Tuesday, December 01, 2020

Cisco loses at CAFC

The outcome: Cisco Systems, Inc. appeals the Patent Trial and Appeal Board’s final written decision holding Cisco had not proven that claims 1–9 and 12 of U.S. Patent No. 6,611,231 would have been obvious. For the reasons discussed below, we affirm. Background Cisco challenges the Board’s construction of “cross-correlated signal information that is received by” the claimed adaptive antenna. We review the Board’s ultimate claim construction de novo and any underlying factual determinations involving extrinsic evidence for substantial evidence. Paice LLC v. Ford Motor Co., 881 F.3d 894, 902 (Fed. Cir. 2018). Because Cisco’s petition was filed before November 13, 2018, we give claims in the unexpired ’231 patent their “broadest reasonable interpretation” consistent with the specification. See Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142 (2016). Cisco contends the Board erred in construing the phrase “cross-correlated signal information that is received by said receiver using said adaptive antenna” as requiring that the signal information be cross-correlated before the signal information is received. It argues the claim language is ambiguous and, as properly interpreted, includes signal information that is cross-correlated after it is received. We do not agree Boilerplate language of non-limitation can be harmful: There is no requirement that “each and every claim ought to be interpreted to cover each and every embodiment.” PPC Broadband, Inc. v. Corning Optical Commc’ns RF, LLC, 815 F.3d 747, 755 (Fed. Cir. 2016). Regardless, nothing in the written description shows the patentee intended to deviate from the plain meaning of claim 1; there is no language in the written description suggesting that cross-correlating the signal information after it is received is important, essential, or necessary to the claimed invention. See Hill-Rom Servs., Inc. v. Stryker Corp., 755 F.3d 1367, 1373 (Fed. Cir. 2014) (“[T]o deviate from the plain and ordinary meaning of a claim term . . . the patentee must, with some language, indicate a clear intent to do so in the patent.”). In fact, the written description expressly states that “the invention defined in the [] claims is not necessarily limited to the specific features or steps described.” ’231 patent at 28:66–29:2. The issue of waiver appears: Cisco further contends dependent claim 2 makes clear that claim 1 must encompass “cross-correlated signal information” that is cross-correlated after it is received. We will not reach the merits of this argument, that claim 2 causes us to deviate from the plain meaning of claim 1, because Cisco never raised this argument with the Board. Accordingly, we decline to consider Cisco’s argument made in the first instance on appeal. MCM Portfolio LLC v. Hewlett-Packard Co., 812 F.3d 1284, 1294 n.3 (Fed. Cir. 2015).

Tsai's bicycle rack unhitched by CAFC

The case is about a re-examination of claims of U.S. Patent No. 7,240,816 related to a bike rack: The ’816 patent is directed to a bicycle rack for a vehicle. ’816 patent col. 1 ll. 5–6. The bicycle rack comprises a base, two beams pivotally connected with the base, at least one supporting device attached to each of the beams in order to support one wheel of the bicycle, a post pivotally connected with the base, and a hooking device attached to the post in order to hook a portion of the bicycle. The background law: We review the Board’s legal determinations de novo, In re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), but we review the Board’s factual findings underlying those determinations for substantial evidence, In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding is supported by substantial evidence if a reasonable mind might accept the evidence as adequate to support the finding. Consol. Edison Vo. v. NLRB, 305 U.S. 197, 229 (1938). The scope and content of the prior art is a question of fact. See In re Mouttet, 686 F.3d 1322, 1330 (Fed. Cir. 2012). The presence or absence of a motivation to combine references is also a question of fact. See Novartis Pharms. Corp. v. West-Ward Pharms. Int’l Ltd., 923 F.3d 1051, 1059 (Fed. Cir. 2019). Of a filed declaration: Tsai also contends that the Board improperly ignored the declaration of Kevin Wren (Wren Declaration). Appellant’s Br. at 19. The Board, however, correctly determined that the declaration’s arguments were non-responsive to the examiner’s rejection of the claims. J.A. 20. The Wren Declaration incorrectly stated that the “claims assert a clean and unimpeded access to the vehicle,” and also stated that a skilled artisan would want a bicycle rack post that leaned away from the vehicle to permit access to the back of the vehicle. J.A. 211–12. But as the Board found, the claims do not require such an “access” feature, nor does this contention defeat the examiner’s reasons for combining the cited references. J.A. 20. The concept of "design choice" appears: Without evidence to the contrary, the examiner reasonably found that it would have been a “mere matter of engineering design choice” for a skilled artisan to mount the rotating beams higher in the base’s walls so that the bottom does not interfere with the rotation. J.A. 482. The Board agreed with the examiner’s findings regarding SportRack, James, and Pedrini ’163. J.A. 21. Thus, substantial evidence supports the Board’s determination that the combination of SportRack, James, and Pedrini ’163 would still allow the beams of the resulting combination to rotate without interference. Is "simple physics" a variant of "common sense"? Further, “[s]imple physics would have led those in the art to the location of the likely dynamic stress points relative to the hitch mount in such a system, and routine design modifications without undue experimentation would have led to the resultant location of such wing reinforcements.” The conclusion includes some harsh language: We have considered Tsai’s remaining arguments and find them either forfeited, too skeletal and underdeveloped and/or unpersuasive. link: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-1347.OPINION.11-30-2020_1692523.pdf

