Supreme Court Patent Update for January 2018

by Dennis Crouch

The Supreme Court has heard oral arguments in Oil States and briefing is ramping-up in one additional case, WesternGeco, that focuses on lost profit damages for international activities.

A fairly large number of petitions for writ of certiorari are pending – however, the questions presented lack diversity.  The vast majority of the pending petitions are Oil States follow-on cases that basically ask whether the post-issuance review proceedings are constitutional.  Other topics of pending petitions: Dealing with ‘evidence’ in eligibility decisions; Limits on ‘teaching away’ in obviousness; apportionment of lost profit damages; assignor estoppel; defining ‘exceptional case’ for attorney fees; and whether the Federal Circuit must issue reasons for its decisions.

Eligibility:

Obviousness:

  • Nidec Motor Corporation v. Zhongshan Broad Ocean Motor Co., Ltd., et al., No. 17-751 (Obviousness: does ‘teaching away’ requires express criticism; also Oil States issue)

Damages

  • EVE-USA, Inc., et al. v. Mentor Graphics Corporation, No. 17-804 (Apportionment and Assignor Estoppel)
  • NOVA Chemicals Corporation (Canada), et al. v. Dow Chemical Company, No. 17-564 (attorney fees – how exceptional)

Review of PTAB:

  • Google LLC v. Unwired Planet, LLC, No. 17-357 (Does the Federal Circuit has jurisdiction to review the PTAB determination that a patent is a “covered business method” patent; What level of deference should be given to PTAB decisions).
  • PNC Bank National Association, et al. v. Secure Axcess, LLC, No. 17-350 (parallel court proceedings: when is PTAB proceeding moot?)

Rule 36 No Opinion Judgments:

  • Celgard, LLC v. Joseph Matal, Interim Director, United States Patent and Trademark Office, No. 16-1526 (“Does the Federal Circuit’s issuance of Rule 36 judgments without opinions for the disposition of appeals from the Patent Office violates 35 U.S.C. § 144’s requirement that the Federal Circuit ‘shall issue’ its ‘mandate and opinion’ for such appeals?”; Also Oil States issues)
  • C-Cation Technologies, LLC v. Arris Group, Inc., et al., No. 17-617 (also raises Oil States issues)
  • Integrated Claims Systems, LLC v. Travelers Lloyds of Texas Insurance Company, et al., No. 17-330 (also raises Oil States issues)
  • Petter Investments, dba Riveer v. Hydro Engineering, No. 17-1055

Oil States Follow-On

  • Uniloc USA, Inc., et al. v. SEGA of America, Inc., et al., No. 17-1018
  • Worldwide Oilfield Machine, Inc. v. Ameriforge Group, Inc., No. 17-1043
  • KIP CR P1 LP, Successor in Title to Crossroads Systems, Inc. v. Oracle Corporation, et al., No. 17-707 and 17-708 (Response Requested by SCOTUS)
  • Hitachi Metals, Ltd. v. Alliance of Rare-Earth Permanent Magnet Industry, No. 17-768 (Response Requested)
  • Enova Technology Corp. v. Seagate Technology (US) Holdings, Inc., et al., No. 17-787 (Response Requested)
  • AT&T Intellectual Property II, L.P. v. Joseph Matal, Interim Director, United States Patent and Trademark Office, No. 17-643
  • Audatex North America, Inc. v. Mitchell International, Inc., No. 17-656
  • Hillcrest Laboratories, Inc. v. Movea, Inc., No. 17-39
  • Affinity Labs of Texas, LLC v. Joseph Matal, Interim Director, United States Patent and Trademark Office, No. 17-117; 17-232; 17-232
  • Affinity Labs of Texas, LLC v. Samsung Electronics Co., Ltd., et al., No. 17-116
  • IPR Licensing, Inc. v. ZTE Corporation, et al., No. 17-159
  • Paice LLC, et al. v. Ford Motor Company, No. 17-221; 17-220; 17-229; 17-112; 17-113; 17-111; 17-110; and 17-222.
  • Security People, Inc. v. Joseph Matal, Interim Director, United States Patent and Trademark Office, et al., No. 17-214
  • Outdry Technologies Corporation v. Geox S.p.A., No. 17-408
  • Skky, Inc. v. MindGeek, s.a.r.l., et al., No. 17-349
  • TransPerfect Global, Inc. v. Joseph Matal, Interim Director, United States Patent and Trademark Office, No. 17-535

