Tag Archives: Amicus Briefs

Apple v. Vidal: APA Compliance in IPR Discretionary Denial Rules

August 20, 2024PatentAdministrative Law, AIA Trials, Amicus Briefs, APA, discretionary denial, Federal Circuit, IPR, judicial review, NHK-Fintiv Rule, Notice-and-Comment Rulemaking, paid, patent litigation, USPTODennis Crouch

by Dennis Crouch

I have written several times about the Chestek case regarding notice-and-comment requirements under the APA. A second notice-and-comment case is also pending before the Federal Circuit, potentially having a much greater impact on patent practice. The case, Apple v. Vidal, focuses on IPR discretionary denials, which the USPTO implemented as policy without any formal rulemaking notice-and-comment.

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EcoFactor Responds: Defending the Federal Circuit’s Damages Ruling Allowing Qualitative Apportionment

August 19, 2024PatentAmicus Briefs, apportionment, comparable licenses, Damages, Daubert, en banc, Expert Testimony, Federal Circuit, judicial review, paid, patent litigation, Patent Valuation, Reasonable RoyaltyDennis Crouch

by Dennis Crouch

This is my third post focusing on Google's en banc challenge to 'loose' damages testimony. The patentee, EcoFactor, has now filed a responsive brief in the ongoing smart thermostat patent dispute which resulted in a $20 million jury verdict against Google. A 2-1 Federal Circuit panel affirmed the verdict and, as you might expect, EcoFactor's en banc response defends the decision, arguing that the case presents a straightforward application of established precedent. At core, EcoFactor argues that Google and amici are seeking to impose new, rigid rules that go beyond existing Federal Circuit precedent. Although some say that hindsight is 20/20, anyone who has undergone a hypothetical damages analysis will understand that the process always involves some degree of guestimation and uncertainty -- adding additional precision and calculation is unlikely to provide any true certainty or predictability.

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Defense Side Amici Support for Tighter Reins on Damages Expert Testimony

August 16, 2024PatentAmicus Briefs, apportionment, comparable licenses, Damages, Daubert, en banc, Expert Testimony, Federal Circuit, paid, patent litigation, Patent Valuation, Reasonable Royalty, Rule 702Dennis Crouch

by Dennis Crouch

Google's pending en banc petition in EcoFactor v. Google has drawn significant support from some tech giants, focusing on the application of Daubert standards to patent damages expert testimony. Five amicus briefs supporting Google's position have been filed with the Federal Circuit, each arguing for stricter scrutiny of damages calculations and expert reliability in patent cases. This post discusses the case and the issues presented by the amici army.

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