Saturday, November 28, 2020

VidStream loses at CAFC: matters of "what is" prior art. In re Hall revisited.

The outcome On two inter partes review (“IPR”) petitions filed by Twitter, Inc., the Patent Trial and Appeal Board (“PTAB” or “Board”) held that claims 1–35 of U.S. Patent No. 9,083,997 (“the ’997 patent”), assigned to VidStream LLC, are unpatentable on the ground of obviousness.1 VidStream appeals, arguing that the Board erred in finding that a book authored by Anselm Bradford and Paul Haine2 (“Bradford”) is prior art against the ’997 patent. We affirm the Board’s holding that Bradford is prior art. With Bradford as the primary reference, VidStream does not appeal the Board’s decision of unpatentability of claims 1–35. That decision is affirmed. Of standards for evaluating prior art: Whether a document is prior art under 35 U.S.C. § 102(a) is a legal determination, based on the specific facts. Medtronic, Inc. v. Barry, 891 F.3d 1368, 1380 (Fed. Cir. 2018). We review the Board’s legal determinations de novo, and its factual findings for support by substantial evidence. In re Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1280 (Fed. Cir. 2015). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v. Nat’l Labor Relations Bd., 305 U.S. 197, 229 (1938). Substantial evidence may be “something less than the weight of the evidence but more than a mere scintilla of evidence.” In re Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012). The PTAB’s evidentiary rulings are reviewed on the standard of abuse of discretion. Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1078 (Fed. Cir. 2015). Abuse of discretion arises if the ruling: “(1) is clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on which the Board could rationally base its decision.” Shu-Hui Chen v. Bouchard, 347 F.3d 1299, 1307 (Fed. Cir. 2003). (...) “‘[P]ublic accessibility’ has been called the touchstone in determining whether a reference constitutes a ‘printed publication . . . .’” In re Hall, 781 F.2d 897, 899 (Fed. Cir. 1986). “A reference will be considered publicly accessible if it was disseminated or otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art exercising reasonable diligence[] can locate it.” Medtronic, 891 F.3d at 1380 (alteration in original) (internal quotation marks omitted). “Whether a reference is publicly accessible is determined on a case-by-case basis based on the ‘facts and circumstances surrounding the reference’s disclosure to members of the public.’” In re Lister, 583 F.3d 1307, 1311 (Fed. Cir. 2009) (quoting In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir. 2004). (...) When the status of a reference is reasonably challenged, the provider of the reference has the burden of establishing that the requirements of “printed publication” are met. See Jazz Pharm., Inc. v. Amneal Pharm., LLC, 895 F.3d 1347, 1356 (Fed. Cir. 2018) (“[W]hether a reference is a ‘printed publication’ is a ‘case-by-case inquiry into the facts and circumstances surrounding the reference’s disclosure to members of the public.’” (quoting Klopfenstein, 380 F.3d at 1350)). The Board found that the November 8, 2011 date of first publication, stated in the Copyright Office’s Registration Certificate, supports the 2011 copyright date of the copy of Bradford obtained from the Library of Congress and “is consistent with Bradford being for sale on Amazon in December 2011,” and “indicates it was published by an established publisher.” Board Op. at *5. See Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1351 (Fed. Cir. 2008) (finding public accessibility when the reference was contained in a book sold to the public). When there is an established publisher there is a presumption of public accessibility as of the publication date. See Giora George Angres, Ltd. v. Tinny Beauty & Figure, Inc., 116 F.3d 1497, No. 96-1507, 1997 WL 355479 at *7 (Fed. Cir. 1997) (“[A]s Memoirs was published (in England) by an established publisher, there is no reason to suspect that it was not publicly available, including to one skilled in the art, and no evidence was presented that it was not.” (citing Hall, 781 F.2d at 899)). The Board found that the Amazon webpage from the Internet Archive, www.amazon.com/HTML5-MasterySemantics-Standards-Styling/dp/1430238615, “supports that Bradford was publicly accessible in 2011, and, in particular, that interested persons could order the book from Amazon either in hard copy or electronically.” Board Op. at *6. The Board discussed all the materials that were submitted, and found: Although no one piece of evidence definitively establishes Bradford’s public accessibility prior to May 9, 2012, we find that the evidence, viewed as a whole, sufficiently does so. In particular, we find the following evidence supports this finding: (1) Bradford’s front matter, including its copyright date and indicia that it was published by an established publisher (Exs. 1010, 1042, 2004); (2) the copyright registration for Bradford (Exs. 1015, 1041); (3) the archived Amazon webpage showing Bradford could be purchased on that website in December 2011 (Ex. 1016); and (4) Dr. Hsieh-Yee’s testimony showing creation and modification of MARC records for Bradford in 2011. Id. at *9. VidStream argues that the Board erred, and that even if Twitter’s evidence submitted in reply were considered, Twitter did not establish that the pages of Bradford that were provided with the petitions were published before VidStream’s May 9, 2012 priority date. VidStream states that “the Board not only considered, but indeed based its public accessibility findings on evidence relating to a version (or versions) of Bradford other than the version . . . in Twitter’s IPR petition,” VidStream Br. 9 (emphasis removed). VidStream states that the Board “departed from the specific grounds of unpatentability set forth in the petitions and thus exceeded its statutory authority.” Id. The CAFC noted of the exclusion issue: The Board denied VidStream’s Motion to Exclude, holding that it was appropriate to permit Twitter to respond to VidStream’s challenge by providing additional evidence to establish the Bradford publication date. We conclude that the Board acted appropriately, for the Board permitted both sides to provide evidence concerning the reference date of the Bradford book, in pursuit of the correct answer.

