In what is mecoming a more regular outcome, the Federal Circuit has again vacated a PTAB IPR holding — holding that the USPTO’s panel of Administrative Patent Judges failed to “adequately explain its reasoning on a point that was central to its analysis.”
This time the case involves a PTAB finding for the patentee — that the IPR challenger Arista had not proven obviousness (for several challenged claims of Cisco’s Patent No. 8,051,211). The identified failure was in addressing a particular argument for how the prior art taught the claimed invention.
Tunneling of Packets: Here, Cisco’s secure networking claims include, inter alia, “tunneling” through an intermediate network – where tunneling is defined as “transmitting a frame without examination, including in layer 2 and layer 3 communications.” Based upon some claim differentiation, the Board also found that “encapsulation and de-encapsulation” of a frame don’t count as “examination” in this scenario.
In short, while “transmitting a frame” during “tunneling” must be “without examination,” certain kinds of activities involving encapsulation and de-encapsulation are not part of the excluded “examination”—hence may be present in what still qualifies as “tunneling” under the ’211 patent.
Opinion at *5. The proposed prior art reference (Kunzinger) taught something akin to tunneling, but the PTAB concluded that its intermediary examined the packets. Arista argued that Kunzinger’s was working with the outer-header of an encapsulated frame — and thus was not examining the frame itself. The Board did not particularly address this argument.
Unlike the Federal Circuit itself, the PTAB is required to write final written decisions “to ensure that their [judgments] are not ‘arbitrary, capricious, an abuse of discretion, . . . otherwise not in accordance with law . . .[or] unsupported by substantial evidence.’” Pers. Web Techs., LLC v. Apple, Inc., 848 F.3d 987, 992 (Fed. Cir. 2017) (quoting the APA). The record must include all factual findings, and a “full and reasonable explanation” their foundation and reasoning.
Here, the court finds:
[T]he Board did not adequately explain why “transmission of the IPSec packet” in Kunzinger includes an “examination” excluded from the “tunneling” claimed in the ’211 patent, even while the described use of fields and tags in the ’211 patent is not such an excluded “examination.”
On remand, it will be interesting to see how the Board responds — likely adding a bit more to its 30 page opinion.
Last month, the Federal Circuit held oral argument in an appeal, styled Gilead Sciences, Inc. v. Merck & Co., Inc. (Appeal Nos. 16-2302 & -2615) from a judge’s decision which held a patent unenforceable — for unclean hands — after a jury returned a verdict of $200 million. A more detailed write up is here which includes a link to the oral argument.
Boiled down, in a bench trial after the verdict, the judge heard evidence that Gilead had agreed to share information with Merck regarding an antiviral agent against Hep C — provided Merck personnel working on Merck’s competing work be walled off rom the information. Gilead shared information on a call… and a Merck attorney who was on the call who was prosecuting a Merck competing application then amended claims to cover the Gilead product.
As a twist, the application that was amended supported the Gilead product, and the jury had found no derivation. The reason was that the amended Merck application had support for a large genus of compounds, but the amendment narrowed to a subgenus which included Gilead’s leading agent. In other words, Merck had invented the Gilead product, and so there was no but-for materiality (in any meaningful sense that I can see, at least).
In addition to this evidence, the district judge heard evidence of various litigation misconduct, testimony that seemed to change at trial, and other “smell test” issues. Based on what it saw, the district judge held the Merck patent unenforceable under the doctrine of unclean hands, setting aside the $200m verdict for Merck. The judge wrote in part:
“In this case, numerous unconscionable acts lead the Court to conclude that the doctrine of unclean hands bars Merck’s recovery against Gilead for infringement of the ’499 and ’712 Patents. Merck’s misconduct includes lying to Pharmasset, misusing Pharmasset’s confidential information, breaching confidentiality and firewall agreements, and lying under oath at deposition and trial. Any one of these acts— lying, unethical business conduct, or litigation misconduct— would be sufficient to invoke the doctrine of unclean hands; but together, these acts unmistakably constitute egregious misconduct that equals or exceeds the misconduct previously found by other courts to constitute unclean hands. Merck’s acts are even more egregious because the main perpetuator of its misconduct was its attorney.”
Gilead Sciences v. Merck & Co., Case No. 5:13-cv-04057 (N.D. Cal. June 2016).
On appeal, the CAFC panel asked questions which seemed to suggest they were wondering whether there was, in fact, derivation — despite the jury’s finding. From afar, that would seem to be a stretch, but the details may be there. Stay tuned on both aspects of this case.
The lesson, of course, is that it is imperative that people abide by NDAs (and protective orders with prosecution bars, and the like). I’ve been involved in cases involving alleged misuse of confidential information during prosecution, and the risks that arise when competitors exchange information — ranging from trade secret misuse, to sanctions, to things like Merck — abound. Lawyers need to police both their side — to abide by any agreement, by watching for misuse by experts, inventors, business people, and lawyers — as well as ensuring that their own personnel abide by the agreement. With parallel proceedings, continuing prosecution, and the circumstances where parties are focused on similar solutions to a problem, the need to do so is particularly critical.
This one is here. I’ll save you time and tell you that once you enter the claim (push return after each element), hit the print icon (upper left) to get your document.
AI is here and the question of whether you can, or should, use these types of things is something to ponder.
Oracle America, Inc. v. Google LLC (Fed. Cir. 2018) Read opinion
Panel: O’Malley (author), Plager and Taranto*
This is a huge decision on multiple levels, and the latest exchange in the long-running battle between Oracle (the copyright owner) and Google (the alleged infringer). In the first appeal, the Federal Circuit rejected Google’s arguments that the Java “packages” at issue were unprotectable under copyright law. The court remanded the case for further proceedings on Google’s fair use defense. (15 U.S.C. § 107) On remand, the district court held a jury trial on that issue. The jury found in favor of fair use and the district judge denied Oracle’s motion for JMOL.
Oracle appealed and the Federal Circuit reversed, essentially going all-in on the issue of copyright infringement when it comes to software. First, fair use is a question that is largely addressed de novo by appellate courts, and second, when it comes to software, the court’s analysis all but says (expressly so!) that fair use can never apply. This opinion comes on the shoulders of the same panel’s previous opinion concluding that Oracle’s API packages meet the requirements for copyright protection. I see the court as going “all in” here both by its adoption of a nondeferential standard of review (keeping in mind that Ninth Circuit law is controlling), as well as the combination of its conclusions on protectability and inapplicability of fair use in this context.
