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Vexatious Litigants

Mankaruse v. Raytheon Company, 20-2309 (Fed. Cir. 2021) (nonprecedential) [Raytheon Vexatious Litigant] Nagui Mankaruse is a former Raytheon engineer and also a patentee. U.S. Patent No. 6,411,512. While an employee, he sued Raytheon for employment discrimination and was later fired.  (“Laid off due to a workforce reduction”).  He later sued Raytheon in California state for various claims, including trade-secret misappropriation, breach of contract, discrimination, etc.  California Code allows f...
Tags: Law, California, Patent, Fed, Raytheon, Federal Circuit, Raytheon Company, Mankaruse, Raytheon Vexatious Litigant -RSB- Nagui Mankaruse, Federal Circuit Nagui Mankaruse, US District Court C D Cal


Fast 101 has Lived Up to its Name

Fast 101 v. CitiGroup (Supreme Court 2021) Fast 101 lived up to its name.  Soon after the case was filed, Judge Andrews (D.Del.) dismissed the complaint for failure to state a claim. You guessed it, the claimed invention is directed to an abstract idea and therefor invalid under 35 U.S.C. 101.  Fast 101. Fast 101’s five asserted patents are all part of a single family and  claim “an invoiceless trading system that creates incentives for customers to pay suppliers within a predetermined period of...
Tags: Supreme Court, Law, Patent, Federal Circuit, Saks, Twombly, Bell Atl Corp, CitiGroup Supreme Court, Andrews D Del


Corporate Lies Lose Patentee Million Dollar Verdict.

by Dennis Crouch Cap Export LLC v. Zinus Inc. (Fed. Cir. 2021) Zinus is the owner of U.S. Patent No. 8,931,123, which covers a particular bed frame that can assembled at home. A key feature of the invention is that back-side of the headboard includes a zippered compartment that can hold all of the pieces.  Rather than simply a bed-in-a-box, it is a bed-in-a-headboard. The district court first sided with the patent challenger and awarded sua sponte summary judgment of obviousness based upon a bed...
Tags: Supreme Court, Law, Patent, Cap, Federal Circuit, Lawrie, Lowrie, Dennis Crouch, Keystone Driller Co, Lourie, Zinus, Cap Export LLC, Zinus Inc Fed, Zinus Colin Lawrie, Mercoid Corp, Mid Continent Inv Co


Discovery of Prior Settlement Agreements and Common Interest Privilege

by Dennis Crouch In re Modern Font Applications LLC (Fed. Cir. 2021) The Federal Circuit denied MFA’s petition for mandamus on a discovery dispute, and Chief Judge Prost but wrote an interesting short opinion explaining the panel’s reasoning.  In the case, MFA has asserted its U.S. Patent No. 9,886,421 that covers  a method of displaying “non-standard fonts” on your handheld device when accessing a network-document. Alaska Airlines is the defendant in this case and submitted a discovery request...
Tags: Law, Cheney, Patent, Alaska Airlines, Fed, MFA, Federal Circuit, Prost, FRCP, Dennis Crouch, Modern Font Applications LLC Fed, MSTG Inc


Invention of a Slave: 2021 Redux

by Dennis Crouch Tormasi v. Western Digital, Docket No. 20-1396 (Supreme Court 2021) Walter Tormasi is a prisoner in the New Jersey state prison system. He is serving a life sentence for murdering his mother when he was 16 years old after apparently receiving encouragement from his father, Attila. Tormasi is also a patentee.  His U.S. Patent No. 7,324,301 covers a computer hard-drive that allows for “simultaneously and independently” reading and/or writing on different carrier surfaces within t...
Tags: Supreme Court, Law, United States, New Jersey, Patent, Western Digital, Lewis, Trenton, Chen, Casey, Federal Circuit, Stoll, Wallach, John Kane, New Jersey New Jersey, Brooks Kushman


Pre-Invention Innovations Not Captured by Employment Agreement Duty to Assign

by Dennis Crouch Bio-Rad Labs, Inc. v. ITC and 10X Genomics (Fed. Cir. 2021) At its core, this is an employer-inventor dispute in the area of gene sequencing technology.  Saxonov & Hindson co-founded company QuantLife that was bought out by Bio-Rad. The pair then became Bio-Rad employees. At both companies they signed agreements to transfer invention rights to Bio-Rad. In April 2012 the pair left Bio-Rad; in July 2012 formed 10X; and began filing new patent applications in August 2012. These app...
Tags: Law, California, US, Itc, Patent, Fed, Bio Rad, Federal Circuit, Dana Farber, Dennis Crouch, USITC, Ono Pharm Co Ltd, Bio Rad Labs Inc, Saxonov Hindson, Hindson, Saxonov