Thursday, November 19, 2020

GSK loses appeal in VECTURA LIMITED v. GLAXOSMITHKLINE LLC

GSK lost its appeal at the CAFC: Following trial, a jury in the United States District Court for the District of Delaware found that defendants GlaxoSmithKline LLC and Glaxo Group Limited (collectively, “GSK”) infringed U.S. Patent No. 8,303,991 (“the ’991 patent”), owned by plaintiff Vectura Limited, and that the patent was not invalid. The district court denied GSK’s post-trial motions for judgment as a matter of law and a new trial. GSK now appeals from the judgment against it. We affirm. The need to object: The district court noted that GSK had not filed a pretrial Daubert motion. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). For that reason, the court determined that GSK had waived its general objections to Ms. Schenk’s built-in apportionment testimony and would be required to object to any particular question asked of her. However, the court made clear that it did not regard GSK as having waived its objection to the argument that “it’s just pennies on the dollar, so what’s the big deal?” The court added, “I don’t think the sales should be in any way emphasized beyond what is strictly required by the law. So if I hear that happening, I will make my own objection and I will sustain it because that should not be an argument.” J.A. 1437–40. Subsequently, Ms. Schenk provided testimony on damages, in which she referred several times to GSK’s U.S. sales. GSK did not object to those references or to the demonstrative exhibits that included the dollar amount of those sales. During GSK’s case, its damages expert, Dr. Kerr, testified that he thought Vectura’s three percent royalty rate was “holding GSK over a barrel.” J.A. 1886. On cross-examination, Vectura’s counsel challenged that statement, saying, “so it’s your testimony that a three-percent royalty would be putting GSK over a barrel when they had $3 billion worth of infringing product at stake?” J.A. 1887. At that point, the trial judge interceded, noting that he had said that he would police excessive references to the sales amounts. He added: “Let’s not talk any more about [the] 3 billion figure.” J.A. 1888. There was no further reference at trial to the amount of GSK’s sales. Following the close of the evidence, the court instructed the parties not to refer to the overall sales figure during closing arguments. In his closing argument, Vectura’s counsel referred to GSK’s profits, but not the amount of its sales. GSK did not object to counsel’s closing argument. In its opinion on the motion for judgment as a matter of law and for a new trial, the district court found that Vectura had “repeatedly emphasized the amount of revenues made by Defendants and the relative smallness of the damages award they were requesting,” and that its conduct in that regard was improper. Vectura, 397 F. Supp. 3d at 594. However, the court agreed with Vectura that, unlike in most cases in which there was no legitimate reason for the jury to hear large total revenue figures, in this case “there was no smallest salable patent-practicing unit, and the total revenue was an appropriate base that the jury needed to hear to understand Plaintiff’s damages expert’s analysis.” Id. at 596. For that reason, the court concluded, “I do not find the introduction of the total revenue figure to be so prejudicial that the damages verdict ‘cries out to be overturned.’” Id.