Standard of Review
In a detailed discussion of the standards of review, the Federal Circuit concluded that, under Ninth Circuit case law:
the jury role in determining whether fair use applies “is limited to determining disputed ‘historical facts’ not the inferences or conclusions to be drawn from those facts” (Slip Op. at 24); “[a]ll jury findings relating to fair use other than its implied findings of historical fact must, under governing Supreme Court and Ninth Circuit case law, be viewed as advisory only.” (id. at 26).
we must assess all inferences to be drawn from the historical facts found by the jury
and the ultimate question of fair use de novo, because the Ninth Circuit has explicitly said we must do so.
This framework should be familiar: it’s essentially the same approach that the court takes in reviewing nonobviousness determination, a fact that did not escape the court’s notice. Slip Op. at 25, n. 4. Since the meat of the fair use analysis is in the inferences drawn from the historical facts and the balancing of all the factors, the functional result of this standard of review was that the court largely reviewed the fair use determination de novo.
Fair Use Analysis
Much will be written about the court’s fair use analysis; most of it more insightful than anything I can offer. The court’s analysis draws heavily on Ninth Circuit caselaw. Here’s the gist:
Factor 1 (Purpose and character of the use): The Federal Circuit concluded that Google’s use was (a) Commercial; (b) Non-transformative. In addressing the “commercial” aspect, the court drew heavily on the reasoning of Harper & Row and Am. Geophysical Union, and barely mentioned Campbell. On the question of whether Google’s use was transformative, the court applied this requirement: “To be transformative, a secondary work must either alter the original with new expression, meaning, or message or serve a new purpose distinct from that of the original work.” Slip Op. at 31. There’s a lot of grist to grind here in the inevitable Supreme Court appeal. Bad faith didn’t play a role because (1) it’s one-directional, weighing only against a finding of fair use, and (2) there was no basis for disturbing the jury’s implicit finding of no bad faith.
Factor 2 (Nature of the copyrighted work): The Federal Circuit concluded that this factor did weigh in favor of Google, but it was the only one that did. Here, while the Java API may have met the minimum requirements for copyright protection, “reasonable jurors could have concluded that functional considerations were both substantial and important.”
Factor 3 (Amount and substantiality of the portion used): The Federal Circuit concluded that Google did not duplicate “the bare minimum of the 37 API packages, just enough to preserve inter-system consistency in usage,” thus copying only “only so much as was reasonably necessary.” Instead, the court concluded: “We disagree that such a conclusion would have been reasonable or sufficient on this record.” (Slip Op, at 46). Furthermore, “(e)ven assuming the jury accepted Google’s argument that it copied only a small portion of Java, no reasonable jury could conclude that what was copied was qualitatively insignificant, particularly when the material copied was important to the creation of the Android platform.” (Slip Op. at 47) (Is the court really saying that because the copied material was functionally important, therefore its copying was not fair use?)
Factor 4 (Effect upon the potential market): Either the most important factor or an equally important factor; maybe we’ll get more clarity on this in a Supreme Court opinion in this case. This is basically the derivative/licensed market issue, which commentators can go in circles about. The short of it is that the Federal Circuit reversed the district judge, agreeing with Oracle that the market harm was “overwhelming.”
Balancing: applying its de novo standard, the Federal Circuit concluded that Google’s use was not fair use. “There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” (Slip Op. at 54).
All that said, the court concludes by refusing to say that fair use can never apply to software–although it’s statement simultaneously declines to cross that line while implying that’s what it’s reasoning leads to:
We do not conclude that a fair use defense could never be sustained in an action involving the copying of computer code. Indeed, the Ninth Circuit has made it clear that some such uses can be fair. See Sony, 203 F.3d at 608; Sega, 977 F.2d at 1527-28. We hold that, given the facts relating to the copying at issue here—which differ mate-rially from those at issue in Sony and Sega—Google’s copying and use of this particular code was not fair as a matter of law.
Stay tuned for the en banc petition–or perhaps direct request for certiorari.
*Note that this is the same panel as decided the earlier appeal in this case. See13-1021.Opinion.5-7-2014.1
For the past few years, I’ve been working on a project with the working title “the Federal Circuit Database Project.” The goal of this project is to develop an accurate, reliable and transparent database containing information about the Federal Circuit’s patent law-related decisions that would be of interest to scholars, commentators and policymakers. In keeping with the public nature of the University of Iowa College of Law, I wanted the database to be accessible and usable by anyone.
The first stage of that project, now called The Compendium of Federal Circuit Decisions, is complete. The Compendium contains records for all documents released on the Federal Circuit’s website in an appeal arising from the USPTO or District Courts. In practice, this means all written opinions back to late-2004 and all Rule 36 affirmances since mid-2007, along with a smorgasbord of orders and errata. Each record contains multiple pieces of information about those documents, including whether the decision was precedential, who the authors are, whether there is a dissent or concurrence, the year of the decision, and more. The data and its interface was structured from the ground-up in a format that would be useful for people seeking quantitative data about the court’s decisions, rather than for the purposes of traditional legal research. The data export feature allows for all the information to be used in your favorite analytical toolset.
In order to kick off the Compendium, I wrote a short article describing the database and reporting some core descriptive statistics about the court’s decisions in appeals arising from the UPSTO and District Courts. The draft of that article, called TheLandscape of Modern Patent Appeals (forthcoming Am. U. L. Rev.) can be accessed here. It’s still in production–the graphs, in particular, are low-resolution placeholders.
Below are graphs that might be of particular interest to readers of this blog: the types of nonprecedential decisions in appeals arising from the USPTO and District Courts. The paper goes into more detail, but the short of it is that the frequency at which the court used Rule 36 affirmances fell substantially in 2017 (for district courts) and for both 2016 and 2017 (for the USPTO). There are many more descriptive statistics and graphs in the paper, including the proportions of Federal Circuit decisions that arise from the PTAB & BPAI versus the TTAB, degree of agreement among panel members, the rate of the court’s production of precedential opinions, and even per-judge authorship data.
Although the project is now at its first milestone, there is much more to be done. Future stages include adding new types of information to the records (such as subject-matter issues and disposition), adding documents in appeals arising from other sources, particularly the ITC, and improving the on-the-fly graphical functionality. Comments and feedback on the project are welcome if you email me directly.
