Wednesday, August 26, 2020

CAFC does design patents in Sealy case

Sealy lost on obviousness grounds: Because we affirm the Board’s obviousness determination over the Aireloom Heritage reference, we decline to consider Sealy’s challenges to the other four references. We have considered Sealy’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board. The obviousness analysis for design patents requires that there be a prior art design that qualifies as a primary reference. Spigen, 955 F.3d at 1383, 1385. Whether a prior art design qualifies as a primary reference depends on whether the prior art reference “creates ‘basically the same’ visual impression as the claimed design.” Id. (cleaned up). The determination of whether a prior art design qualifies as a primary reference is a factual issue. Id. As to copying: Sealy’s “copying” argument during the reexamination proceeding was based mainly on the fact that Sealy’s mattress designs were on the market for over a year before Simmons introduced its alleged copycat products. See Appellant’s Br. 55–57 (citing J.A. 2370–72). The Board, in its decision on rehearing, stated that it “did not overlook evidence of copying,” but instead “agreed with the examiner’s general determination as to secondary considerations,” which included “acknowledging [Sealy’s] assertions as to copying.” Decision on Rehearing, 2019 WL 1489533, at *2. Indeed, the examiner’s general determination noted that Sealy presented argument regarding alleged “copying,” among other secondary considerations. J.A. 2498. The examiner then found Sealy’s secondary considerations to be unpersuasive and to not outweigh the strong evidence of obviousness presented in the Board’s new grounds of rejection. J.A. 2498–99 (“the strong evidence of obviousness presented in the new grounds of rejection by the Board outweighs the secondary considerations”); see also W. Union Co. v. MoneyGram Payment Sys., Inc., 626 F.3d 1361, 1373 (Fed. Cir. 2010) (“[W]eak secondary considerations generally do not overcome a strong prima facie case of obviousness.”). While a more comprehensive discussion of “copying” would be preferred, given the circumstances here—including the appropriate interpretation of “contrast,” the analysis and application of the prior art, and the examiner’s and Board’s more detailed discussion of other secondary considerations—we disagree that the comparatively limited discussion of “copying” alone constitutes a sufficient basis to disturb the Board’s overall determination of obviousness. See MySpace, Inc. v. GraphOn Corp., 672 F.3d 1250, 1263–64 (Fed. Cir. 2012) (finding no error in a district court’s failing to explicitly mention secondary considerations “when the record establishes that the evidence was properly before and considered by the court”).

Saturday, August 22, 2020

CAFC mentions "obvious to try" in Kross case

We likewise reject Kross’s argument that the Board impermissibly employed an “obvious to try” rationale. Kross’s arguments in this regard focus on the Board’s statement that the “reasonable expectation of successfully solving a known problem using known properties of a known material i[s] generally prima facie obvious.” J.A. 6–7. We do not read into this statement the error that Kross complains of. This is not a case, as Kross contends, where “the prior art gave no indication of critical parameters and no direction as to which of many possibilities is likely to be successful.” Appellant’s Br. 24–25 (quoting In re Copaxone Consol. Cases, 906 F.3d 1013, 1025 (Fed. Cir. 2018)). As Kross himself contends, Taylor and Germain identified the parameters that would have been of concern to a skilled artisan (cracking, splitting). Chen teaches that non-gelatin, gel polymers would be beneficial in fixing these critical parameters (high dimensional stability, crack and tear resistance). That is a far cry from impermissibly requiring that a skilled artisan, without any guidance from the prior art, “vary all parameters” until one succeeds. Kubin, 561 F.3d at 1359.