Friday, October 30, 2020

ED Va reversed on evidentiary issues in Tecsec case

TecSec appeals. It challenges the district court’s motion-in-limine ruling, as well as certain jury instructions and the post-trial damages reduction. Adobe cross-appeals, challenging the district court’s ruling on eligibility. We reverse the evidentiary ruling that eliminated TecSec’s inducement case for a substantial period, and we reject Adobe’s challenge to the district court’s eligibility ruling. For those reasons, and others stated in this opinion, we reverse the judgment in part and remand for further proceedings on TecSec’s claim of induced infringement. Of details A defendant is liable for “induced infringement under § 271(b)” if the defendant took certain affirmative acts to bring about the commission by others of acts of infringement and had “knowledge that the induced acts constitute patent infringement.” Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 765–66 (2011); see Commil USA, LLC v. Cisco Systems, Inc., 135 S. Ct. 1920, 1928 (2015); Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 843 F.3d 1315, 1331 (Fed. Cir. 2016). The intent element requires “knowledge that the induced acts constitute patent infringement,” which can be established by a proper finding of “willful blindness.” Global-Tech, 563 U.S. at 766–71; see Commil, 135 S. Ct. at 1926–28 (reiterating requirement of knowledge of infringing character of induced conduct, not just knowledge of patent). This intent element was the basis for the district court’s primary rationale for its motion-in-limine ruling, a ruling that assumed that the induced conduct was in fact infringing. (...) The district court in this case erred when it concluded as a matter of law that, after the district court’s (later reversed) claim construction on March 3, 2011, Adobe “lacked the requisite intent to induce infringement.” J.A. 27. The court explained that it had “reasonably, though erroneously, ruled in Adobe’s favor on infringement,” and, accordingly, Adobe was entitled to rely on that ruling as proof that the relevant induced acts were non-infringing. Id. That reasoning makes dispositive what Adobe, with objective reasonableness, could have believed. The Global-Tech inducement standard, however, can be met by proof of what Adobe in fact subjectively believed. For example, Adobe might have believed that the March 2011 claim-construction ruling was erroneous (though reasonable) and would likely be reversed (as it was in 2013). Thus, the district court’s March 2011 ruling “could, at most, create a factual question, not an entitlement to a no-knowledge finding as a matter of law.” Smith & Nephew, 603 F. App’x at 989– 90. For those reasons, we conclude that the district court legally erred in its primary rationale for ruling out inducement after March 3, 2011, namely, that the claim-construction ruling of that date furnished an objectively reasonable basis for a belief that use of the accused products did not infringe, even if Adobe did not have such a belief. Also The district court’s second ground for its motion-inlimine ruling was that “allowing TecSec to argue [postMarch 3, 2011] induced or willful infringement . . . would taint the trial and any verdict with undue prejudice and juror confusion.” J.A. 28. Whether we review that ruling de novo or for an abuse of discretion, we conclude that the district court erred in relying on this rationale to preclude TecSec from proving inducement after March 3, 2011. In defending the district court’s rationale, Adobe invokes Rule 403 of the Federal Rules of Evidence, which provides that a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of,” among other factors, “unfair prejudice” or “confusing the issues.” But the district court in this case went beyond excluding a single piece, or even a fixed set, of evidence and leaving TecSec to present such other relevant, admissible evidence as it may have on inducement in the period at issue. Instead, the court foreclosed the introduction of any evidence on the issue of post-March 3, 2011 inducement of infringement. This is materially different from any application of Rule 403 Adobe has identified. Cf. General