Controlled substances, political ads and employee transfers

This week we highlight petitions that ask the Supreme Court to consider, among other things, whether doctors may argue “good faith” as a defense for violating the Controlled Substances Act in prescribing pain medication, whether the Philadelphia transit system can prohibit political advertisements on its buses, and whether an employee who is transferred to a new job with the same pay and benefits as before can bring a claim of employment discrimination. In Ruan v. United States, Dr. Xiulu ...
Tags: Featured, Minnesota, Supreme Court, Law, City, United States, Philadelphia, Savage, Kessler, Lehman, U S Court of Appeals, Federal Circuit, U S Court of Appeals for the Federal Circuit, 11th Circuit, Cole, 4th Circuit


One new case, two issues of appellate procedure

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here. A lot of movement on the relist front this week. The court granted review in relisted cases involving the first two amendments to the U.S. Constitution, summarily overturned a court of appeals decision in a relisted habeas case for the second time in a month, and denied leave to file an “original jurisdiction” lawsuit between two st...
Tags: Health, Featured, Maryland, Supreme Court, Law, United States, Johnson, DOE, Ericsson, Tcl, Ortiz, Scott, HARRIS, Allen, Dobbs, Fifth Third Bancorp


Amgen v. Sanofi: Generally an Attack on Functional Claim Language

by Dennis Crouch In their forthcoming article, Professors Dmitry Karshtedt, Mark A. Lemley & Sean B. Seymore argue that the Federal Circuit has improperly and unduly limited the ability of chemical and biotech innovators to obtain genus claims — i.e., claims that cover “not just one specific chemical but a group of related chemicals.” The Death of the Genus Claim, 35 Harv. J.L. & Tech. (forthcoming 2021).  Now, the trio (along with others) have taken their prior work and converted it to an amicu...
Tags: Law, Patent, Fed, Amgen, Sanofi, Biogen, Federal Circuit, Amgen Inc, Dennis Crouch, Fed Cir, Seymore, McRO Inc, Bandai Namco Games Am Inc, LDRL, Karshtedt Lemley, Lemley Sean B Seymore


Go Back To The Office You Drones! — See Also

This Square Footage Isn't Going To Justify Itself: Sullivan & Cromwell considered the increasingly modern trend of promoting remote working and scoffed. Former NYAG Disciplined: Remember when Eric Schneiderman was accused in these cases and Andrew Cuomo demanded he step down immediately? What a fascinating standard to deploy against other former NYAGs... Speaking Of Former NY Officials: FBI pays Rudy Giuliani a visit. Please Refile: The Federal Circuit is out of hand, but they're not as much ...
Tags: Law, Fbi, Andrew Cuomo, Rudy Giuliani, Sullivan Cromwell, Federal Circuit, Eric Schneiderman, See Also, NYAGs Speaking Of Former NY


The Public Private Nature of Patents

Patent law is a quirky mix of private and public law.  Individual inventors and their assigns are granted private property rights and the freedom-of-contract to license those rights as they see fit.  But, patents are designed to serve a public purpose, and  the courts have occasionally struck-down private agreements that go too-far — especially agreements that frustrate the invalidation or cancellation of wrongfully issued patents. In Kannuu Pty Ltd., v. Samsung Electronics Co., Ltd. (Fed. Cir. ...
Tags: Minnesota, Law, Samsung, FSC, Patent, Usc, NDA, Federal Circuit, IPR, Richard Epstein, Shawn Miller, PTAB, Jay Kesan Illinois, Mark Lemley Stanford, Inter Partes Review IPR, Brian Love


