Tuesday, March 17, 2015

MobileMedia v. Apple: conclusory expert

The outcome of MobileMedia v. Apple

As to Apple’s appeal, we
(i) affirm the district court’s judgment
that claim 73 of the ’078 patent is not invalid,
(ii) reverse the district court’s judgment that
claim 73 of the ’078 patent
is infringed, and
(iii) reverse the district
court’s judgment that
claim 23 of the ’068 patent
is not invalid.

As to MobileMedia’s cross-appeal, we
(i) affirm the district court’s judgment
that claims 5, 6, and 10 of
the ’075 patent are invalid,
(ii) vacate the district court’s
judgment that claims 2 – 4 and 12 of the ’231 patent
are not infringed because
the judgment is based on an errone-
ous claim construction, and
(iii) remand to the district
court for further proceedings.

KSR is mentioned:

As the Supreme Court noted in KSR, even when a
technique has been used to improve a device, and a skilled
artisan would recognize that it could improve other
devices in the same way, using that technique may not be
obvious if its actual application is beyond his or her
level of skill. 550 U.S. at 417.

As to "substantial evidence," the CAFC noted it is
not the CAFC's function to second
guess or reevaluate the weight given to that evi-
dence. See, e.g.,
Comark Commc’ns, Inc. v. Harris Corp.,
156 F.3d 1182, 1192 (Fed. Cir. 1998).

Teva v. Sandoz is cited, but this case is "business as usual."
We review the district court’s claim construction here
de novo because it relied
only on evidence intrinsic to the
’078 patent. See Teva Pharm. USA, Inc. v. Sandoz, Inc.,
135 S. Ct. 831, 841 (2015).

As to experts:

Conclusory statements by an expert, however, are
insufficient to sustain a jury’s ver-
dict. See Krippelz v. Ford Motor Co., 667 F.3d 1261, 1268–69 (Fed. Cir. 2012)


While we agree with Apple that “[t]he dependent claim tail cannot
wag the independent claim dog,” N. Am. Vaccine, Inc. v.
Am. Cyanamid Co., 7 F.3d 1571, 1577 (Fed. Cir. 1993), no
such concern is present here.
Rather, it is Apple that
urges us to affirm a claim construction that would
exclude a preferred embodiment of the invention
disclosed in the specification.
Such a construction is rarely correct
without any persuasive evidentiary support.
Adams Respira-
tory Therapeutics, Inc. v. Perrigo
Co., 616 F.3d 1283, 1290
(Fed. Cir. 2010) (citing
Vitronics Corp. v. Conceptronic,
Inc., 90 F.3d 1576, 1583–84 (Fed. Cir. 1996))


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