Tag Archives: paid

Livestream of LKQ v. GM

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The Federal Circuit is hearing oral arguments today in the design patent case of  LKQ Corporation v. GM Global Technology Operations LLC 21-2348.  Judge Stoll's opinion in the case sides with the patentee GM on the issue of obviousness -- affirming a PTAB decision in favor of the patentee.  LKQ's appellate team led by Prof. Mark Lemley argues that Federal Circuit's obviousness standard (known here as the Rosen-Durling test) makes it too difficult to actual reject or cancel design patent claims.  Lemley argues for a much more flexible and common sense approach as required by KSR.  The USPTO's amicus agrees Federal Circuit law should be expanded, but not as far as suggested by LKQ.  GM argues for the status quo.

According to the listing, the en banc panel today consist of Chief Judge Moore,  and Circuit Court Judges Lourie, Dyk, Prost, Reyna, Taranto, Chen, Hughes, Stoll, and Stark.  Not listed is Judges Cunningham and Newman.  

Livestream below:

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Two Mandamus Petitions: Transfer Granted, Improper Service Denied

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by Dennis Crouch

A Federal Circuit panel recently released a pair of mandamus orders dealing with important civil procedure issues - one granting a petition to transfer venue under 28 USC 1404(a) , the other denying a petition challenging substitute service of process for a foreign defendant.

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Gogo Continues In-Flight Services as Federal Circuit Rejects SmartSky’s Preliminary Injunction Appeal

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by Dennis Crouch

In SmartSky Networks, LLC v. Gogo Business Aviation, LLC, No. 2023-1058 (Fed. Cir. Jan. 31, 2024), the Federal Circuit has affirmed a lower court denial of a preliminary injunction sought by the patentee SmartSky against Gogo.  SmartSky sued Gogo in 2022 for patent infringement, alleging that Gogo’s 5G wireless network infringed several of SmartSky’s patents related to in-flight internet wireless connectivity.  See U.S. Patent Nos. 9,312,947, 11,223,417, 10,257,717, and 9,730,077.  Along with its complaint, SmartSky moved to preliminarily enjoin Gogo from providing its in-flight network.  SmartSky argued it had shown a likelihood of success on the merits and that it would suffer irreparable harm without an injunction, but the D.Del. district court Judge Gregory Williams disagreed.  A grant or denial of preliminary injunctive relief can be immediately appealed, but the patentee's appeal has also failed.

The preliminary injunction motion was associated with a new 5G network that Gogo had announced in 2019.  That network is, according to Gogo, "still in a pre-launch phase."  Although customers are not yet actively using the service, the network itself is actually complete and the final step is including the chipsets within the planes.  This aspect of the case was the most critical for the Federal Circuit who concluded that the current status of Gogo's operation was not definite enough to create irreparable harm.

 

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Race to the Finish: Timing Battles in Parallel IPR and District Court Litigation

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by Dennis Crouch

The new petition for certiorari filed by Liquidia raises some interesting questions about the ongoing race between inter partes review proceedings and district court litigation.  Liquidia Techs v. United Therapeutics Corp., 23-804 (US), on petition for writ of certiorari from United Therapeutics Corp. v. Liquidia Techs., Inc., 74 F.4th 1360 (Fed. Cir. 2023).

UTC won its infringement suit against Liquidia with a holding that its patent covering treprostinil administration by inhalation were valid and infringed. (US10716793).  While the appeal was pending, the PTAB sided against the patentee and found the claims unpatentable as obvious.  In the appeal, however, the Federal Circuit refused to give credence to the PTAB decision - finding that litigation was still "pending" and "non-final." The claims had not actually been cancelled yet - since the Director only issues the certificate confirming unpatentability after any appeal. Further, the Federal Circuit concluded that IPR decisions do not have issue-preclusive (collateral estoppel) effect until the decision is affirmed on appeal, or the parties waive their right to appeal. Citing XY, LLC v. Trans Ova Genetics, L.C., 890 F.3d 1282, 1294 (Fed. Cir. 2018).

Liquidia's petition argues that the PTAB's final-written decision should be given preclusive effect in parallel litigation even if an appeal is pending, just like would be done for a district court opinion.

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Federal Circuit on TM Law’s Information Matter Doctrine

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by Dennis Crouch

The Federal Circuit has just reissued this important trademark decision as precedential. In re GO & Associates, 22-1961 (Fed. Cir. 2023/2024)

In a non-precedential 2023 decision, the Federal Circuit affirmed a decision by the  Trademark Trial and Appeal Board (TTAB) refusing to register “Everybody vs Racism” as a trademark for apparel, tote bags, and services promoting racial justice advocacy. The court found substantial evidence supported the TTAB's conclusion that the slogan fails to function as a source identifier for the applicant GO & Associates’ goods and services.  Although the outcome here supports the informational matter doctrine barring registration, the court is clear that political slogans and other informational matter can be protected as trademarks so long as the applicant shows that they actually function as a trademark.