Friday, August 21, 2020

"Security People" loses at the CAFC

The outcome: Security People, Inc., appeals the district court’s dismissal of its Administrative Procedure Act suit challenging the constitutionality of the cancellation of its patent in an inter partes review proceeding. Because Congress foreclosed the possibility of collateral APA review of inter partes review decisions by district courts, and because Security People cannot bring an APA challenge when the statutory scheme separately establishes an adequate remedy in a court for its constitutional challenge, we affirm the district court’s dismissal. The arguments The PTO responded to the complaint by moving to dismiss the suit on three grounds: (1) the district court lacked subject matter jurisdiction because Congress established a specific means for judicial review of IPR decisions, rendering collateral APA suits in district court inappropriate; (2) Security People failed to state a claim because it is barred from raising arguments it could have raised in an earlier proceeding; and (3) Security People failed to state a claim because precedent renders its claim meritless. The district court noted: The district court agreed with the PTO on the first ground, dismissing the suit for lack of subject matter jurisdiction. See Sec. People, Inc. v. Iancu, No. 18-cv-06180- HSG, slip op. at 4 (N.D. Cal. Jun. 10, 2019), ECF No. 28, (Decision). The court reasoned that because the America Invents Act (AIA)—codified in relevant part at 35 U.S.C. §§ 319, 141(c)—provides for “broad Federal Circuit review” of the Board’s final written decisions, see Decision at 3, but allows for review “only” in the Federal Circuit, see § 141(c), Congress discernibly intended to preclude district court review of Board decisions under the APA. The CAFC noted: More generally, we agree with the district court that the statutes providing for exclusive review of the Board’s final written decisions in this court preclude district courts from exercising APA jurisdiction over claims challenging the constitutionality of a final written decision. “[A] statutory scheme of administrative review followed by judicial review in a federal appellate court [can] preclude[] district court jurisdiction over a plaintiff’s statutory and constitutional claims” if “Congress’ intent to preclude district court jurisdiction [is] ‘fairly discernible in the statutory scheme.’” Elgin, 567 U.S. at 9–10 (quoting Thunder Basin, 510 U.S. at 207). “To determine whether it is ‘fairly discernible’ that Congress precluded district court jurisdiction over [Security People’s] claims, we examine the [statute’s] text, structure, and purpose.” Id. at 10.

Dr. Richard Sowinski loses at the CAFC under FRCP 41(b)

The issue: Dr. Sowinski argues that the merits of patent infringement were not adjudicated in Sowinski I, for the action was dismissed because he did not comply with the district court’s local rule for responding to a motion to dismiss. He argues that this was not a final judgment on the merits, because the dismissal was based on the technicality of a local deadline. He states that the imposition of res judicata on this basis is “manifestly unjust” because there was no trial of the question of infringement, and that if an infringement suit is now barred his patent is essentially invalidated because the CARB Cap-and-Trade Program is the only known infringing activity. BUT Federal Rule of Civil Procedure 41(b) provides that a dismissal for failure to prosecute “operates as an adjudication on the merits,” with exceptions not here applicable: 41(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits. . . . The Federal Circuit has applied these principles. See, e.g., Nystrom v. Trex Co., 580 F.3d 1281, 1284-85 (Fed. Cir. 2009) (“In its simplest construct, [claim preclusion bars] the relitigation of a claim, or cause of action, or any possible defense to the cause of action which is ended by a judgment of the court.”); Senju, supra.

Covid moments in New Jersey

The entrance door says:
But on the inside:
Separately, on Monday, August 17, 2020, Ten Eyck Park in North Branch, NJ opened for the first time in about one month and a half. By Friday morning, August 21, 2020 it was closed again. Not clear what happened to close it again.

Monday, August 10, 2020

Blackbird prevails against Fitbit at CAFC

The outcome Blackbird Tech LLC, d/b/a Blackbird Technologies, owns U.S. Patent No. 6,434,212, which describes and claims a device that counts an individual’s steps and, based on the length and rate of those steps, provides the individual with information such as distance traveled and speed. Fitbit, Inc. and Wahoo Fitness LLC each sought an inter partes review of claims 2, 5, and 6 of the ’212 patent. The Patent Trial and Appeal Board of the Patent and Trademark Office instituted the requested reviews and consolidated the proceedings. The Board ultimately determined that Fitbit had proven claim 6 of the ’212 patent unpatentable for obviousness but had not proven claims 2 and 5 unpatentable. See FitBit, Inc. v. Blackbird Tech, LLC, No. IPR2017-02012, 2019 WL 1118863 (P.T.A.B. Mar. 11, 2019). Blackbird appeals the Board’s ruling on claim 6. We affirm. AND But the Board’s conclusion of unpatentability did not rely on a modification of Kato’s equation—it relied on a finding that a relevant skilled artisan would consider Kato’s equation to teach claim 6’s limitation. To determine the “meaning of a prior art reference,” the Board must incorporate “the understanding of an artisan of ordinary skill.” Finisar Corp. v. DirecTV Grp., Inc., 523 F.3d 1323, 1336 (Fed. Cir. 2008). Here, the Board determined that a relevant skilled artisan would be an engineer with either a master’s degree or multiple years of work experience. FitBit, 2019 WL 1118863, at *5. The Board could readily find that such a person would understand Kato’s teaching of a very simple multiplicative relationship to teach the form of that relationship that involves the elementary process of unit cancellation between numerator and denominator. Accordingly, the Board had a sufficient basis to find that a relevant artisan would have considered Kato’s method for calculating distance traveled to be identical to claim 6’s limitation.