39 thoughts on “Supreme Court Patent Update for January 2018

  1. 6

    U.S. Patent No. 9,069,648 is titled “Systems and methods for delivering activity based suggestive (ABS) messages.” The patent describes sending “motivational messages,” based “on the current or anticipated activity of the user,” to a “personal electronic device.” The patent provides examples such as sending the message “don’t give up” when the user is running up a hill. The examples aren’t limited to health or exercise. For example, the patent suggests sending messages like “do not fear” and “G 0 d is with you” when a “user enters a dangerous neighborhood.”

    The patent’s description of its invention is filled with silly, non-standard acronyms like ABS for “activity based suggestive” messages or EBIF for “electronic based intelligence function.” These silly acronyms create an illusion of complexity where plain, descriptive language would reveal the mundane nature of the supposed invention. For example, what the patent grandly calls EBIF appears to be nothing more than standard computer processing.

    The ’648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one of the people behind it has been involved in massive patent tr 0lling campaigns before. And the two named inventors have both been inventors on patents that tr 0lls have asserted hundreds of times.

    These people should be disbarred from practicing before the PTO.

    1. 6.1

      Your feelings are noted.

      1. 6.1.1

        This is a perfect response anon. Perfect.

  2. 4

    I’m looking forward to the Oils States case decision. Regardless of how this controversy is resolved, these opinions and briefing highlight how some form of distinction between public and private rights has become vital to allocations of power in the modern administrative state. The Court’s most recent articulations of how to make this distinction seem to focus more on defining the “public” side of the divide than the “private” one.

  3. 3

    The Supreme Court has heard oral arguments in Oil States and briefing is ramping-up in one additional case, WesternGeco, that focuses on lost profit damages for international activities.

    No love for SAS Institute v. Matal? :P

  4. 2

    The only one that has a chance is the Eve v. Mentor Graphics case involving assignor estoppel and apportionment. Both issues are interesting.

  5. 1

    The Cleveland Indians will stop using the Chief Wahoo logo on their uniforms beginning in 2019, according to Major League Baseball, which said the popular symbol was no longer appropriate for use on the field.

    [insert sad trombone sound for the miserable Repu k k kes and glibertarians here who complain that “political correctness” is the “worst thing ever” — yes, you are on the wrong side of history and yes you will continue to be mocked for the r@ cist, mis 0 gynist h0 m0ph0 bic @ h0les that you are]

    1. 1.1

      Your spin is decidedly odd – as unsurprising as your “one-bucketing” is.

    2. 1.2

      On the contrary, this is exactly what the libertarians wanted to happen. The private organization gets to make their own call about what they feel is appropriate and not appropriate for themselves instead of MM et al. in Washington telling them and making them do whatever they want.

      1. 1.2.1

        6,

        Your point, while accurate, sails well over the head of Malcolm who was too busy lumping anyone – and everyone – who does not Belieb as he does into one bucket for his mindless ad hominem.

        1. 1.2.1.1

          one bucket

          Remember, folks: “anon” is the guy who spent years here discussing his paranoia about “leftists” and “ivory towerist” comin’ to take away everyone’s private property. And we’re going to force him to talk like us, too!

          Oh, it’s so scary! But he’s not a “one bucket” guy. Nope. He’s a real open-minded glibertarian. Very serious! Plus he’s got that protest vote thing goin on.