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USPTO Granted Remand in Important Antibody Written Description Case

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by Dennis Crouch

The Federal Circuit has remanded the Xencor appeal -- allowing USPTO  leadership an opportunity to re-focus on the written description requirement for both Jepson claims and means-plus-function claims in the antibody art.  I have several prior posts about the case:

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Vanda Seeks Supreme Court Review on Lower Standard for Obviousness

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Vanda Pharmaceuticals recently filed a petition for writ of certiorari, asking the Supreme Court to review a May 2023 decision by the Federal Circuit that invalidated claims from four Vanda patents covering methods of treating Non-24-Hour Sleep-Wake Disorder ("Non-24") using the drug tasimelteon (Hetlioz). Vanda Pharmaceuticals Inc., v. Teva Pharmaceuticals USA, Inc., 23-768 (Supreme Court).  The district court held that all the asserted claims were invalid as obvious, and the Court of Appeals for the Federal Circuit affirmed this decision. Vanda.cert.petition

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En Banc Denied in In re Cellect: Double Patenting and Patent Term Adjustment

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by Dennis Crouch

The Federal Circuit has denied Cellect's en banc petition on the interplay between obviousness-type-double-patenting and patent-term-adjustment.  The situation here is creating some strategic challenges for patentees with large patent families. 

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A present assignment of future continuation applications

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by Dennis Crouch

In Roku, Inc. v. ITC, the Federal Circuit has affirmed determinations by the International Trade Commission (“ITC”) favoring the patent holder Universal Electronics, Inc. (“Universal”). The most interesting part of the case for me is the assignment issue - whether the patents had been properly assigned at the appropriate time. This can become in cases like this because Universal has created a large patent portfolio that all claim back to original priority documents from more than a decade ago. While most of patents are attributable to both joint-inventors, some are only attributable to one or the other.  Here, though the Federal Circuit supported the simple approach of a "hereby assigns" transfer of rights that includes future continuations.  The decision is lacking though because the court does not ground its decision in any particular contract or property tradition.

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Federal Circuit Upholds PTAB’s Obviousness Finding and Joinder Decision in CyWee v. ZTE Smartphone Patent Case

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The Federal Circuit recently affirmed a ruling by the Patent Trial and Appeal Board (PTAB) in an inter partes review (IPR) filed by ZTE and joined by LG, finding claims of CyWee Group’s U.S. Patent No. 8,441,438 unpatentable as obvious. CyWee Group v. ZTE, No. 21-1855 (Fed. Cir. Jan. 18, 2024). The ’438 patent claims 3D motion-tracking technology for handheld devices like smartphones. The appeal included both IPR procedural issues and substantive patent law issues.  In siding with the PTAB, the Federal Circuit rejected CyWee’s argument that the Board should not have allowed LG to oppose CyWee's motion to amend its claims. The court also affirmed the Board’s finding that the proposed amended claims would have been obvious over the prior art.

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Ethical Infantilism in the Age of Technological Advancement

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by Dennis Crouch

Martin Luther King Jr. received the Nobel Peace Prize in 1964, and I re-read his speech today -- especially the portion contrasting development of science and technology against development of the human spirit.  The past 60 years have continued to reveal astonishing discoveries and invention. Yet King’s words and warnings continue to resonate because we have continued to neglect our internal realm.

Every man lives in two realms, the internal and the external. The internal is that realm of spiritual ends expressed in art, literature, morals, and religion. The external is that complex of devices, techniques, mechanisms, and instrumentalities by means of which we live.

King.  In his speech, King did not decry advances in technology, but argued that the level of attention paid to material advances should be matched by attention to moral and spiritual humanism.

Modern man has brought the whole world to an awe-inspiring threshold of the future. He has reached new and astonishing peaks of scientific success. He has produced machines that think, and instruments that peer into the unfathomable ranges of interstellar space. He has built gigantic bridges to span the seas and gargantuan buildings to kiss the skies. His airplanes and spaceships have dwarfed distance, placed time in chains, and carved highways through the stratosphere. This is a dazzling picture of modern man’s scientific and technological progress.

Yet, in spite of these spectacular strides in science and technology, and still unlimited ones to come, something basic is missing. There is a sort of poverty of the spirit which stands in glaring contrast to our scientific and technological abundance. The richer we have become materially, the poorer we have become morally and spiritually. We have learned to fly the air like birds and swim the sea like fish, but we have not learned the simple art of living together as brothers.

Id.

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