The word Stone has recently been the main focus of the Keystone beer rebranding for MillerCoors. MillerCoors is fighting the lawsuit saying consumers have referred to Keystone as “Stone” since its debut which was before Stone Brewing was even founded. To continue reading, click: Stone Brewing sues MillerCoors Over “Stone” Trademark
The stated goal of the wristbands is to free employees’ hands from handheld devices and to prevent errors. However, employee groups are concerned about how the wristbands could be used. To continue reading, click: Amazon Wristband Patent Allows it to Track Movements of Employees
Grumpy Cat Limited had agreed to let Grenade Beverage use the cat’s image in relation to ‘Grumpuccino’ iced coffee. Grumpy Cat Limited sued after Grenade infringed the cat's rights by producing other products with Grumpy Cat’s image and failed to share profits. To continue reading, click: Grumpy Cat Wins $710,001 Copyright Lawsuit Against Grenade Beverage
Maybe I’m being too optimistic. But in a pair of decisions issued within a week of each other, Berkheimer v. HP and Aatrix Software v. Green Shades, the Federal Circuit just vacated two patent ineligibility determinations... And if you think these declarations are too good to be true, take a look at the decisions, both drafted by Judge Moore. Both are in the software field... The Court held that the district court erred in granting summary judgment of ineligibility with respect to some of Berkheimer’s claims... In Aatrix Software v. Green Shades, the Court vacated a Rule 12 dismissal for lack of patent eligibility.
There are many lessons to be drawn from the Waymo v. Uber litigation. This is perhaps the most important. Lawsuits are about history, while business is about the future... Most trade secret litigation is fueled by emotional reactions to perceived wrongs. Plaintiffs feel betrayed and abandoned, and defendants feel blamed and misunderstood. Each side wants to fight in order to validate its perspective. So the lawsuit begins with great energy. But over time, new facts emerge, and the parties begin to reconsider the cost/benefit analysis of continuing the struggle.
The post Waymo v. Uber Shows Even Epic Battles Can Be Resolved appeared first on IPWatchdog.com | Patents & Patent Law.
The Federal Circuit also remanded to the Board further consideration of the undisputed evidence presented by Polaris that its ATVs were a commercial success. Polaris presented undisputed evidence that its vehicles had generated over $1.5 billion in sales since 2007 and that the commercial product was tied to the patent and claims entitling Polaris to a presumption of a nexus. Despite this undisputed evidence the Board still concluded that Polaris failed to prove a nexus, finding Polaris’ evidence conclusory.
The Patent Trial and Appeal Board (PTAB) denied a petitioner’s request for rehearing of its decision declining institution of inter partes review of a patent owned by Bose Corporation (“Patent Owner.”) The PTAB upheld its finding that the supporting declaration of Petitioner’s expert relied on “a far too general reason” to combine prior art, was conclusory, and engaged in impermissible hindsight.
Petitioner argued that certain patent claims directed to an in-ear earpiece were invalid in view of prior art references Howes and Sapiejewski. In its supporting declaration, Petitioner’s expert opined that Howes discloses a “known, retention problem with in-ear earpieces” that, because of their “weight and overall size” in-ear earpieces, have a tendency to fall out of the ear. Petitioner’s expert also opined that Sapiejewski’s in-ear earpiece would have had this same retention problem because of its weight and overall size, and, thus, a person of ordinary skill in the art (POSA) would have been motivated to combine the disclosures of Sapiejewski with those of Howes.
The PTAB, however, found that, apart from conclusory statements, Petitioner’s expert did not explain how a POSA would even know the weight and overall size of Sapiejewski’s earpiece or that it would result in a retention problem. To the contrary, the PTAB found that disclosures in Sapiejewski—stating that its earpiece “is designed to comfortably couple the acoustic elements of the earpiece to the physical structure of the wearer’s ear”—indicate that its earpiece did not actually suffer from the retention problem. Moreover, the PTAB found that Petitioner’s expert also failed to explain “why a general need to secure an earpiece . . . would lead to [the combination]” when “that function already is provided by the Sapiejewski device.” Thus, the PTAB agreed with Patent Owner and concluded, “Petitioner relies on a far too general reason to combine the references and engages in impermissible hindsight as to the particular combination of the teaching of Sapiejewski and Howes.” Because Petitioner failed to point out any factors that the PTAB misapprehended or overlooked in its decision denying institution, Petitioner’s request for rehearing was denied.