          LOLOLOLOLOLOLOLOLOLOLOLOLOLOLOLOL

          1. 1.2.1.1.1

            You do not seem to get this concept at all….

            My posts – explicitly those that you note – point to a NON “one bucket” approach. Importantly, I point out that there exists multiple philosophical drivers for attacks on the patent system.

            Pay attention – my posts are the opposite of yours.

            1. 1.2.1.1.1.1

              My posts – explicitly those that you note – point to a NON “one bucket” approach

              You keep telling yourself that! I’ll be you’re almost convinced. Try using bold and caps. That’ll really devastate you.

              1. 1.2.1.1.1.1.1

      2. 1.2.2

        The private organization gets to make their own call about what they feel is appropriate

        They “made their own call”?

        ROTFLMAO

        MM et al. in Washington

        LOL I’m not in Washington. And I’ve never even been to Cleveland.

        I’m just a guy on the Internest call you a r@ cist mi s0gynist @ h0le because, hey, that’s what you are. And I encourage others to do the same. That way when you’re in public you’ll know to keep your mouf shut. Just like the Cleveland Indians “somehow” figured it out.

        You will, too, 6! Or else you’ll just keep getting laughed at. Or worse.

        [shrugs]

        1. 1.2.2.1

          ” That way when you’re in public you’ll know to keep your mouf shut.”

          I lol at leftists calling everyone not in their little cult raycyst re re Boomer.

          1. 1.2.2.1.1

            I lol at “leftists” because as soon as you hear it you know the utterer is MAWA d—chebag of the lowest order.

        2. 1.2.2.2

          Also MM brosef I should just bring to your post to everyone’s attention as a historical artefact. That post is exhibit A of what unlimited muh victim power going to one’s head will do, and is an example of the willingness to misuse muh victim power.

          This cannot and will not long be tolerated.

          1. 1.2.2.2.1

            You lost me there 6… not sure what you are saying

            1. 1.2.2.2.1.1

              MM is absolutely gleeful at the mere prospect, or even perceived prospect, of falsely accusing someone of being a “ra cist” and getting the other person socially and perhaps politically shamed and/or assaulted (or worse). This is the muh victim power, social shaming/instigating supposedly on behalf of his muh victims, “going to his head” and is a misuse of power. And it is happening all over the place and thus cannot and will not long be tolerated socially. That is the way of social attitudes throughout history. It is and will continue to happen, make no mistake about it. And no amount of propaganda will make it otherwise.

              But the real part that I love is his absolute glee on display. The absolute glee.

              1. 1.2.2.2.1.1.1

                Meh, as I recall, you yourself liked to try that approach with me (attempted shaming through your own false shameless accusations – vis a vis the “meds” accusations).

                A response – as I demonstrate here is to draw attention to the tactic and invite a response on the merits.

                As we can see, those kvetching often really only want to kvetch and do not want to actually engage in a dialogue on the merits.

                1. Now now anon, for the thousandth time, pointing out your OCPD is not meant to “shame” you. I have sympathy for the legit mentally ill. And I have to say, I think you’ve done some better in recent days. Not literally everyone has been “wrong” about literally everything, according to you. You’re not constantly provoking people to JADE. Whatever has developed for you it has been for the better.

                  In either event, I certainly wasn’t trying to get you beaten up. I obviously care little about social shaming from an old dude wearing a pussy hat. The only thing that concerns about leftists is antifa etc. idi ots randomly getting violent “on behalf of” their muh victims because of muh racism that’s “everywhere”.

      3. 1.2.3

        6, good point here.

        Times change. What use to be acceptable no longer is. Companies need to change accordingly.

        But that should be the decision of the company.

        MM likes benevolent dictatorships — the nanny state where the nameless, faceless bureaucrat decides for you. It is simply amazing how times have changed.

        It wasn’t that long ago that kids could ride bikes without helmets. Ditto, Dads with their bigger bikes. Car seats for kids? Mandatory.