Naked TM Licensing Allowed, even if Insufficient establishing TM Rights

by Dennis Crouch The Federal Circuit has denied en banc rehearing in the interesting case of Authentic Apparel Group, LLC v. US.  In the case, the court enforced an agreement that was pretty-dang-close to a naked trademark license — holding that use of a mark for decoration on clothing still counts as a trademark-use for licensing purposes. In view of the clear shift in the law toward allowing trademark licenses, we do not agree with Authentic that a “decorative” use of a trademark is necessaril...
Tags: Law, US, Army, Patent, US supreme court, Fed, Federal Circuit, Dennis Crouch, Federal Circuit on TM Licensing, Authentic Apparel Group LLC


Punctilious Docketing Review

#appellatetwitter I looked at Federal Circuit appellate dockets from the 10 most recent decided appeals (from District Court). 10/10: EVERY DOCKET included at least one paper that had to be re-filed because of errors. pic.twitter.com/OovbF1t6og — Dennis Crouch (@patentlyo) April 27, 2021
Tags: Law, Patent, District Court, Federal Circuit, Dennis Crouch


Want an Eligible Patent: Explain the Technological Advance in Sufficient Detail

WhitServe LLC v. Dropbox, Inc., 19-2334 (Fed. Cir. 2021) (nonprecedential) The district court dismissed WhitServe’s patent infringement complaint with prejudice — finding the claims ineligible as a matter of law.  On appeal, the Federal Circuit has affirmed. WhitServe is the brainchild of patent attorney and inventor Wesley Whitmyer of Whitmyer IP Group.  The patent at issue here. U.S. 8,812,437. Claim 10, the focus of the case, is directed to an internet-based data-backup system and requires e...
Tags: Law, Patent, Fed, Federal Circuit, Dropbox Inc, Alice Mayo, WhitServe LLC, Wesley Whitmyer


Federal Circuit Transitions

As expected, the Federal Circuit has announced the upcoming transition of Chief Judge from Judge Prost to Judge Moore scheduled for May 22, 2021.  Judge Prost has served as chief for seven years, and Judge Moore will begin her seven year term.  According to the court announcement, Judge Prost will continue in active service. Congratulations to the Court on a successful transition. Earlier this year, Judge Wallach announced his upcoming move to senior status set for May 31, 2021.  President Biden...
Tags: Law, Biden, Patent, Moore, Federal Circuit, Wallach, Prost, United States Court of Appeals, Tiffany Cunningham, Federal Circuit Transitions, Moore Tiffany Cunningham


Guest Post by Prof. Dmitry Karshtedt: Nonobviousness and Time

Dmitry Karshtedt is an Associate Professor of Law at GW Law whose work I’ve followed for years.  Below he introduces the core idea underlying his new article on nonobviousness forthcoming in the Iowa Law Review.  -Jason Nonobviousness and TimeDmitry Karshtedt Over the years, courts and commentators have said many thoughtful things about secondary considerations evidence and its role in the law of § 103, and reasonable minds have expressed significant disagreement about the value of this evidence...
Tags: Apple, Supreme Court, Law, Time, Samsung, Iowa, Graham, Patent, John Deere, Federal Circuit, Teleflex, KSR, PHOSITA, Dmitry Karshtedt, Jason Nonobviousness, Graham Supreme Court


Assignor Estoppel at the Supreme Court

by Dennis Crouch The U.S. Supreme Court heard oral arguments on April 21, 2021 in the pending assignor estoppel case of Minerva Surgical Inc. v. Hologic Inc.   The basic idea is that an inventor who signs the oath-of-inventorship and assign rights to a third party is estopped from later challenging the patent’s validity in court.   The inventor here (Truckai) filed for patent protection and assigned rights in his inventions to the company he started. That company then sold rights to Cytyc Corp w...
Tags: Supreme Court, Law, Patent, Usc, Fed, U S Supreme Court, Congressional, Minerva, Lear, Federal Circuit, Hologic Inc, Adkins, Hologic, Scott Paper Co, Dennis Crouch, PTAB


Federal Circuit Moves Another Case Out of W.D.Tex.