Notably, Petitioner also failed to convince the PTAB that it misapprehended or overlooked that the Patent Owner suppressed or concealed its invention by waiting an unreasonably long time to file its patent application. In denying rehearing, the PTAB explained that it considered and credited evidence submitted by Patent Owner that it tried and tested many different designs in order to perfect the claimed invention. Thus, the PTAB upheld its determination that Patent Owner successfully antedated a third prior art reference.
FreeBit AS v Bose Corporation, IPR2017-01309, Paper 10 (PTAB Jan. 23, 2018).
On January 12, 2018, the Federal Circuit vacated and remanded a district court summary judgment determination of no invalidity, as well as jury findings of willfulness and damages, in its decision in Exmark Manufacturing, Co. v. Briggs & Stratton Power Products Group, LLC. In particular, the Federal Circuit held the district court erred when it granted summary judgment of no invalidity to Exmark Manufacturing, Co. (“Exmark”) based solely on the fact that its patent survived multiple reexaminations involving the same art. The Federal Circuit also found insufficient evidence to support the jury’s damages award, and held the district court abused its discretion when it excluded certain evidence related to willfulness.
This appeal arose from an infringement suit filed by Exmark against Briggs & Stratton Power Products Group, LLC (“Briggs”) and Schiller Grounds Care Inc.1 (“Schiller”) for infringement of Exmark’s lawn mower patent in the District Court for the District of Nebraska. The Exmark patent generally claims a lawn mower having improved flow control baffles, which are metal structures under a mower deck that direct air flow and grass clippings during operation.
Before filing suit, Exmark placed its patent in a reexamination in which the PTO confirmed the patentability of its claim 1. Both Briggs and Schiller also requested reexaminations of the Exmark patent, asserting the same prior art that it raised in its invalidity defenses in the district court litigation. The district court stayed the litigation pending completion of the Briggs and Schiller reexams. The PTO confirmed patentability of claim 1 of the Exmark patent in both of those reexams as well.
Once the reexams completed and the district court lifted its stay, Exmark moved for summary judgment of no anticipation and no obviousness. The district court granted Exmark’s motion, holding that “no reasonable juror could find that the defendants have met their burden of proving by clear and convincing evidence that the claims of the patent are invalid,” in view of the fact that Exmark’s patent survived three reexaminations by the PTO.
On review, the Federal Circuit held that a reexamination confirming patentability of a claim is not, by itself, determinative of whether genuine issues of fact preclude summary judgment of no invalidity. The Federal Circuit reasoned that such a grant would improperly give complete deference and preclusive effect to the PTO’s patentability determinations, thus foreclosing challenges to validity in district courts. Rather, the deference owed to a decision of the PTO comes in the form of the presumption of validity, which can be overcome by clear and convincing evidence. The Federal Circuit recognized the logical appeal of Exmark’s argument that a party that was unable to invalidate claims before the PTO under the lower preponderance standard and applying a broader claim construction standard could not possibly meet its clear and convincing burden to prove invalidity in a district court. Nevertheless, the Federal Circuit held that substantive and procedural differences between the district court and the PTO, including the level of involvement permitted a challenger in an ex parte reexamination, preclude a district court from relying solely on the PTO’s determination to award summary judgment of no invalidity.
Briggs also challenged the jury’s approximately $24 million damages verdict on appeal. First, Briggs argued that Exmark’s expert failed to properly apportion the improved baffle feature claimed in the Exmark patent through the royalty base, rather than the royalty rate. The Federal Circuit rejected this argument, and held that the accused mower could serve as an acceptable royalty base so long as apportionment was then accomplished through the royalty rate: “The essential requirement is that the ultimate reasonable royalty award must be based on the incremental value that the patented invention adds to the end product.”
Second, Briggs argued that Exmark’s damages expert’s opinion was inadmissible because she failed to tie her royalty rate to the facts of this particular case. The Federal Circuit agreed with this argument. In particular, the Federal Circuit found that Exmark’s expert failed to show how her proposed 5% royalty rate connected to the relevant Georgia-Pacific factors. More specifically, the Federal Circuit held that it was not enough for Exmark’s expert to recite the advantages of the claimed invention. She was required to explain the extent to which those advantages factored into the 5% royalty rate. The Federal Circuit further held that some accounting must also be made for other components that Exmark’s expert stated did not influence the overall value of the lawn mowers.