        Today, everything is supervised play. Once, kids roamed the neighborhood until dad called them home. This modern America is certainly strange.

        1. 1.2.3.1

          Companies need to change accordingly.

          But that should be the decision of the company.

          Corporations uber alles!

          You gotta love it when the truth leaks out.

          1. 1.2.3.1.1

            ? Your “leaks out” does not fit here Malcolm.

            “decision of a company” does not equate to an “”uber alles” response.

            Believe me, I am not a fan of the unrestrained rights that a mere juristic person in the form of the corporation and the outsized “voice” that such decisions such as Citizens United have unleashed, but your comment is just not sustainable.

            1. 1.2.3.1.1.1

              Companies will change their greedy @ h0le behavior when we the people force them to change.

              See, e.g., the history of the United States.

              My g0b but the bl0g is really filled with some dense glibertarian shirth0les.

              1. 1.2.3.1.1.1.1

                Your reply remains off kilter.

                “force them to change” is FAR too heavy handed, and does not reflect the reality that even businesses make choices (and the choice is theirs and not something that is “FORCED” as you seem to be pretending.

                Name calling – especially when those names fit your own behavior is just more of the typical Malcolm blight.

              2. 1.2.3.1.1.1.2

                “Companies will change their greedy @ h0le behavior when we the people force them to change.”

                According to leftists this hasn’t changed even a little bit through the whole of merican history. Indeed, corporations just appropriated your leftism in some quarters to boost business (see starbucks/google/etc). They’re still 100% “greedy”.

                The only way for you to change corporations at this point is to overthrow the white cis hetero christian capitalist patriarchy. You know it and I know it. Further, if you want it done in your lifetime or children who are alive now lifetimes (or likely 100’s of years after that) then it will have to be a violent overthrow. You’re not prepared for such an undertaking, and even if you were you’d still nearly surely fail even if every commie gubmit in the world offered material support.

                1. The Cleveland Indians’ move now – coming AFTER Tam and the Washington Redskins cases have been thrown out show the OPPOSITE of what Malcolm claims.

                  There was no commune of people that FORCED the corporation to do anything.

                  The corporation decided to do what it decided to do.

                  If they changed their minds again, such would – as here – not be a measure of being FORCED by anyone.

                2. “There was no commune of people that FORCED the corporation to do anything.”

                  In his mind it was tots that everyone’s mind was so PC controlled that the “power of the market” forced the corporation to change. Never mind that this didn’t actually happened and it is one of the stu pidest looking emblems of any teams everywhere (literally a caricature). Never mind that logos with the old caricature will still be sold in limited quantities for old fans. It was the “powa of good” triumphing lol.

                3. He does not believe in the power of the market.

                  He believes in “Central Planning” and the power of the commune.

        2. 1.2.3.2

          Today, everything is supervised play.

          I’m sure it seems that way from the confines of your gated community.

          1. 1.2.3.2.1

            Are you saying that it should be illegal for communities to determine whether or not they want to be gated?

            Mind you, I do not have a view one way or another on any such legal issue, and merely want to make sure that I am understanding the source of your derision here.

            1. 1.2.3.2.1.1

              Are you saying that it should be illegal for communities to determine whether or not they want to be gated?

              No, I’m saying that even for a mentally handicapped person you’re excessively idi 0tic.

              1. 1.2.3.2.1.1.1

                Your reply is non-responsive and nothing more than your typical mindless and meaningless ad hominem.

                Does that question put to you unnerve you that much?

                Is your every answer to an invitation to actually address some merit aspect the same juvenile C R P ?

                (yes, we BOTH know thee answer, but one can always hope that you tire of the blight that you have been spooning out for this past nearly TWELVE years)

        3. 1.2.3.3

          It is indeed Ned. But there is quite a bit of explicit pushback occurring now on those social forces you mentioned.

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