In re TracFone Wireless, Inc. (Fed. Cir. 2021) In its second go-round in the case, the Federal Circuit has ordered District Court Judge Albright to grant TracFone’s motion to transfer its case to the S.D.Fla. on convenience grounds under 28 U.S.C. § 1404(a).  “We conclude that the district court clearly abused its discretion in denying transfer under § 1404(a).”  Generally, Section 1404(a) provides substantial discretion to the district court to determine whether or not to transfer a case to a d...
Tags: Florida, Law, Arizona, Delaware, Patent, Miami Florida, Albright, Fla, Federal Circuit, Mankato, Waco Texas, TracFone, Tex, TracFone Wireless Inc Fed, Patentee Precis, Karvenon


Sua Sponte Claim Construction

Olaf Sööt Design, LLC v. Daktronics, Inc. (Fed. Cir. 2021) Sööt’s patent covers a winch system used for major theatre productions.  A jury found Daktronics Vortek product infringed under the doctrine of equivalents and awarded $1 million in damages. On appeal, the Federal Circuit reversed, holding that “Under the proper construction, the Vortek product does not infringe claim 27 either literally or under the doctrine of equivalents.” The problem with this decision is that neither party appealed ...
Tags: Law, Patent, Federal Circuit, Markman, Soot, Olaf Sööt Design LLC, Sua Sponte Claim Construction, Daktronics Inc Fed, Daktronics Vortek


Amgen v. Sanofi: Who Decides Full Scope Enablement

by Dennis Crouch Amgen Inc. v. Sanofi-Aventis (Fed. Cir. 2021) Patent claims typically cover an infinite number of potential infringing embodiments.  This seemingly renders true full-scope enablement an impossible task.  But the metaphysics are an illusion.  If we want valid patents, then there has to be some “good enough” threshold for enablement. The focus in Amgen is a particularly tricky type of claim: genus claim with functional limitations.  Here, the claim is directed to an isolated monoc...
Tags: Supreme Court, Law, Court, Whitney, Wood, Patent, Fed, Hyde, Amgen, Sanofi, Underhill, Federal Circuit, Amgen Inc, Mowry, Dennis Crouch, AK Steel Corp


Supreme Court on Patent Law for April 2021

by Dennis Crouch Here is a rundown of what’s happening with US Supreme Court cases: Decided: The court recently decided Google LLC v. Oracle America, Inc., holding that Google’s use of Oracle’s Java API was a fair use and therefore not copyright infringement.  The court made no determination as to whether the API was actually copyrightable in the first place. The case does not expressly decide any patent law issues, but does provide some guidance as to how courts should approach mixed questions ...
Tags: Google, Supreme Court, Law, Senate, US, United States, Commerce, Oracle, Patent, US supreme court, Stuart, Ftc, Kessler, Illumina Inc, Rick, PTO


US vs China – Moving toward Global Injunctions

by Dennis Crouch Ericsson v. Samsung, Docket No. 21-1565 (Fed. Cir. 2021) I wanted to briefly highlight this important pending Federal Circuit appeal involving parallel litigation in both the US and China. The Swedish company wants to litigate in the US, while the Korean company wants to litigate in China. US Case: Ericsson Inc. v. Samsung Elecs. Co., No. 2:20-CV-00380-JRG (E.D. Tex. Jan. 11, 2021) Chinese Case: Samsung Electronics Co., Ltd. et al. v. Telefonaktiebolaget LM Ericsson, (2020) E...
Tags: Texas, Law, China, US, Samsung, Patent, Wuhan, Ericsson, Fed, Samsung Electronics Co Ltd, Federal Circuit, Texas Court, Ericsson Samsung, China US, Dennis Crouch, FRAND


Kessler Doctrine: Does it Survive?

In May 2020, the Supreme Court decided the trademark case of Lucky Brand  Dungarees, Inc. v. Marcel Fashions Grp., Inc., 140 S. Ct. 1589 (2020) and expressly refused to extend preclusion doctrines in the trademark realm beyond their traditional bounds set by the doctrines of issue and claim preclusion. One month later, the Federal Circuit decided In re PersonalWeb Techs. LLC,  2020 WL 3261168 (Fed. Cir. June 17, 2020) and happily extended a quirky patent law preclusion doctrine beyond those trad...
Tags: Supreme Court, Law, Congress, Court, Patent, Kessler, Fed, Federal Circuit, Fed Cir, PersonalWeb, Eldred, Lucky Brand Dungarees Inc, PersonalWeb Techs LLC, Brain Life LLC, Elekta Inc, Marcel Fashions Grp Inc


U.S. Supreme Court Upholds Fair Use in Google-Oracle Software Battle (Guest Blog Post)

