Posts Tagged: "Patent Litigation"

The volume of electronic data and the costs involved in collecting, culling and reviewing electronically stored information (ESI) are critical considerations in any litigation, large or small. Parties to a lawsuit are inevitably faced with significant litigation costs, due in large part to the burden of responding to overly broad discovery requests relating to ESI. To maximize the value of the e-discovery process, corporate counsel should ask how outside counsel plans to efficiently analyze ESI and reduce the expenses associated with e-discovery. Here are some specific questions to consider.

The plaintiff moved to strike the re-asserted invalidity defense under §101 as not made with good cause and as unfairly prejudicial. The defendant argued that the change was made in view of the Supreme Court’s §101 decision in Alice v. CLS Bank, which was decided two months before the final invalidity contentions were served. The district court agreed that the Alice decision was sufficient cause to re-assert the §101 defense in the final invalidity contentions.

The victory, if it stands, will encourage more design patent infringement claims, and Apple will likely find itself defending against similar suits in the not so distant future. On December 14, Samsung filed a petition asking the Supreme Court to hear an appeal in the case. Given the economics of future litigation, Apple might quietly hope that the Court takes the opportunity to articulate the appropriate standard for awarding total profit damages for infringement.

The Court affirmed the obviousness rejection. “As the Board properly found, one of ordinary skill would have been motivated to pursue the desirable properties taught by Wong [a shorter reaction time like Urbanski’s], even if that meant foregoing the benefit [of more stable fibers from a longer reaction time] taught by Gross.” One of ordinary skill could have been motivated to modify Gross in view of Wong to achieve the desired effects.

The Court agreed, noting testimony from Cisco’s engineer who stated that the system needed only one copy of the protocol to support all devices. Commil’s expert opined that the protocol was a state machine, and since Cisco’s devices tracked separate information regarding their communication states, each communication state represented a copy of the protocol that was unique. The Court disagreed, finding that tracking separate states for each device was not substantial evidence that each device ran a separate copy of the protocol.

That Finjan would prevail in six separate IPR institution decisions relating to the same patent litigation seems an extraordinary long shot. While Finjan has not said it in a press release or to me directly (see more later), allow me to notice that this speaks volumes both about the relative strength of the Finjan patents and the relative weakness of the Symantec invalidity case against these patents. If the PTAB wasn’t even willing to take another look in a proceeding that is so hopelessly stacked against the patent owner these patents are about as rock solid from a validity standpoint as they could possibly be.

While we tend to think of Las Vegas’ tourism-based economy as built on gambling, trade shows also bring hundreds of thousands of visitors to the city each year. Thus, the issue of effective enforcement of the patent laws at these trade shows becomes entwined with the health of the city’s economy. Against this backdrop, the Las Vegas bench of the U.S. District Court for Nevada has developed a muscular set of equitable remedies for U.S. patent holders who complain to the court of patent infringement by a trade show exhibitor, remedies that the court can and does deploy with sufficient speed to be effective within the narrow timeframe of a trade show.

2015 saw the second-most patent infringement cases brought to court, according to Lex Machina’s data. A total of 5,830 patent cases were filed, a 15 percent increase over the 5,070 patent cases which were filed during 2014. 2015 still trailed behind 2013 in terms of patent infringement cases; that year set the high-water mark for patent infringement cases with 6,114 cases filed in that year.

If the allegations in the Valencell complaint against Apple proves to be true, the dispute between Valencell and Apple yet another example of a small company that was lead astray by a larger company pretending to want to license their technology only to get a better look so they could shamelessly copy without regard to whether they infringed any existing patents. Indeed, the complaint says that would be in keeping with Apple’s long standing policy, quoting Steve Jobs as having said that Apple has “always been shameless about stealing great ideas.” See Complaint paragraph 14.

Patent risk solutions provider RPX yesterday released its 2015 NPE Activity: Highlights report, which offers a first look at trends in patent litigation activity for 2015. According to RPX, NPE litigation activity rebounded in 2015 following what now appears to have been a slowdown in the latter half of 2014. The Eastern District of Texas also continues to dominate as the venue of choice for NPEs, with NPEs suing more defendants there in 2015 than in any year since 2009.

On remand, the Federal Circuit used the de novo standard. Teva’s deferential “clear error” standard did not apply, because the district court did not make any factual findings based on extrinsic evidence in connection with its claim construction. Although extrinsic evidence may be used at trial, a district court must rely on subsidiary factual findings from that evidence to reach its claim construction, in order for any deference to arise on appeal. In this case, the Federal Circuit held that the intrinsic evidence led to a de novo conclusion that the district court conflated the claimed virtual machine with applications written to run on the virtual machine.

If patent owners do not have the financial resources to pursue infringers the patent becomes nothing more than a wall decoration – a very expensive wall decoration. And getting funding is more difficult than ever. According to Ashley Keller, Managing Director of Gerchen Keller Capital, speaking on the last panel of the day on Monday at the IP Dealmakers Forum in New York City, they are funding 1 out of ever 100 cases they review these days.

What’s stunning about this list is that almost nobody talks about reforming patent law to correct these biases! In general, the only biases that are socially and politically acceptable to correct are biases in favor of patent owners. It is profoundly unfair to correct biases in the patent system to protect accused infringers if we do not also correct biases in the patent system to protect inventors. It is interesting to ask why modern patent reform overwhelmingly protects accused infringers without also protecting inventors. I worry that the patent reform asymmetry fits within a larger trend of decline in the great Western traditions of innovation, due process, meritocratic competition in the race to invent, reliance on property rights and business investments, and strong support for intellectual property as distinct from real and personal property.

We have all heard it. We all know it happens. Large company takes a look at what small company is working on, refuses to do a deal and then miraculously thereafter starts to infringe. In this, as in many cases, there was a confidentiality agreement, but what good is such an agreement without the means to enforce it? Even worse, it appears as if in this case the larger company had the audacity to file a patent application of their own after being granted access to what was supposed to be confidential information. Unfortunately, Congress and the Courts seem singularly focused on protecting helpless large multinational corporations who, as the story goes, are getting bullied by patent owners. That just isn’t the reality I see.

In a November 10 ruling, the Federal Circuit held that routine quality control testing of each batch of a generic drug as part of the commercial production process, after FDA approval, is not protected by the Hatch-Waxman safe harbor provision of 35 U.S.C. § 271(e)(1). However, infringement only occurs under 35 U.S.C. § 271(g), as a result of “making” a product, which does not include quality control testing.