Note: In order to continue with the soft opening, and to avoid the possibility of stress-testing the Compendium, I intentionally did not include a link directly to the database in this post. The Landscape of Modern Patent Appeals does contain the link. I’ll add it to PatentlyO in the near future.
A February 22, 2018 order in Merial Inc. et al. v. Abic Biological Labs. Ltd (Sup. Ct. N.Y.), here, enjoined King & Spalding from representing Abic Biological Labs (“Abic”) and Phibro Animal Health Corporation (“Phibro”) in an ICC arbitration where Abic and Phibro were adverse to Merial Societe Par Actions Simplifiee (“Merial SAS”), which was a former K&S client.
The evidence appears to have shown that K&S had represented Merial SAS, and related entities, from 1998 to at least 2011 concerning transactions and litigation in the animal health and vaccine space. K&S had also for many years represented Phibro and related entities in the animal health and vaccine space.
Merial SAS was acquired by Boehringer Ingelheim GmBH (“Boehringer”) in 2017, and K&S had represented an affiliate of Boehringer until December 2017. In the summer of 2017, Merial and Boehringer became cross-wise, and until then, none of the Merial parties knew that K&S had been representing Phibro.
In the summer of 2017, K&S wrote a letter to the person that it had often interacted with, the head of prosecution and litigation at Merial SAS (Dr. Jarecki-Black), explaining that K&S was representing Abic and Phibro in a licensing dispute they had with Merial SAS (and other entities). Dr. Jarecki-Black responded by asserting that K&S’ representation presented a conflict of interest and demanding that K&S withdraw. A few weeks later, the firm refused, explaining in a letter that it had represented different corporate entities in the matters Dr. Jarecki-Black pointed to, the matters were in all events unrelated to the ICC licensing dispute, and no K&S lawyer who was working against Merial SAS in the ICC matter had represented it previously. In response, Merial SAS reiterated its positions, and its letter also made a new (and very odd) argument: because the license in dispute included a New York choice of law clause, a California lawyer from K&S who was representing Phibro was engaged in the unauthorized practice of law. In its final letter, K&S reiterated that there was no substantial relationship between its work for and the work against Merial SAS, and made short shrift of the odd argument about the unauthorized practice of law.
It seems the parties could not agree on who was right, and instead Merial SAS filed suit in New York seeking an injunction to prevent K&S from being adverse to it (and Boehringer, and affiliated entities) in the ICC.
The court enjoined K&S. What struck me as quite concerning was that there was no overlap between patents or licenses K&S had worked on for Merial SAS and those in the ICC arbitration. Instead, the court noted that K&S “clearly knows a great deal about how the Merial entities approach issues relating to patents and licenses in the animal health and animal vaccine space.” The trial court emphasized that Merial SAS had relied on “a highly credentialed ethicist, Roy D. Simon” and noted that, although the decision was for the court to make, “King & Spalding offered no expert testimony to rebut Mr. Simon’s expert opinion.” The court then noted that “a reasonable lawyer like Mr. Simon came to the conclusion that King & Spalding’s multiple representations of [Merial SAS entities] on issues meaningful to the limited number of players in teh animal health and animal vaccine space would materially advance Abic and Phibro’s interests vis-a-vis Merial,” particular because Dr. Jarecki-Black “will play an integral role in Merial’s defense” in the arbitration.
There are several things of note. First, it is unusual for actual injunctions to be sought (rather than disqualification), and usually injunctions are litigated quite differently from motions to disqualify, but K&S appeared to litigated this as a basic disqualification motion. Second, from the opinion, at least, the injunction was granted based upon what is called “playbook” information — knowing how a client litigates or otherwise behaves, not actual specific confidential information — which is also atypical in some jurisdictions. Third, and from afar, this was not correctly decided, which underscores the point that whenever a firm is faced with a disqualification motion, it should consider the need for expert testimony (and Professor Simon is a highly credentialed ethicist; I don’t think he knows much about patents or licensing), and the need to show — although it’s the other side’s burden — there is no real risk of misuse of confidential information.
Important upcoming event at Harvard Law School March 29 on The Administrative-Private Law Interface in IP. Event Begins at 9:15 EST with four panels and keynote remarks from both Dave Kappos and James Smith.
Topics
Do Administrative Law and Private Law Mix in IP? (Arti Rai, Todd Rakoff, Kali Murray, Scott Kieff)
Oil States Energy Services, LLC v. Green’s Energy Group, LLC (Adam Mossoff, Sophie Wang, John Duffy, Caleb Nelson)
Preclusion and Deference (Melissa Wasserman, Megan La Belle, Kristin Hickman, John Golden)
The Antitrust-IP Intersection (Keith Hylton, Anne Layne-Farrar, Scott Hemphill, Einer Elhauge)
Over the last year or so, I’ve given a half dozen talks to practitioners about the differences between the duty of candor in PTAB proceedings compared to general prosecution and Therasense. Each time I do, I can tell the audience is learning that when you’re in IPR, you ain’t in Kansas any more.
The key issue is who is covered by a duty of disclosure. Under Rule 56, and Therasense, only the knowledge of persons “substantively involved” in prosecution “counts” and must be disclosed. (The language of Rule 56 says so, and the Federal Circuit has followed that language in a few cases even though technically it does not control inequitable conduct which is a statutorily-based defense under 282(b)(1) of the Patent Act.)
In contrast, in PTAB proceedings there are two rules that relates to candor, and they are extraordinarily (and, I believe, unintentionally) broad. (Rule 56 does not apply in prosecution; other rules do.). Oddly, neither rule is the same as Rule 56, and each rule also differs from each other — and for no apparent reason.
The general rule of candor in 37 C.F.R. 42.11(a) provides: “Parties” — stop there and think about what that means — “and individuals involved in the proceeding” — again, stop and recognize that substantive involvement in the proceeding is not required — “have a duty of candor to the Office during the course of a proceeding.” Yes, the rule says a “party” owes a duty of candor, so ostensibly the knowledge of every person who works for a party “counts.” How many people work for Google?
The other candor rule applicable in PTAB proceedings is triggered when a party files a paper with the Office. It provides that, unless the information has already been served, a party “must serve relevant information that is inconstant with a position advanced by the party during the proceeding” when filing the paper, and (now for the “who” part) this “requirement extend to inventors, corporate officers, and persons involved in the preparation or filing of the document or things.”