Dynamics Corp. v. United States, 563 U.S. 478, 484–85 (2011) (distinguishing case involving “purely evidentiary dispute” over state-secret privilege, where “the privileged information is excluded and the trial goes on without it,” from case involving foreclosure of a claim). The district court reasoned that if TecSec was allowed to argue inducement of infringement after that date, Adobe would be prejudiced were it not allowed to introduce the March 3, 2011 claim construction and the stipulation by TecSec that, under that construction, Adobe’s customers did not directly infringe. J.A. 28. The court then concluded that “it would also be substantially and unduly prejudicial and confusing for the jury to see a prior ruling in this case and TecSec’s stipulation that Adobe’s products did not infringe.” J.A. 28–29. On that basis, the district court precluded TecSec from offering any proof of post-March 3, 2011 inducement. Adobe has not cited any authority that supports such foreclosure of liability for a given period in the circumstances present here. Any conclusion that post-March 3, 2011 inducement could not be fairly tried would have required consideration of what other admissible evidence TecSec had that was relevant to the intent element of inducement, as well as of the possible measures for effectively but fairly reducing jury confusion. But the district court did not undertake, and because of the limited scope of Adobe’s motion in limine was in no position to undertake, that required consideration. Adobe’s motion, besides what it suggested on the legalimpossibility point, was limited to arguing for Adobe’s ability to introduce the claim-construction ruling and TecSec’s stipulation. It did not call for TecSec to identify all evidence of intent—as a motion for summary judgment would have done—so that the district court could determine if there was a triable issue of post-March 3, 2011 inducement of infringement. See J.A. 10429. TecSec therefore properly limited its response to arguing against the admission of the construction and stipulation. See J.A. 10849. On the motion as framed, the district court lacked the basis to consider the totality of TecSec’s post-March 3, 2011 inducement evidence to determine whether that issue could fairly be tried. And the court did not consider the totality of such evidence. Nor, in taking the extraordinary action of foreclosing liability for a substantial period, did the district court set forth an analysis of potential means, such as cautionary jury instructions, that could reduce jury confusion and allow a fair trial considering the totality of relevant evidence. Adobe cites several cases to support the proposition that “there are circumstances where, for willfulness or inequitable conduct, there can be no intent as a matter of law.” Appellant’s Br. at 28. None of those cases support the ruling in this case. The cited cases all involved ordinary motions for summary judgment that, with proper procedural protections, duly enabled the court to consider all evidence relevant to the particular liability issue. See Ferring B.V. v. Barr Labs., Inc., 437 F.3d 1181, 1190–94 (Fed. Cir. 2006) (finding lack of intent for inequitable conduct after consideration of evidence on summary judgment); Intercontinental Great Brands LLC v. Kellogg N. America Co., 869 F.3d 1336, 1352 (Fed. Cir. 2017) (same). By contrast, Adobe’s motion in limine did not call for, or provide a basis for, consideration of all relevant material evidence. Without such consideration, the district court could not properly resolve the issue as a matter of law.2 As Adobe acknowledges in this court, see Cross-Appellant’s Principal and Response Br. at 15, 20, when the district court stated that it would be “substantially and unduly prejudicial and confusing for the jury to see” the claim-construction ruling and TecSec’s stipulation, J.A. 28–29, the court was determining that the evidence Adobe was entitled to introduce would be “unduly prejudicial” to TecSec. But TecSec never stated that, if that evidence had to be admitted at Adobe’s behest, TecSec would drop its inducement claim for the post-March 3, 2011 period. To the v

