Wednesday, April 01, 2015

Delaware jury finds Motorola infringes claims of Intellectual Ventures' US Patent 7,120,462

Motorola suffered a second loss to Intellectual Ventures when a Delaware jury found infringement of claims
of US Patent 7,120,462.

The Register, in covering the verdict, noted:

Intellectual Ventures, which was formed in 2000 by former Microsoft CTO Nathan Myhrvold, is among the top five patent-holding entities in the US, yet it makes nothing and markets no products. Instead, it licenses its myriad patents to other companies – and indeed it argued that many of Motorola's competitors had already licensed the patent at issue in the current lawsuit.

One notes that IV does create a lot of its own patent applications. IPBiz wrote in 2009:

Commenting on the assault on IV by Matt Asay, IAM rolls out non-troll behavior by IV, as highlighted by MIT Tech Rev:

However, it may be an opinion that will be a little more difficult to sustain following a recently published article in the MIT Technology Review. In this, TerraPower - a new type of nuclear reactor which has been developed by IV scientists - was identified as one of the top 10 emerging technologies that could change the world.

In earlier times, the inventive aspects of IV were mentioned first, with the "troll" side a footnote. See for example:

Some of the patent applications in question are US published apps 20080123797 [Automated nuclear power reactor for long-term operation ] and 20080123795 [Controllable long term operation of a nuclear reactor ]. Both Myhrvold (a former Hertz Fellow] and former Hertz Foundation Prez Lowell Wood are listed inventors. [Roderick Hyde is also an inventor; CLARENCE "Casey" T. TEGREENE, the patent attorney).

Link to the article in the Register:

**As a separate matter related to Intellectual Ventures, note that MARK A. LEMLEY, Durie Tangri LLP, San Francisco,
CA, argued for defendants-appellants JP Morgan in the case INTELLECTUAL VENTURES II LLC v. JPMORGAN CHASE & CO.

JP Morgan's appeal was dismissed:

For the foregoing reasons, we do not have jurisdiction
under § 18(b)(2) of the AIA to consider an interlocutory
appeal from a decision on a motion to stay until the PTAB
institutes a CBMR proceeding. We, therefore, dismiss
this appeal for lack of jurisdiction.

Link to the decision:

Link to oral argument:

In dissent, Judge Hughes wrote:

The majority’s purely textual analysis cannot be
squared with the overall legislative purpose of the AIA
and § 18. The meaning of statutory language “may vary
to meet the purposes of the law, to be arrived at by a
consideration of the language in which those purposes are
expressed, and of the circumstances under which the
language was employed.” Yates v. United States, 135 S.
Ct. 1074, 1082 (2015) (quoting Atl. Cleaners & Dyers v.
United States, 286 U.S. 427, 433 (1932)). Congress repeatedly
stated its paramount goal of having § 18 serve as
a cheaper, faster alternative to be used instead of—rather
than in addition to—litigation in district court. If we
decline to review stay decisions before CBM review is
instituted, parties inevitably will be forced to simultaneously
litigate in district court and at the Patent Office.
This is inconsistent with the purpose of § 18. Further, if
the petition is ultimately granted, the expenses incurred
at the district court from the time the petition was filed to
the time a subsequent stay request is granted become the
kind of “unnecessary and counterproductive litigation
costs” Congress sought to avoid. H.R. Rep. No. 112-98, pt.
1, at 40 (2011). Given the clearly expressed purpose of
§ 18 proceedings, Congress could not have intended to
create an exception for interlocutory orders, but then limit
our jurisdiction by way of the majority’s distinction between
instituted proceedings and those where a petition
has been filed.


The result of the majority’s interpretation is a curious
parsing of the statute. It creates a needlessly complicated
regime that divides CBM stay decisions and our review
authority into two categories: § 18(b)(1) stays, which can
only occur after a CBM proceeding has been instituted;
and stays based on the district court’s inherent stay
power for any stay requested between the filing of a
petition for CBM review and the formal institution of a
CBM proceeding. And apparently this is true even if the
district court’s decision is expressly based on the filing of
a petition and expressly weighs the § 18(b)(1) factors.

Senator Schumer is quoted:

Indeed, the
stay factors in § 18(b)(1) are drawn from a case in which a
district court was considering a stay at the petition stage
for a similar proceeding. See 157 Cong. Rec. 3416 (2011)
(remarks of Sen. Schumer) (“this amendment instructs
courts to apply the four-factor test first announced in
[Broadcast Innovation, L.L.C. v. Charter Communications
Inc., No. 03-cv-2223, 2006 WL 1897165 (D. Col. July 11,
2006)] when evaluating stay motions”). And that is
exactly how most district courts have been applying § 18,
which, perhaps not coincidentally, also furthers the
uniformity of stay decisions in cases where CBM patents
may be at issue. See, e.g., buySAFE, Inc. v. Google, Inc.,
No. 3:13CV781-HEH, 2014 WL 2714137, at *3 (E.D. Va.
June 16, 2014); Market-Alerts Pty. Ltd. v. Bloomberg Fin.
L.P., 922 F. Supp. 2d 486, 490 n.5 (D. Del. 2013).


Post a Comment

<< Home