Notice that you cannot read either rule to means something less than what it says without running into basic statutory interpretation problems. For example, you can’t read it to mean “inventors and corporate officers who are involved in the proceeding” because that renders the words “inventors” and “corporate officers” superfluous.
So, when you’re involved in a PTAB proceeding, be very careful about whose information may “count” for purposes of inequitable conduct during the proceeding. To be clear: I think the rule can’t mean what it says, and I’ve advocated that both rules be changed to be identical to Rule 56 (in terms of who is covered, at least), but my belief doesn’t overcome the text of the rules.
My colleague, Professor Erika Lietzan (Missouri) has released a really interesting and thorough article walking through the history of the Hatch-Waxman legislation process beginning with some proposals in the 1970s through its passage in 1984. The article is important in the midst of increasing calls for reform of the system.
She writes:
[T]he conventional wisdom about the Hatch–Waxman Amendments — as a privately negotiated compromise between the innovative and generic industries in which each gained and each lost — is wrong. . . . The truth is more nuanced, and the balance of benefits and costs different.
Basically – and at the risk of oversimplification – Prof. Lietzan argues that this compromise analysis ignores the important expected broad social benefit of generic involvement championed by Rep. Waxman and Public Citizen. Lietzan writes that the outcome of this public alliance with generic entrants “made generic companies better off, and it made patent owners worse off.” That result cannot be explained by the traditional insider-negotiated story.
Read a draft here: Erika Lietzan, The Political Economy of the Hatch-Waxman Amendments (March 13, 2018). Seton Hall Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3140141
In 2011, Congress created a series of novel proceedings for private parties to challenge issued patents before the newly formed Patent Trial and Appeal Board (PTAB). While the PTAB proceedings are immensely popular, they have also been controversial. A series of legal challenges to these new adjudicatory proceedings are working their way through the federal judiciary and up to the Supreme Court, and the latter is deciding this Term the constitutionality of PTAB adjudication. Yet to date, there has been no sustained comparison of these new adjudicatory proceedings with other agency adjudications. This comparison could be provide numerous payoffs, including highlighting the unique facets of PTAB adjudication that may serve for successful legal challenges as well as providing opportunities for improving the decisional processes of adjudicatory boards.
In The New World of Agency Adjudication, we seek to begin this endeavor by situating PTAB adjudication in the modern administrate state. Every administrative law student learns the basics of “formal” adjudication under the Administrative Procedure Act (APA). The paradigmatic APA-governed formal adjudication involves an evidentiary hearing held before an administrative law judge (ALJ) wherein parties are entitled to oral arguments, rebuttal, and cross-examination of witnesses. The ALJ’s decision is then reviewable by the agency head, who typically can reverse the decision for largely any reason. Thus, the critical difference between APA formal adjudication—also known as Type A adjudication—and the judicial model is that the agency head has final decision-making authority.
The vast majority of agency adjudications today, however, do not take the form of APA-governed formal adjudication. The new world of agency adjudication comprises agency actions that are adjudicated by non-ALJ agency personnel that have diverse titles, such as administrative judge, administrative appeals judge, hearing officer, immigration judge—just to name a few. These non-ALJ judges have less independence and protections than ALJs. A substantial portion of these proceedings are known as Type B adjudications which still require evidentiary hearings, and hence are relatively formal. In contrast to APA governed formal adjudication, however, the APA imposes virtually no requirements on these proceedings including agency head review. Yet similar to Type A adjudication, a common feature of Type B adjudication is that the agency head has final decision-making authority.
How do the PTAB proceedings fit within this modern world of agency adjudication? Although the new PTAB proceedings have many of the hallmarks of APA formal adjudication, they lack at least two features that suggest they should not receive a Type A classification. Perhaps most saliently, the Patent Act requires these proceedings to be presided over by administrative patent judges, not administrative law judges. The second critical difference is that the Director of the Patent Office does not have final decision-making authority over PTAB determinations. Although an aggrieved party to a PTAB proceeding can file a request for a rehearing by the Board, the Director does not have the authority to review PTAB determinations as a matter of right. As a result, we argue the best understanding of PTAB proceedings is that they are Type B rather than Type A adjudication. The more difficult question is how do the new PTAB proceedings stack up to its Type B adjudication peers? We conclude quite favorably. Drawing on a recent ACUS study that focuses on identifying the best practices of Type B adjudications, we find that PTAB meets the majority of these recommendations and scores as well as most Type B proceedings.
Our Article concludes by exploring one critical difference between PTAB proceedings and most Type B adjudications: the lack of agency-head review of PTAB determinations. The standard administrative model vests final decision-making authority with the agency head for a number of reasons, including providing the agency head with policy control and the ability to bring consistency to the adjudicatory board decisions. While the Director does not have the authority to directly review PTAB determinations, she does have the ability to influence PTAB outcomes. More specifically, the Director can assign APJs to a panel that share her policy views in hopes that they will vote in accordance with her preferences. This “panel-stacking” often occurs once a rehearing and an expanded panel has been granted, so that the expanded, stacked panel reverses the original three-member decision.
Although we conclude that the Director’s designation procedures are statutorily authorized, we argue this procedure raises a colorable due process violation. Case law on permissible agency-head designation procedures is relatively sparse. One exception is the Sixth Circuit’s opinion in Utica Packing Co. v. Block, in which the Secretary of Agriculture replaced an agency adjudicator with another when the initial adjudicator failed to rule as she wished. The appellate court refused to accept the argument that the Secretary, having delegated to the agency adjudicator the original authority to resolve certain matters, could reappropriate that power at will based on disagreement with the adjudicator’s conclusions. Instead, the court held, “[t]here is no guarantee of fairness when the one who appoints a judge has the power to remove the judge before the end of proceedings for rendering a decision which displeases the appointer.”
Under the reasoning set forth in Utica, there is at least a colorable argument that the Director’s designation procedures raise substantial due process violations. Similar to the Secretary of Agriculture in Utica, the Director in effect removes the original panel before the end of the proceedings when she designates an expanded panel that she hopes will arrive at a different substantive outcome. Although the Director does not technically replace any judge, the practical effect of adding a sufficient number of new members to reverse the original panel decision is functionally equivalent to the Secretary of Agriculture’s removal of the judicial officer in Utica.