CORCAMORE loses at CAFC on "statutory cause of action" issue

The outcome Corcamore LLC appeals an order of the United States Patent and Trademark Office, Trademark Trial and Appeal Board. The Board entered default judgment as a sanction against Corcamore, which resulted in the cancellation of Corcamore’s trademark registration for SPROUT. On appeal, Corcamore contends that the Board erred in granting default judgment, in particular because SFM LLC lacked standing to petition for cancellation of the trademark registration. We conclude that appellee SFM was entitled to bring and maintain a petition under 15 U.S.C. § 1064, the statutory cause of action for cancellation of trademark registrations, and that the Board did not otherwise abuse its discretion in imposing default judgment as a sanction. We affirm. The CAFC noted: Whether a party is entitled to bring or maintain a statutory cause of action is a legal question that we review de novo. Empresa Cubana, 753 F.3d at 1274 (citing Lexmark, 572 U.S. at 129). In this appeal, we review de novo whether SFM pleaded sufficient facts to establish entitlement to challenge Corcamore’s registered trademark under § 1064. We first observe that there exists confusion in the law stirred by the inconsistent use of the term “standing.” As Justice Scalia observed, certain issues often discussed in terms of “standing” are more appropriately viewed as requirements for establishing a statutory cause of action. Lexmark, 572 U.S. at 128 n.4. That is the case here. To be clear, this appeal does not involve the traditional legal notions of Article III standing. This appeal focuses instead on the requirements that a party must satisfy to bring or maintain a statutory cause of action, such as a petition to cancel a registered trademark under 15 U.S.C. § 1064. (...) In Lexmark, the Supreme Court established two requirements for determining whether a party is entitled to bring or maintain a statutory cause of action: a party must demonstrate (i) an interest falling within the zone of interests protected by the statute and (ii) proximate causation. 572 U.S. at 129–34. The Court explained that those two requirements “suppl[y] the relevant limits on who may sue” under a statutory cause of action. Id. at 134. The Court made clear that the zone-of-interests requirement applies to all statutory causes of action, and that proximate causation generally applies to all statutory causes of action. Id. at 129, 133. (...) To be clear, § 1064, like § 1125(a), is a statutory cause of action provided in the Lanham Act. See Empresa Cubana, 753 F.3d at 1275–76 (holding that appellant demonstrated entitlement to a “statutory cause of action” under the Lanham Act). A “cause of action” consists of two elements: operative facts and the right or power to seek and obtain redress for infringement of a legal right which those facts show. See 1A C.J.S. Actions § 53; see also Cause of Action, Black’s Law Dictionary (11th ed. 2019) (“A group of operative facts giving rise to one or more bases for suing.”).

Thursday, October 22, 2020

CAFC vacates ND Cal order: The district court did not perform the required analysis

From the decision in FINJAN, INC. v. JUNIPER NETWORKS, INC: Courts in the Ninth Circuit “must conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret.” Id. at 1221 (citing Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006)). In Uniloc, for example, we vacated and remanded a portion of an order that “failed to make findings sufficient to allow us to adequately assess whether [the district court] properly balanced the public’s right of access against the interests of the third parties in shielding their financial and licensing information from public view.” 964 F.3d at 1364. We do the same here. The district court did not perform the required analysis. That analysis is not for us to undertake in the first instance. Therefore, we vacate the Unsealing Order and remand for the district court to “make particularized determinations as to whether and, if so, to what extent” the third-party licensing information raised by Finjan should be made public.1 Id.

Monday, October 19, 2020

CAFC parses the term "antibodies" in Immunex case

First, the relevant science. Antibodies are proteins. Like all proteins, they are composed of numerous individual amino acids chained together in a particular sequence. Antibodies are roughly Y-shaped, made of four chains—two “heavy” and two “light.” Each chain can be further divided into a “variable region” and a “constant region.” And each variable region contains three relatively small “complementarity-determining regions” (CDRs) situated at the tips of the Y. The remainder of the variable regions are the “framework regions.” Particular antibody regions have particular biological implications. For instance, it is primarily the CDRs that give an antibody its ability to bind selectively to specific targets (i.e., antigens), despite making up just a sliver of its structure. See J.A. 1501, 7042–43. To that end, an antibody’s exact amino acid sequence determines what the antibody binds to, which affects the antibody’s therapeutic usefulness. The amino acid sequence of an antibody also determines whether the human immune system recognizes and rejects it as “non-human.” Amino acid sequences that are human in origin—that is, sequences “consistent with the amino acid sequences of antibodies produced naturally by the human immune system,” see Appellant’s Br. 4—can avoid triggering immune responses. Early efforts at therapeutic antibody development started with mice. For example, researchers could inject a mouse with an antigen, the mouse would generate antibodies to the antigen, and those antibodies would be harvested. In that case, the entire amino acid sequence was murine (i.e., from mice). These antibodies, disappointingly, tended to plague patients with “undesirable and harmful immune reactions.” See Appellant’s Br. 7–8. Too much of each antibody was “mouse” in origin, to the consternation of the human immune system. Through various techniques, the proportion of an antibody that is recognized as “mouse” can be decreased. In “chimeric” antibodies, for instance, the constant regions tend to be human in origin, and the variable regions, including the CDRs, tend to be nonhuman—making the antibodies’ amino acid sequences mostly human in origin. Appellant’s Br. 8–9. In “humanized” antibodies, only the CDRs are nonhuman—the antibodies’ amino acid sequences, including the portions responsible for immune reaction, are almost entirely human in origin.1 Further, fully human antibodies can be made in which even the CDRs are human in origin.