By Guest Blogger Tyler Ochoa [BONUS: Prof. Ochoa will be speaking on this case April 13, 6pm Pacific. Free registration.] On April 5, the U.S. Supreme Court held 6-2 that Google’s copying of 11,500 lines of code from the Java SE Application Programming Interface (API) in creating its Android operating system was a fair use.  Google LLC v. Oracle America, Inc., No. 18-956.  Writing for the majority, Justice Breyer declined to answer the first question presented in the petition for certoriari: “Wh...
Tags: Apple, Google, Android, Usa, Supreme Court, Microsoft, Law, Congress, Court, Copyright, United States, Sun, Sony, Silicon Valley, Warhol, Lotus


MedImmune Licensee Standing Does not Apply to Portfolio License

by Dennis Crouch The Federal Circuit’s new decision in Apple Inc. v. Qualcomm Inc. (Fed. Cir. 2021) offers an interesting standing puzzle. After some heated litigation, Apple licensed 20,000+ Qualcomm patents as part of a six-year covenant-not-to-sue which resulted in the litigation being dismissed with prejudice.  Meanwhile, the parallel inter partes reexaminations (IPRs) moved forward with regard to two particular Qualcom patents within the package of 20,000+. Although the PTAB granted Apple’s...
Tags: Apple, Supreme Court, Law, Medimmune, Qualcomm, Patent, Apple Inc, Federal Circuit, IPR, Genentech Inc, Dennis Crouch, PTAB, MedImmune Inc, Qualcomm Inc Fed


Google v. Oracle and the Mixed Question of Law and Fact

by Dennis Crouch In Google LLC v. Oracle Am., Inc., 593 U. S. ____  (2021), the Supreme Court spends a few pages walking through procedural aspects of the fair use defense. Like many patent law doctrines, fair use is a mixed question of law and fact. The defendant’s use of the asserted copyrighted work and its impact on the plaintiff are typically factual issues that must be proven by evidence as weighed by the factfinder (often a jury). These are questions such as “how much of the copyrighted w...
Tags: Google, Supreme Court, Law, Court, Village, Amd, Oracle, Patent, U S Bank, Federal Circuit, FRCP, Dennis Crouch, Markman, Oracle Am Inc, Westview Instruments Inc, Google LLC


Google v. Oracle: Use of Oracle’s API is a Fair Use

Google LLC v. Oracle America, Inc. (Supreme Court 2021) In a 6-2 decision authored by Justice Breyer, the Supreme Court has held that Google’s copying of the JAVA API naming convention was a fair use as a matter of law.  The court did not decide the question of whether the API was copyrightable in the first place. In his dissent, Justice Thomas (joined by Justice Alito) argues that the majority opinion “disregards half the relevant statutory text and distorts its fair-use analysis. . . . Oracle’...
Tags: Google, Supreme Court, Law, Sun, Java, Oracle, Patent, Thomas, Alito, Federal Circuit, Google LLC, Oracle America Inc Supreme Court, Justice Breyer the Supreme Court


Studying Nonobviousness

By Jason Rantanen There are lots of quantitative studies of patent litigation appellate court decisions, going all the way back to P.J. Federico’s 1956 article Adjudicated Patents in the Journal of the Patent and Trademark Office Society.  One of the big limitations of these studies, though, is that there hasn’t really been any work done to examine how replicable their observations are – even for variables as seemingly simple as whether the court affirmed or reversed on a particular issue, or re...
Tags: Law, Patent, Federal Circuit, Rantanen, Teleflex, Jason Rantanen, KSR, Trademark Office Society, Ryan Holte, P J Federico, Abigail Matthews Lindsay Kriz


Certificates of Correction 2021

by Dennis Crouch For the most part, Certificates of Correction are boring, simple, and quite common. 35 U.S.C. § 254 & 255 provide for correction of minor mistakes by the PTO and applicant respectively.  PTO mistakes are fixed when a mistake is “clearly disclosed by the records of the Office.”  For applicant-mistakes, the correction is allowed for “clerical or typographical nature, or of minor character” made in good faith.  Larger mistakes should be corrected via Reissue.  Errors can also be co...
Tags: Law, AIA, Patent, Fed, Board, Honeywell, PTO, Federal Circuit, Dennis Crouch, Fed Cir, PTAB, Arkema Inc, SIPCO LLC, Honeywell Intl Inc, PGR Panel, Election Sys Software LLC



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