Given this colorable due process concern, our Article concludes by examining alternative mechanisms the Director of the Patent Office could utilize to ensure that PTAB consistently applies the agency’s policy preferences. While a congressional grant of agency head review would be the most straightforward way to proceed, our Article also urges the Patent Office to consider an increased reliance on rulemaking and precedential PTAB decisions. With respect to the latter, our Article encourages the Patent Office to consider streamlining the process by which it designates PTAB decisions as precedential to provide the Director with more unilateral authority in making this determination.
The current draft of our article is available on SSRN here. It’s forthcoming in the California Law Review in 2019, so there’s plenty of time for us to incorporate any comments you may have.
It’s an exciting time for Iowa Law–we have some phenomenal junior faculty members who joined us this past fall and, as of Tuesday, we have a new dean. Kevin Washburn, Regents Professor of Law and former dean of the University of New Mexico School of Law, will be joining the Iowa College of Law as its 18th dean in mid-June.
Dean Washburn has an amazing professional history, including serving as the Assistant Secretary of Indian Affairs from 2012-2016 (a position for which he was confirmed unanimously by the Senate), an AUSA in the violent crimes section of the Department of Justice, and General Counsel of the National Indian Gaming Commission. I’m ecstatic about the provost’s selection of dean Washburn and am looking forward to seeing where he leads Iowa Law.
I’m thrilled to announce that this fall’s Iowa Law Review symposium will focus on one of the most significant issues of patent law today: the intersection of patents and administrative law. The symposium, Administering Patent Law, is co-sponsored by the Iowa Law Review and the center I direct, the Iowa Innovation, Business and Law Center. I’m looking forward to both serious debates about the impact of this term’s Supreme Court decisions (especially Oil States v. Greene’s Energy) and more wide-ranging discussions about the place of patents, the patent office and patent law itself within the broader context of administrative law.
We have a phenomenal lineup of scholars, including both Professor Chris Walker of The Ohio State University Moritz College of Law and Professor Melissa Wasserman of the University of Texas School of Law, whose post on their recent article Situating PTAB Adjudication Within the New World of Agency Adjudication, I’ll be running shortly. You can read more about the October 5 symposium on the symposium website. I’ll post about public registration as we get closer to the date.
In the America Invents Act (AIA), Congress created two primary new forms of challenging issued patents in an administrative trial setting before the Patent Trial and Appeal Board. The more popular form is Inter Partes Review while Post Grant Reviews have seen less interest. The comparative popularity appears to stem primarily from the fact that IPRs can be used to challenge any issued patent — including pre-AIA patents and patents issued years-ago. PGRs, on the other hand has two important timing limitations: (1) PGRs are only applicable to post-AIA patents (effective priority date > March 2013); and (2) a PGR petition must be filed within 9-months after the patent grant. That said, IPRs have a comparative downside: While a PGR may challenge patent claims on any patentability ground (except best mode), IPRs are limited only to anticipation and obviousness challenges based upon prior patents and published prior art.
The Covered Business Method Review (CBM) program is added as a layer atop IPRs and PGRs. CBMs can only be used to challenge patents directed to financial, non-technological business methods. However, like PGRs, those CBM patents can be challenged on any ground (including eligibility, enablement, and indefiniteness). Further, like IPRs, CBM petitions can challenge any patent regardless of its filing and issuance dates.
The CBM program is also Transitional — it sunsets in two years 2020 (no petitions accepted after that date).
Rep. Issa is heading-up hearings and a review of the program to consider whether the CBM program should be made permanent and potentially expanded beyond its current narrow scope. Issa has stated he sees the program as a more efficient mechanism for eliminating low quality patents.
In the recent hearing, three witnesses testified:
David Hale – TD Ameritrade. “Thankfully, the America Invents Act appears to have turned the tide [against abusive patent litigation]. Upon the implementation of the CBM process, TD Ameritrade has actively used the process to combat several of the low quality patents brought against it, bringing a total of eight CBM petitions. [Testimony]
John Neumann – Government Accounting Office. “Stakeholders we interviewed generally agreed the effects of the CBM program on innovation and investment have been minimal or mostly positive.” [Report]
Aaron Cooper – Business Software Alliance and former Chief IP Counsel for Senate Judiciary Committee. “Programs that target specific areas of technology – such as the Transitional Program for Covered Business Method Patents (CBM Program) – are detrimental to the patent system in general, and the software industry in particular.” [Testimony]
Sarif Biomed v. Brainlab (Fed. Cir. 2018) [SarifBiomed]
Sarif’s patent is directed to a “computer-assisted microsurgery installation” couples position sensors with images to place the location of a tool within a fixed reference frame. U.S. Patent No. 5,755,725 (1993 priority).
In the dispute, Sarif first sued Brainlab for infringement. Brainlab responsively petitioned for inter partes review (IPR). That petition was rejected after the PTAB determined that it couldn’t decide anticipation because the claims were too indefinite. Although the PTAB statements denying the petition are not binding in any way, they are obviously influential. Here, the district court followed the PTAB and ruled that the claims were invalid as indefinite. In particular, the court looked at the following claim term:
(d) a computer adapted to: . . . (3) control position and displacements of the tool . . .
Although not in traditional means-plus-function language, the district court held that the claim lacks structure regarding the function of controlling position and displacement.
Claim 1’s “computer adapted to” perform this function is an insufficient disclosure of structure as there is no disclosure as to how the computer would perform the function. “[I]f a claim recites a generic term that, properly construed in light of the specification, lacks sufficiently definite structure to a person of ordinary skill in the art, the presumption is overcome and the patentee has invoked means-plus-function claiming.” Apple (2014). Moreover, as recently stated by the Federal Circuit in Williamson, “the fact that one of skill in the art could program a computer to perform the recited functions cannot create structure where none otherwise is disclosed.”
The claim lacked structure. It turns out that specification also lacked support for the claimed means and thus is indefinite under In re Donaldson Co., 16 F.3d 1189 (Fed.Cir. 1994) (en banc).
The appeal here does not focus on the merits of the indefiniteness discussion, but rather involves the accused infringer’s petition for attorney fees that was denied. On appeal here, the Federal Circuit has affirmed the lower court’s denial of fees — holding that the district court acted within its discretion in finding no “exceptional case.”