In remanding the case for a new trial on damages, the Federal Circuit further held that the district court abused its discretion when it previously ruled that prior art is relevant to damages only to the extent that the prior art was commercialized. The Federal Circuit reasoned that the fact that some prior art mowers were not commercialized does not make them immaterial to determining the extent to which Exmark’s patented invention provides utility and advantages over the prior art.
Finally, Briggs argued that it was entitled to a new trial on willfulness and vacatur of the district court’s enhanced damages award based on the Supreme Court’s decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016). Before holding a trial on willfulness, the district court excluded Brigss’ evidence regarding the validity of claim 1 of the Exmark patent because it found Briggs’ litigation defenses unreasonable based on the standard set forth in In re Seagate Technology, LLC, 497 F.3d 1360 (Fed. Cir. 2007).
The Federal Circuit vacated the district court’s evidentiary ruling, holding that, under Halo, a jury must decide the entire willfulness determination, including whether a litigation defense is reasonable. Thus, the district court erred to the extent it excluded evidence relevant to Briggs’ state of mind at the time of the accused infringement. In remanding this aspect of the district court’s decision, the Federal Circuit instructed the district court to determine whether Briggs knew of the prior art at the time of the accused infringement, and should therefore, be granted a new trial on willfulness, or whether the previously-excluded evidence only relates to litigation-inspired defenses.
Exmark Manufacturing, Co. v. Briggs & Stratton Power Products Group, LLC, No. 8:10-cv-00187-JFB-TDT (Fed. Cir. Jan 12, 2018)
1 Schiller did not participate in this appeal.
The Patent Trial and Appeal Board (PTAB) recently denied institution of an inter partes review (IPR), holding that the patent at issue had an effective filing date antedating the primary prior art reference. The petitioners–ESET, LLC and ESET spol s.r.o. (collectively, “ESET”)–filed an IPR petition against U.S. Patent No. 8,079,086 (the “’086 Patent”). ESET concurrently moved for joinder with FireEye, Inc. v. Finjan, Inc., IPR2016-01444 (the “01444 proceeding”), which also challenged the ’086 Patent. The ’086 Patent is directed to systems and methods of protecting computers from malicious operations controlled by remotely operable code. The ’086 Patent is a continuation-in-part of U.S. Patent No. 7,613,926 (the “’926 Patent”), which was the subject of Palo Alto Networks, Inc. v. Finjan, Inc., IPR2016-00145 (the “00145 proceeding”).
ESET argued that the claims of the ’086 Patent are obvious in view of several combinations of prior art references, primarily relying on a reference titled Proof-Carrying Code (“Necula”). In the 01444 proceeding, Finjan argued that FireEye had failed to establish that Necula antedated the priority date of the ’086 Patent. ESET argued that the ’086 Patent was not entitled to a priority date antedating Necula because none of the patents or patent applications from which the ’086 Patent claimed benefit disclosed the specific limitations claimed by the ’086 Patent. The PTAB stated that it had analyzed the claims of the ’926 Patent in the 00145 proceeding and sided with the patent owner, finding that the disclosure provided sufficient written-description support. The PTAB noted that the claims of the ’086 Patent at issue contained limitations that were nearly identical to those of the ’926 Patent. For example, Claim 1 of the ’926 Patent recites “appending a representation of the retrieved Downloadable security profile data to the incoming Downloadable, to generate and appended Downloadable,” and Claim 1 of the ’086 Patent recites the same limitation without the words “retrieved” and “incoming”.
Given that the claim language of the ’926 Patent was nearly identical to that of the ’086 Patent, the PTAB held that the ’086 Patent shares essentially the same disclosure as the ’926 Patent. The PTAB also noted that the ’086 Patent incorporates the ’926 Patent by reference. The PTAB therefore denied ESET’s petition and joinder motion.
ESET, LLC v. Finjan, Inc., IPR2017-01969, Paper No. 8 (PTAB January 9, 2018).
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