement. In this Part II, we consider the language of a specific licensing commitment made to European Telecommunications Standards Institute (ETSI), and various legal pronouncements that have been made in relation thereto.

Patent Licensing is a Risky Business: Let the Market Strike the Balance

Patent licensing and technology transfer are cornerstones of modern economies, where the efficiencies of collaboration and division of labor do not require firms to be vertically integrated. The Wright brothers did not build commercial aviation, and yet commercial aviation was born thanks to the Wright brothers’ invention. Similarly, a car manufacturer can simply rely on communication technologies developed by telecom experts outside the automotive ecosystem to guarantee connectivity to its fleet and the corresponding massive economic benefits. This short article focuses on how risk – in the economic and legal sense – changes over time, and what this implies for patent licensing dynamics. Licensing negotiations are not static snapshots in time, they often evolve and change according to developing circumstances, case law, parties’ conduct, and many other factors.

High Court Asks U.S. Government for Input on Petition Accusing CAFC of Violating Seventh Amendment

The U.S. Supreme Court yesterday asked the Solicitor General of the United States to weigh in on a petition for writ of certiorari that claims the U.S. Court of Appeals for the Federal Circuit (CAFC) is depriving litigants of their right to trial by jury under the Seventh Amendment. The petition, filed in September by Olaf Sööt Design, LLC (OSD), asks the Court to take up the following question: “Whether the Seventh Amendment allows the Federal Circuit to reverse a jury verdict based on a sua sponte new claim construction of a term the district court concluded was not a term of art and construed to have its plain and ordinary meaning; where the Federal Circuit’s sua sponte claim construction essentially recasts a specific infringement factual question, previously decided by the jury, as a claim construction issue, to be decided de novo by the appellate court.”

Amici for Apple Tell SCOTUS Federal Circuit’s Article III Standing Ruling Violates Precedent, Upsets Congressional Intent in Enacting AIA Trials

In mid-November, consumer tech giant Apple filed a petition for writ of certiorari asking the U.S. Supreme Court to review the Federal Circuit’s decision to dismiss Apple’s appeal of unsuccessful inter partes review (IPR) challenges to the validity of several patents owned by Qualcomm. In that ruling, the Federal Circuit found that Apple’s choice to enter a patent licensing agreement with Qualcomm covering the patents-at-issue extinguished Article III standing as to Apple’s appeals from the Patent Trial and Appeal Board (PTAB). The question presented by Apple’s petition is: “Whether a licensee has Article III standing to challenge the validity of a patent covered by a license agreement that covers multiple patents.”

New Vision Gaming’s Motion for Reconsideration Highlights Issues with Arthrex USPTO Director Review Mandate

In the last few weeks of 2021, patent owner New Vision Gaming & Development filed a motion for reconsideration  of a remand order issued by the U.S. Court of Appeals for the Federal Circuit. That ruling, entered in early December, remanded New Vision Gaming’s appeal of covered business method (CBM) review proceedings back to the Patent Trial and Appeal Board (PTAB) “for the limited purpose” of requesting Director review of the CBM review decisions under the U.S. Supreme Court’s Arthrex standard. New Vision Gaming’s recent motion for reconsideration raises several issues regarding the U.S. Patent and Trademark Office’s (USPTO’s) implementation of Director reviews under Arthrex, making this particular case an important one to follow through at least early 2022.

Unified Report: Reexaminations Double; Samsung, Apple and Google Dominate PTAB Filings

Reexaminations continue to gain favor, seeing a 47% increase over last year; the Patent Trial and Appeal Board (PTAB) sees fewer filings; and filings by non-practicing entities (NPEs) rose by 4%, according to Unified Patents’ 2021 Patent Dispute Report: Year in Review, published earlier this week. The PTAB saw a nearly 12% decline in filings from the previous year, whereas district court proceedings remained unchanged, said the report. It added: “Operating companies filed 5.5% less cases in district court and over 10% less filings at the PTAB.”

Amicus Curiae Practice is Set to Make Its Statutory Debut in Japan

In the United States and other countries, there is a growing awareness and increasing appreciation of the purpose and value of amicus curiae practice as an aid in adjudicative decision-making. The role of an amicus curiae (“friend of the court”) brief in support of a party, or in support of no party, is to supply, voluntarily, the presiding court or other tribunal in cases of controversy with pertinent information, insights, or arguments in a formal, publicly accessible manner. Toward that end, a well-written amicus brief is one that is useful to the decision-maker(s) in calling attention to relevant or material factual or legal aspects of the issue(s) in contention – aspects that the decision-maker(s) or the party-litigants may not have been aware of or able to develop fully.

Federal Circuit Says Intel Can Appeal Qualcomm IPRs Despite Lack of Infringement Suit

On December 28, the U.S. Court of Appeals for the Federal Circuit (CAFC) issued a pair of precedential decisions in appeals raised by chipmaker Intel. These appeals came from final written decisions in several inter partes review (IPR) proceedings challenging the validity of patent claims owned by rival firm Qualcomm. In both decisions, the Federal Circuit found that Intel satisfied Article III standing requirements for appealing from the Patent Trial and Appeal Board (PTAB). Standing has become a thorny issue that has plagued the Federal Circuit and PTAB.

In Dissent to CAFC Ruling for Novartis on Written Description, Chief Judge Argues ‘Silence is not Disclosure’

The U.S. Court of Appeals for the Federal Circuit (CAFC) yesterday affirmed a district court’s ruling that Novartis’ U.S. Patent No. 9,187,405 is not invalid and that HEC Pharm Co., Ltd. and HEC Pharm USA Inc.’s Abbreviated New Drug Application (ANDA) infringed the patent. The CAFC found no clear error in the district court’s finding that the patent’s claims did not fail the written description requirement under 35 U.S.C. § 112(a). Chief Judge Moore dissented, arguing that the district court’s analysis was inconsistent with the CAFC’s established precedent. The ‘405 patent covers methods of treating relapsing remitting multiple sclerosis (RRMS) with fingolimod (an immunomodulating medication) or a fingolimod salt “at a daily dosage of 0.5 mg without an immediately preceding loading dose.”