Law of Attorney Fees: The usual rule in patent litigation is that each party is responsible for compensating their own attorneys win-or-lose. The Patent Act authorizes a judge to order fee shifting, but only in “exceptional cases.” In Highmark and Octane Fitness, the Supreme Court collectively held that the exceptional case determination involves a flexible analysis involving the “totality of the circumstances” considered at the discretion of the district court. The analysis involves, inter alia, consideration of any unreasonable actions, party motivations, and strength of arguments. Because patent litigation is expensive, fee awards can easily reach into the millions-of-dollars.
On the merits here, the Federal Circuit agreed that Sarif’s claim construction position of no-means-plus-function was “well supported” – despite ultimately losing the case. Regarding the PTAB’s statement of invalidity, the Federal Circuit wrote:
Brainlab places too much significance on the PTAB’s determination. The PTAB does not have authority to institute an inter partes review under § 112. See 35 U.S.C. § 311(b). Therefore, as Brainlab admitted, any conclusion regarding indefiniteness is dicta.
Without the weight of that objective evidence of presenting weak arguments, it was easy for the Federal Circuit to affirm the denial of fees. AFFIRMED.
Indivior v. Dr. Reddy’s (Fed. Cir. 2018) [DrReddysOrder]
This “case” is actually a consolidation of 14 filed-appeals that collectively stem from six different district court cases involving three sets of appellants. In his consolidation order, the Federal Circuit Clerk Peter Marksteiner wrote:
The above-captioned appeals appear to be related. We consolidate the appeals, and thus one set of briefs should be filed for the appeals.
Order of November 1, 2017.
Rather than filing a single consolidated brief, the appellant’s filed three (Dr. Reddy’s; Teva + Watson; and IntelGenX + Par). Although each brief individually complied with the Federal Circuit’s 14,000 word limit — relied upon co-appellant briefs by incorporating-by-reference arguments made by co-appellants. For instance, Dr. Reddy’s brief explains: “The asserted claims of the ’514 patent are invalid as indefinite. DRL adopts by reference Par’s arguments on this issue.” The patentee then asked for extra space in its brief to respond to all of the arguments.
In a new (non-precedential) order, the clerk has attempted to resolve the issue by striking the briefs filed and demanding a single joint opening brief <18,000 words and then allowing the patentee to also file an expanded responsive brief.
One problem with the Court’s approach here is that it made no determination as to whether the incorporation-by-reference was problematic in this situation. In particular, Federal Rule Appellate Procedure 28(i) permits incorporation by reference in consolidated cases involving multiple appellants or appellees. In a parallel case, the 8th Circuit indicated that incorporation-by-reference in this situation does not count toward the word-limit. In re Target Corp. Customer Data Security Breach Litig., 855 F.3d 913 (8th Cir. 2017) (“Nothing in Rule 28(i) suggests that parts of briefs adopted by reference should be treated as literally incorporated into a party’s principal brief for wordcount purposes.”). In Microsoft Corp. v. DataTern, Inc., 755 F.3d 899 (Fed. Cir. 2014), the Federal Circuit barred a party from incorporating-by-reference (finding the incorporated argument waived). However, that case did not fall under R. 28(i) and so is distinguishable from this situation.
In its original decision, the PTAB cancelled claim 3 of Acceleron’s U.S. Patent No. 6,948,021 (inter alia). That holding was based upon an argument first presented by Dell at Oral Arguments (over Acceleron’s procedural objections). The Federal Circuit in 2016 vacated that first PTAB decision — “the Board denied Acceleron its procedural rights by relying in its decision on a factual assertion introduced into the proceeding only at oral argument, after Acceleron could meaningfully respond.” The Federal Circuit explained:
The agency must timely inform the patent owner of the matters of fact and law asserted . . . , must provide all interested parties opportunity for the submission and consideration of facts and arguments . . . and hearing and decision on notice, . . . and must allow a party to submit rebuttal evidence as may be required for a full and true disclosure
of the facts.
On remand, the Board rewrote its decision – this time excluding and ignoring Dell’s late argument and thus finding the claim valid.
On appeal again, the Federal Circuit has now affirmed the validity finding — holding that the Board properly ignored Dell’s argument – even though the result is that we confirm the validity of a patent claim that is thought to be invalid. The problem for Dell is that the procedural rules are clear – “No new evidence or arguments may be presented at the Oral Arguments.” (Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756 (Aug. 14, 2012)).
The primary holding here is that the PTAB was not required to allow for any re-briefing of the arguments and evidence. In its decision, however,, the Federal Circuit goes further and states that the Board could not reopen arguments even if had wanted to:
The Board was obligated to dismiss Dell’s untimely argument given that the untimely argument in this case was raised for the first time during oral argument. See, e.g., Wagner v. United States, 365 F.3d 1358 (Fed. Cir. 2004) (“[A]n agency is bound by its regulations.”); Dell contends that ignoring evidence of unpatentability is against public policy because it will not improve patent quality. We find that under these circumstances, due process and preserving the Board’s discretion outweigh any negative effects of not invalidating a patent claim, especially since our decision does not preclude another party from challenging the validity of claim 3 on the same basis.
This final quoted paragraph is potentially dicta, but will certainly carry the day within the Board.
Last week I posted a discussion of Prof. Hrdy’s intriguing new article on Technological Un/employment. Prof. Hrdy has now provided a short response that basically explains how I took a portion of her article (automation killing jobs) while ignoring other aspects of the 79-page article (e.g., many positive benefits of innovation, including job creation). – DC
by Prof. Camilla Hrdy
I am so honored that you found my article worth a post on Patently-O. In the nature of academic discussion and in good fun, I would like to briefly respond. (And please do feel free to post this).
First, I really appreciate the provocative title, “Prof. Hrdy: When Inventions Kill Jobs“, but want to add a bit more color. My thesis, as reflected by the title of my paper,Technological Un/employment, is that innovation, and thus intellectual property, both create and eliminate jobs. Historically, we have had more of the former than the latter.
Second, I think some readers may have come away with the idea that I am a bit of a Luddite, when I am the opposite. Innovation is good. No: innovation is great! It is the secret to economic prosperity and where the good jobs will come from in the future. I also believe IP is, on aggregate, good for innovation. As you astutely noted, my belief in the need for some form of regulation is motivated, at present, largely by distributional concerns, not by a fear of innovation itself. Even if technology won’t be doing all work by the year 2048, the number of humans needed to build, maintain, and operate that technology is dwindling, and access to jobs is increasingly restricted to highly educated people with unique opportunities — which most people do not enjoy. (Please see Part II of the Article). Those opportunities are also unequally distributed geographically, an issue I have raised in much of my work, particularly in my papers Cluster Competitionand Patent Nationally, Innovate Locally. If current trends continue, the job market will more and more resemble a pyramid consisting of a select few at the top with high quality jobs — and a lot of IP — and the rest of humanity unemployed or consigned to “gap filling” for the machines. I also think that when inventions make others’ skills completely obsolete, this resembles a negative externality not unlike pollution. (Please see Part IV). There is at least a case to be made that those who profit should have to internalize some of the harms their inventions impose on others.