CAFC upholds federal district court abstention as to declaratory judgment in a mixed contract/patent case

Judge Newman wrote: This appeal is from the decision of the United States District Court for the Northern District of Indiana,1 dismissing a declaratory judgment complaint filed by Warsaw Orthopedic, Inc.; Medtronic, Inc.; and Medtronic Sofamor Danek, Inc. (collectively, “Medtronic”) against Dr. Rick Sasso, a surgeon and inventor. The district court dismissed the complaint without prejudice, applying the doctrine of federal court “abstention” in view of the concurrent action in Indiana state court between the same parties concerning the same dispute; that decision is on appeal to the Indiana Court of Appeals.2 The state court action is described by Dr. Sasso as a contract case for payment for patent rights, and the federal action is described by Medtronic as a patent case in which payment requires valid patents. Medtronic argues that the district court’s “abstention” was an abuse of discretion, because the federal courts have exclusive jurisdiction over patent cases, and patent validity is fundamental to resolution of this dispute. Thus, Medtronic argues that abstention was inappropriate because the federal court had the obligation to receive and resolve this dispute. We conclude that the district court acted within its discretion, abstaining without prejudice, on the facts hereof, for the question of contract interpretation is on appeal in the Indiana state court, and federal action based on the federal issues is not precluded. AND of the declaratory judgment part: The Declaratory Judgment Act states that courts may grant declaratory relief, 28 U.S.C. § 2201(a), and the Supreme Court has explained that the Act confers “unique and substantial discretion in deciding whether to declare the rights of litigants,” Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995). Also, the Court had stated in Brillhart v. Excess Insurance Co. of America, 316 U.S. 491 (1942), that federal courts may and reasonably should abstain from exercising declaratory jurisdiction when the issues “can better be settled in [a] proceeding pending in . . . state court.” Id. at 495. As summarized in Envision Healthcare, Inc. v. PreferredOne Insurance Co., 604 F.3d 983 (7th Cir. 2010): “Under what is known as the Wilton/Brillhart abstention doctrine, district courts possess significant discretion to dismiss or stay claims seeking declaratory relief, even though they have subject matter jurisdiction over such claims.” Id. at 986. The propriety of a district court’s Wilton/Brillhart abstention is reviewed on the standard of abuse of discretion, that is, whether the action “is based on clearly erroneous findings of fact, is based on erroneous interpretations of the law, or is clearly unreasonable, arbitrary or fanciful.” iLOR, LLC v. Google, Inc., 631 F.3d 1372, 1376 (Fed. Cir. 2011).

