Posts Tagged: "Patent Litigation"

IP departments are often forced to spend their limited budget defending patent troll lawsuits targeted at the base computing and service layers instead of where it should be spent – protecting application layer innovation. There has been no shortage of such litigation due to the glut of vague and ambiguous software patents directed to basic computing technologies. These broad, vague patents have become glaring targets for trolls, who are eagerly buying them up and asserting them wherever they can. As a result, companies are being sued for patent infringement for things that aren’t directly related to their end products and services.

If the Eastern District of Virginia can dispatch patent cases in less time than the PTAB, why should we suffer the indignity of the lack of due process and constitutional infirmity of an Article II tribunal striping vested property rights without much, if any, real oversight by an independent judiciary?

The Federal Circuit upheld the decision of the Patent Trial and Appeal Board (“Board”), on Inter Partes Review, to invalidate as anticipated or obvious all claims of a patent owned by MPHJ Technology Investments. MPHJ’s patent describes a system and method for scanning a physical document and “replicat[ing it] into other devices or applications or the internet,” for instance, by email.

With respect to the thorny issue of patent litigation, Senator Hatch explained that there is a very real chance that venue reform will happen this year… HATCH: “The Supreme Court is currently examining the issue, so we won’t have a full view of the landscape until after the Court rules. But no matter what the Court does, we’re likely going to need follow-on legislation to prevent future forum-shopping and to ensure that litigants have a meaningful connection to the site of the suit.”

In a patent suit targeting Chrome web browsers, Google was hit with a $20 million jury verdict for infringing patents covering malware protection software… Google was hit with a jury verdict for $20 million in damages awarded to one inventor and the family members of a deceased co-inventor for the infringement of three reissue patents covering malware protection software. The infringement suit targeted Google’s Chrome web browsers for laptops and mobile platforms as well as the sale of Google’s hardware products having that software pre-installed. The case was decided in the U.S. District Court for the Eastern District of Texas (E.D. Tex.).

Damages discovery in patent cases is usually contentious, expensive, and non-uniform in application by the courts. The patent owner, on one hand, wants to discover all possible revenue streams for settlement and resource allocation. The accused infringer, on the other hand, wants to minimize disclosure, because of the sensitivity of financial information and the belief that the suit is meritless. And the courts are caught in the middle. Compounding these issues, fulsome damages contentions typically are not defined until expert reports are presented, meaning the parties (and the court through a Daubert motion) will not know whether there is sufficient basis for the damages sought until late in a case.

On the menu this week for Other Barks & Bites… Video game systems developed by Nintendo and Sony are targeted in a patent infringement suit filed in Delaware federal court. The infamous scan-to-email patent giving rise to the patent troll debate has finally been invalidated at the Federal Circuit. A multi-billion dollar copyright suits between two American tech giants gets new life from Oracle. California’s state legislature moves to create trademark protections for marijuana products at the state level, circumventing federal restrictions on such trademarks. And Zillow gets hit with a copyright infringement verdict.

Once the Federal Reserve Bank of Atlanta declined to take a license, Bozeman informed them that he believed they were infringing on his two patents… The complaint sets forth two claims for relief: one for declaratory judgment of non-infringement of the 6,754,640 patent, and the other for declaratory judgment of non-infringement of the 8,768,840. The complaint alleges that the Federal Reserve Banks do not infringe multiple elements of independent claims set forth in both patents and seeks a judicial declaration indicating as much, along with costs, expenses, and attorney’s fees.

At the center of each lawsuit is the assertion of a single patent covering personal data collection technology integrated into a series of smartwatches. The patent-in-suit asserted by Sportsbrain against each of these defendants is U.S. Patent No. 7,454,002, titled Integrating Personal Data Capturing Functionality into a Portable Computing Device and a Wireless Communication Device and issued to Sportbrain in November 2008… Each of the suits filed by Sportsbrain identifies a specific product and companion apps which work in tandem to collect personal data and provide feedback to wearers.

On January 20th, NYC-based drugmaker Bristol-Myers Squibb Co. (NYSE:BMY) and Kenilworth, NJ-based pharmaceutical firm Merck & Co. (NYSE:MRK) announced that the two companies had entered into a settlement and licensing agreement resolving worldwide patent litigation over a cancer treatment. As per the announced terms of the settlement, Merck will make a one-time payment of $625 million to Bristol-Myers Squibb and will also pay future royalties through 2026 on sales of Merck’s Keytruda.

In 2016, the ITC had its busiest year since 2011–which was the peak of the “smartphone wars”–in terms of new investigations instituted. In 2016, 55 complaints were filed, notably, 16 of these complaints were filed by foreign companies. The ITC had an above average settlement rate of 60%; normally the settlement rate is approximately 50%. Last year also had a slight growth in nonpatent investigations which includes antitrust, trade secret, copyright and Lanham Act violations. Despite the increased workload, the average target date was 15.8 months from institution date to final Commission opinion.

Practitioners dealing with a magistrate judge’s report and recommendation should be sure to preserve objections for appeal, since failing to object may lead to a more deferential, plain error standard of review, depending on the applicable circuit law. Further, in seeking a preliminary injunction, evidence of harm from pre-issuance of the asserted patent is relevant to show likelihood of irreparable harm from similar injuries in the future.

On Tuesday, January 17th, children’s toy maker Fisher-Price Inc. of East Aurora, NY, filed a patent infringement suit against bicycle distributor Dynacraft BSC, Inc. of American Canyon, CA. At issue in the case is a series of patents covering electronic speed control technologies used in battery-powered ride-on products marketed by Dynacraft. The patent infringement suit has been filed in the U.S. District Court for the District of Delaware (D. Del.).

On Wednesday, January 11th, retractable roof system developer Uni-Systems LLC of Minneapolis, MN, filed a patent infringement suit against multiple defendants, including the United States Tennis Association (USTA). The lawsuit alleges that multiple defendants conspired to infringe upon Uni-Systems’ patents and trade secrets by planning to build a retractable roof over a USTA tennis stadium in New York. The patent infringement suit has been filed in the U.S. District Court for the Eastern District of New York (E.D.N.Y.).

The Federal Circuit’s decision in Akamai V broadened the circumstances in which the actions of others may be attributed to a single actor to support liability for direct infringement. Here, a patent that claims a method of administering treatment can be directly infringed if a physician performs some of the claimed steps and the patient performs the other steps under the physician’s direction and control. The infringement is induced by the drug manufacturer when it unambiguously encourages the performance of the infringing steps, as in its labeling for the drug.