Third, while I do support some form of regulation to help avoid these outcomes, I do not support denying patents on labor displacing inventions. While it (might have) made sense in Queen Elizabeth’s time, I reject a “labor displacing patent bar” in favor of more effective tools. Likewise, I oppose fully banning labor displacing inventions like self-driving cars. Instead, I suggest a small — key word small — tax on profits from certain innovations that are found, upon adoption, to displace a significant number of workers.
This “labor displacing IP tax” would have a two-fold effect. First, it would permit giving back to workers at least some of what they lose, either in the form of skills training or — hopefully we won’t come to this — a universal basic income in the scenario where skills training doesn’t help because machines are capable of performing most tasks in the economy. Second, a small tax on underlying IP would at most marginally slow down the pace at which companies take advantage of improvements in machine learning and develop ever-more sophisticated forms of automation. The leading alternative proposal is a “robot tax” levied on businesses that adopt labor displacing inventions. To me, it makes far less sense to tax the mom-and-pop restaurant that adopts software to keep costs low than it does to tax whichever mega company owns the intellectual property covering the software.
The reason I turn to regulation is not to halt innovation. It is so that we can innovate with abandon. Also, I have a video to respond to your creative use of the Mr. Rogers’ segment, courtesy of Daniel Day Lewis in There Will Be Blood: https://www.youtube.com/watch?v=a5d9BrLN5K4
In any event, thanks again for your thoughtful post. It is great to have this opportunity to engage in discussion on Patently-O.
Although the point of the new ABA Formal Ethics Opinion is important–“don’t reveal information relating to the representation”–its first paragraph appears at least a decade behind. The article begins:
Lawyers comment on legal topics in various formats. The newest format is online
publications such as blogs . . .
The line included a footnote explaining the term “blog.” As a an FYI – “Blog” was Merriam-Webster’s word-of-the-year in 2004.
“The newest format is online publications such as blogs . . . “ (followed by a FN explaining the term).
35 U.S.C. 112(a) requires that a patent specification include a “written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms.” That statutory language serves as the basis for the written description requirement — whose purpose is to ensure that “the inventor actually invented the invention claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336 (Fed. Cir. 2010) (en banc). Claims that were not sufficiently described in the originally filed specification will be deemed invalid or, if a priority filing is involved, the patentee will be barred from relying upon that document for its filing date.
Most often, the written description requirement arises in situations where the patent applicant substantially modified its patent claims during prosecution in a way that creates some distance between the original disclosure and the new claims. Commonly, the application will include a set of specific disclosures and the patentee will attempt to later amend its claims to cover a broad genus. (Recognize that in Ariad, the Federal Circuit explained that there can be a failure of written description with never-amended claims.)
In Hologic v. Smith & Nephew (Fed. Cir. March 14, 2018), patentee (Smith & Nephew) claimed the use of a light-guided endoscope for uteral surgery. The original specification of the parent application did not include the “light guide” language, but did explain that the endoscope included “a fibre optics bundle which provide for lighting at the end of [the] lens.” During prosecution, the examiner objected to the use of “light guide” in the claims since that term was never discussed in the specification — in response, the patentee amended the specification to state that the aforementioned firbre optics bundle is an example of a light guide: “a light guide such as, a fibre optics bundle which provide for lighting at the end of [the] lens.” (underlined language added to specification during prosecution). The disclosure also included drawings showing the connection between the lens and the light source.
The specification amendment satisfied the original examiner and U.S. Patent No. 8,061,359 was duly issued to Smith & Nephew. However, on inter partes reexamination, the new examiner raised the problem again – concluding that the disclosed single example of “fibre optics bundle” language did not satisfy the broad genus of “light guides.” The PTAB (Board) sided with the patentee. Although the Board identified the case as a “close call,” it ultimately held that the disclosure was sufficient to satisfy the written description requirement. On appeal here, the Federal Circuit has affirmed.
The written description inquiry begins with the “four corners” of the original patent specification as read from the perspective of a person of ordinary skill in the art. To satisfy test, the specification must describe the invention in a way understandable to that PHOSITA and that shows possession of the invention now being claimed. This is an objective inquiry and the court applies a reasonableness test — does the specification reasonably convey possession of the invention? Here, the question is whether the disclosure of fibre-optics reasonably conveyed the claimed “light guide.” As part of the analysis of the test, the court also considers the level of predictability — finding that this field (at least as far as equipment construction) is predictable. That conclusion means that “a lower level of detail is required to satisfy the written description requirement than for unpredictable arts.”
On appeal, it is also important to recognize that satisfaction of the written description requirement is deemed a question of fact. As such, Board conclusions are given substantial deference on appeal.
In walking through its analysis the Federal Circuit appeared to fully base its decision on two agreed-upon facts:
Everyone agrees that the patent discloses one light guide – the fibre optic bundle: “Board properly relied on the fact that the parties do not dispute that a
“fibre optic bundle” is a type of light guide.”
Everyone agrees that various types of light guides are well-known in the art: “Nor did the parties dispute that various types of light guides were well-known
in the art.”
Based upon these two facts (and presumably the predictability of the art), the Federal Circuit found that the validity conclusion appropriate:
Accordingly, we conclude that substantial evidence supports the Board’s finding that Emanuel PCT reasonably conveys to a person of ordinary skill that the inventor had possession of a “light guide.”
The bottom line is suggested by the article title: For Predictable Arts, the written description requirement to a claim for a genus is satisfied by disclosure of a single species of that genus along with the (later proven) fact that other members of the genus are also well known in the art.
Note here that the challenger also argued that the written description did not show the light guide being “permanently affixed” in the “first channel.” On appeal, the court also rejected those arguments.
Decision here authored by Judge Stoll and joined by Judges Newman and Wallach.