St. Jude does not fare well at the CAFC in SNYDERS HEART VALVE case

The outcome: St. Jude appeals on a subset of the challenges it presented to the Board. For IPR-105, it argues that the Board erroneously rejected the contention that Leonhardt anticipated claims 1, 2, 4–8, and 28, the alleged error being the Board’s application of the construction of the claim term “band.” For IPR-106, St. Jude argues that the Board erroneously rejected the contention that Bessler anticipated claim 28, the alleged error being the Board’s finding a failure of proof that Bessler meets claim 28’s “manipulator” limitation. St. Jude also argues, for IPR-106, that the Board erred in rejecting St. Jude’s challenge to most of the claims at issue (all but claims 17, 27, and 30) for obviousness over Bessler plus Johnson and Imachi. Snyders crossappeals in IPR-106, arguing that the Board committed several errors in finding claims 1, 2, 6, and 8 anticipated by Bessler. We affirm the Board’s decision in IPR-105. We reverse the Board’s finding in IPR-106 that Bessler anticipated claims 1, 2, 6, and 8. We need not reach St. Jude’s anticipation argument as to claim 28, and we affirm the Board’s obviousness rejection in IPR-106. Of the issue in 106: Both parties challenge aspects of the Board’s decision in IPR-106. We begin by addressing the challenge presented by Snyders, in its cross-appeal, to the Board’s finding that Bessler anticipated claims 1, 2, 6, and 8. We then address St. Jude’s argument that the Board erred in not finding claim 28 anticipated. Lastly, we address St. Jude’s obviousness challenge. (...) The claim’s reference to “repairing a damaged heart valve,” without any reference to removal, suggests that the native valve remains. So too does the claim’s reference to the damaged heart valve “having a plurality of cusps,” which appears superfluous if claim 1 is interpreted to include embodiments where the damaged valve and its cusps are removed. See Wasica Fin. GmbH v. Cont’l Auto. Sys., Inc., 853 F.3d 1272, 1288 n.10 (Fed. Cir. 2017) (“It is highly disfavored to construe terms in a way that renders them void, meaningless, or superfluous.”); Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) (“[C]laims are interpreted with an eye toward giving effect to all terms in the claim.”). We turn to the ’782 patent’s specification, which we conclude resolves the interpretive question in this case under the standard requiring the “broadest reasonable interpretation in light of the specification.” 37 C.F.R. § 42.100(b) (2016); see also Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc) (explaining that the specification “is the single best guide to the meaning of a disputed term”). The specification states that “the frame is sized and shaped for insertion between the plurality of cusps C of the damaged heart valve in a position between an upstream region and a downstream region.” ’782 patent, col. 5, lines 48–51 (emphasis added). That language indicates that “sized and shaped” is not meant to refer only to placement in a position between the upstream and downstream regions, but also to fitting between the cusps of the intact native valve.

Sunday, October 18, 2020

David Pogue strikes out as a "science guy" on CBS Sunday Morning on October 18, 2020

Giving the lead story "For Many, Climate Change Finally Hits Home," David Pogue talked about "the dog in the car in summer effect," in the following exchange: "It's funny that we call it the 'greenhouse effect,'" said [Ayana Elizabeth ] Johnson, "'cause most people, like, don't spend a lot of time hanging out in greenhouses!" Pogue said, "I think it should be called 'the dog in the car in summer effect,' because isn't it the same thing? The sun goes into the car, it doesn't fully bounce out, so the car gets really hot inside?" "That's a much better analogy," Johnson said. The significant problem is that neither "analogy" is relevant to the issue of infrared-absorbing gases, such as methane, in the atmosphere. The irrelevance of infrared absorbance to hot greenhouses was pointed out as early as 1909, more than a century ago. From the 2008 IPBiz post Hansen on global warming: 'This is the last chance" : IPBiz notes that, while the term "greenhouse gas" is ever-present in the environmental discussion, it is a misnomer. More than thirty years ago, this misnaming was pointed out in the journal Science: From The "Greenhouse Effect", Robert G. Fleagle and Joost A. Businger, 190 Science 1042 (1975): [G]reenhouses are warmer than the surrounding air because the glass pre- vents the warm air inside from rising and removing heat from the greenhouse. Ab- sorption of infrared radiation by the glass contributes only a little to the warming ef- fect. Polyethylene sheets, even though they are largely transparent to infrared radi- ation, are just about as effective as glass in greenhouses The essential facts were es- tablished by a simple experiment carried out by Johns Hopkins University physicist Robert W. Wood in 1909. He found that two model greenhouses, one covered with glass and the other with rock salt (which is transparent to both short- and long-wave radiation) reached very nearly the same high temperatures. Thus the "greenhouse effect" results from suppression of vertical convection by a rigid lid. The earlier paper in question is Robert W. Wood, Philosophical magazine , 1909, vol 17, pp. 319-320. One would hope after one hundred years, scientists would get the "greenhouse" issue right. So, as to Pogue, the "dog in car" is not a better analogy, it is not an analogy at all. Also, of note in the Pogue story Johnson offered a climate-change refresher for correspondent David Pogue: "We burn all these fossil fuels, all these greenhouse gases go up in the air. It's carbon dioxide. It's methane. And they create this layer of gas that is basically like a blanket on top of the planet." That "blanket" traps heat from the sun that would have bounced back out into space. * The moment of nature was an early snow in San Juan National Forest near Durango, Colorado. See also Illegal campfires plague San Juan National Forest