Wednesday, July 26, 2017

Apple crushed by WARF in latest district court ruling

Back in October 2015, the Christian Science Monitor wrote of the WARF/Apple case:

What makes the case unusual was the party that sued: a computer science professor and three graduate students from the University of Wisconsin-Madison.
The university research team, headed by Guri Sohi, filed a patent in 1998 for microchip technology that Apple used in the most recent versions of the iPad and iPhone, a US federal jury ruled on Tuesday. On Friday, the court awarded $234 million in damages.
The ruling is a victory for university researchers, proclaimed the Wisconsin Alumni Research Foundation (WARF), a non-profit that exists primarily to help University of Wisconsin professors with patents.
"This is a case where the hard work of our university researchers and the integrity of patenting and licensing discoveries has prevailed," Carl Gulbrandsen, managing director of WARF, said in a news release. "This decision is great news for the inventors, the University of Wisconsin-Madison, and for WARF."

On July 26, 2017, Fortune reported:

U.S. District Court Judge William Conley on Tuesday ruled that Apple should pay $506 million in damages for allegedly infringing a patent owned by the Wisconsin Alumni Research Foundation (WARF). The judge, whose ruling was earlier reported on by Reuters, added $272 million to a previous $234 million damages tally because the iPhone maker continued to infringe the patent, according to the judge.


July 25 post on Reuters:

In passing, from ABS GLOBAL, INC., 2016 U.S. Dist. LEXIS 96307

Any probative value of the PTAB ruling is far outweighed by the potential for unfair prejudice and risk of jury confusion because the IPR proceeding is subject to different standards, purposes and outcomes than the original prosecution and the court proceeding. ST attempts to distinguish the court's similar ruling in WARF v. Apple based on ABS's assertion of an antitrust claim is unavailing. In particular, ST does not explain how PTAB's decision is somehow more relevant to its defense of ABS's antitrust claim, beyond the general proposition that its patent was not reviewed by PTAB, which is the same ambiguous ruling the court found confusing and unfairly prejudicial in WARF.

**Separately, in another "academic" patent area (CRISPR), UC/Berkeley is pushing forward. From SCIENCE

UC leads a group of litigants who contend that the U.S. Patent Trial and Appeal Board (PTAB) wrongly sided with the Broad Institute in Camrbidge, Massachusetts, and two partners—Harvard University and the Massachusetts Institute of Technology in Cambridge—in February when it ruled that the Broad group invented the use of CRISPR in eukaryotic cells. After that ruling, UC moved the battleground to the U.S. Court of Appeals for the Federal Circuit. In a 25 July brief to the Federal Circuit, the UC group contends that PTAB “ignored key evidence” and “made multiple errors.”


The UC group contends PTAB ignored key decisions on these general questions made by the U.S. Supreme Court and the Federal Circuit. It reiterated its long-held claim that applying CRISPR to eukaryotic cells was so obvious that six different labs did it in the same time frame, which it complains the PTAB “essentially dismissed as ‘irrelevant.’” And its brief notes that patent examiners rejected similar eukaryotic cell CRISPR patent applications from Sigma-Aldrich and ToolGen—filed before the Broad’s patent application—because it made claims that were “non-novel” or obvious in light of UC’s disclosed work.

Jacob Sherkow, an intellectual property attorney at the New York Law School in New York City who has closely followed each round in the fierce battle, says the UC group’s brief at times “overplays these mistakes relative to the PTAB's analysis.” He notes that the PTAB’s decision was “thorough” and the standards to overturn its decisions are high. “While there were some interesting chestnuts in its brief—such as UC pointing out that the PTAB virtually ignored some important patents pending at the time [the Broad] patent was filed—I don't think that's going to be enough to win the day [for] UC,” he says.



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