Guest Post by Gary M. Fox (garymfox@umich.edu), University of Michigan Law School
In Nautilus, Inc. v. Biosig Instruments, Inc., the Supreme Court articulated the standard for indefiniteness under 35 U.S.C. § 112: “[A] patent is invalid for indefiniteness if its claims, read in light of the specification delineating the patent, and the prosecution history, fail to inform, with reasonable certainty, those skilled in the art about the scope of the invention.”[1] Since then, courts have had nearly four years to apply this new standard.
I have previously argued that the reasonable-certainty standard might be understood as imposing two separate requirements: linguistic and physical definiteness.[2] Under my proposed framework, a claim is linguistically indefinite if it is open to multiple constructions but one construction is not clearly correct. Additionally, a claim is physically indefinite if it uses a comparative term or involves an ambiguous spatial relationship but is not limited to a narrow range. In this view, a claim that is either linguistically or physically indefinite fails to meet Nautilus’s reasonable-certainty standard.
Last week, the Federal Circuit handed down a nonprecedential decision in Capital Security Systems, Inc. v. NCR Corp.[3] In that case, the court considered whether two different claim terms were definite.
Capital Security holds four patents that are directed to an automated document cashing machine.[4] Three of those patents are continuation patents that share the parent patent’s specification and priority date.
The independent claims in the continuation patents contain the phrase “ascertains an apparent signature” or a highly similar variation.[5] For example, a representative claim includes the following limitation: “the processor reviews images from a legal amount recognition (LAR) line and a courtesy amount recognition (CAR) line and ascertains an apparent signature from the document image in order to validate the document.”[6]
The other term at issue was “transactional operator.” One claim in the parent patent includes the following language: “a transactional operator for operation by the user to perform a transaction upon deposit of sufficient cash by user for the requested transaction.”[7] The parent patent’s specification does not use the term “transactional operator,” but it does describe a microcomputer, keyboard, and display.
On NCR’s motion for summary judgment, the district court held that “ascertains an apparent signature” and “transactional operator” were both indefinite.[8] The court credited NCR’s expert, who offered four possible meanings for “apparent signature.”[9] NCR’s expert also offered three possible meanings for “transactional operator.”[10] In both cases, he testified that a skilled artisan would not have been able to decide amongst the possible options. The district court agreed and found the claims invalid.
In its decision on appeal, the Federal Circuit reversed the district court’s holding that “ascertains an apparent signature” was indefinite. The court reasoned that “a skilled artisan would understand the claimed ascertaining step to correspond to determining the presence of a signature on the signature line of a check.”[11] It found that the claim had been written to encompass all four of the options that NCR’s expert presented. The court rejected NCR’s argument that the term was indefinite because it was not tied to an “objective standard of measure.”[12] It also pointed out that Capital Security had not “muddle[d] the scope” of the term during prosecution.[13]
On the other hand, the Federal Circuit affirmed the district court’s holding that “transactional operator” was indefinite. The court noted that it was unclear whether that term included the microcomputer, the keyboard, and the display, or only a subset of those components.[14] During oral argument, counsel for Capital Security contended that the microcomputer and keyboard counted as the “transactional operator” but that the display did not count. Because “transactional operator” did not have a “commonly-accepted definition,” the court found the term indefinite.[15]
For both “ascertains an apparent signature” and “transactional operator,” NCR presented arguments grounded in linguistic indefiniteness. For each term, it asserted that there were multiple possible constructions but that no construction was clearly correct. That strategy makes sense. After all, the Federal Circuit had previously held claim terms with three or four possible meanings indefinite.[16]
For “ascertains an apparent signature,” the court essentially found that NCR’s expert presented a false choice among four constructions when the claim was drafted to encompass all four options. With one slightly broader construction that was clearly correct, any potential linguistic indefiniteness problem disappeared.
But for “transactional operator,” there was a legitimate linguistic indefiniteness problem. The court could not identify which components counted. For example, the “transactional operator” could have been the microcomputer and keyboard; the microcomputer and display; the keyboard and display; or the microcomputer, display, and keyboard. Even if some of these combinations were likelier than others, a skilled artisan would not have known which construction was correct. Therefore, the term suffered from linguistic definiteness.
As I have said before, my proposed framework of linguistic and physical definiteness might not work for every conceivable case.[17] But it seems to work for Capital Security Systems v. NCR, and it may be a helpful starting point for understanding the reasonable-certainty standard in the wake of Nautilus.
[2] Gary M. Fox, Note, Understanding Nautilus’s Reasonable-Certainty Standard: Requirements for Linguistic and Physical Definiteness of Patent Claims, 116 Mich. L. Rev. 329 (2017).
[3]Capital Security II, No. 2017-2368, 2018 WL 1181197 (Fed. Cir. Mar. 7, 2018).
[4] U.S. Patent No. 5,897,625; U.S. Patent No. 7,653,600; U.S. Patent No. 7,991,696; U.S. Patent No. 8,121,948.
[6]Id. at *2 (emphasis added by court) (quoting U.S. Patent No. 7,653,600 col. 39 l. 35 – col. 40 l. 11).
[7]Id. (emphasis added by court) (quoting U.S. Patent No. 5,897,625 col. 24 ll. 31–53).
[8]Id. at *3 (citing Capital Sec. Sys., Inc. v. NCR Corp. (Capital Security I), 263 F. Supp. 3d 1366, 1375 (N.D. Ga. 2017)).
[9] According to NCR’s expert, the four possible meanings were as follows: “(1) determining if anything in the way of a mark was present in the signature field, useful or otherwise; (2) distinguishing a mark resembling legible text from a mark never intended to be a signature, such as a scratch or smudge mark; (3) determining if the scanned image field corresponds to a handwritten cursive signature versus an otherwise legitimate block letter printed name; or (4) determining if the signature is forged.” Id. (quoting Capital Security I, 263 F. Supp. 3d at 1373).
[10] Again, according to NCR’s expert, the options for this term were “(1) a user interface allowing user selections; (2) an internal computer component like software executing an algorithm; or (3) a computer component that performs” a certain task. Id. at *4.
[16] Fox, supra note 2, at 344–45, 345 n.118 (first citing Teva Pharms. USA, Inc. v. Sandoz, Inc., 789 F.3d 1335 (Fed. Cir. 2015); then citing Dow Chem. Co. v. Nova Chems. Corp. (Can.), 803 F.3d 620 (Fed. Cir. 2015)).