The CAFC does PACER in NVLSP v. UNITED STATES: PACER fees LIMITED to the amount needed to cover expenses incurred in services

The outcome: These interlocutory cross-appeals challenge the district court’s interpretation of a statutory note to 28 U.S.C. § 1913 permitting the federal judiciary to charge “reasonable fees” for “access to information available through automatic data processing equipment.” Plaintiffs contend that under this provision unlawfully excessive fees have been charged for accessing federal court records through the Public Access to Court Electronic Records (PACER) system and that the district court identifies too little unlawful excess. The government argues that the district court identifies too much (and also that the district court lacked jurisdiction). We conclude that the district court got it just right. We therefore affirm and remand for further proceedings. Some history In April 2016, plaintiffs—three national nonprofit organizations that have downloaded public court records via PACER—brought a class action against the United States, alleging that the incurred PACER fees “exceeded the amount that could lawfully be charged” under § 1913 Note because the fees did not reflect the cost of operating PACER alone. J.A. 87 ¶ 34. Plaintiffs alleged that each individual download of a public record for which they were charged gave rise to a separate “illegal exaction” claim— that is, a claim that money was “improperly paid, exacted, or taken from the claimant” in violation of law, Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005). J.A. 75, 87 ¶ 34. Asserting subject-matter jurisdiction under the Little Tucker Act, 28 U.S.C. § 1346, plaintiffs sought the “return or refund of the excessive PACER fees” collected over the previous six years, from 2010 to 2016.5 J.A. 77 ¶ 5; J.A. 87 ¶ 34. Turning to the merits, the only issue presented in the main appeal is one of statutory interpretation, as neither party has identified any material disputed factual issues at this stage. We review de novo the district court’s statutory interpretation. BASR P’ship v. United States, 915 F.3d 771, 776 (Fed. Cir. 2019). “We focus our inquiry on the statutory language.” Id. Our “first step ‘is to determine whether the language at issue has a plain and unambiguous meaning.’” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). In making this assessment, we secondarily consider the surrounding legislative history and principles of constitutional avoidance. The outcome: We agree with plaintiffs and amici that the First Amendment stakes here are high. See generally Br. of Amici American Civil Liberties Union et al. (discussing the First Amendment right of access to judicial proceedings and records, including via PACER). If large swaths of the public cannot afford the fees required to access court records, it will diminish the public’s ability “to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government.” Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606 (1982). Such concerns bolster our rejection of the government’s more sweeping interpretation of § 1913 Note as permitting EPA fees high enough to cover all electronic access to court information. But we do not foresee the district court’s middle-ground interpretation permitting EPA fees to be used for PACER, CM/ECF, and EBN as resulting in a level of user fees that will significantly impede public access to courts.16 As for the nondelegation concern, we agree with the district court that both the text and legislative history of § 1913 Note demonstrate that Congress adequately authorized the use of EPA fees for more than just operating PACER. See Summary Judgment Opinion, 291 F. Supp. 3d at 142–43. We therefore hold that § 1913 Note limits PACER fees to the amount needed to cover expenses incurred in services providing public access to federal court electronic docketing information.

Tuesday, August 04, 2020


The outcome:

In this appeal, the parties dispute whether the patentee was permitted to prove that the Appellants’ products infringed the claims of the asserted patent by showing
that: (1) the patent claims are essential to mandatory aspects of the Long-Term Evolution (“LTE”) standard; and (2)
the accused products practice that standard. Appellants
assert that, if Appellee wanted to resort to that theory of
infringement, it was required to ask the court to decide the
question of the claims’ essentiality to the standard in the
claim construction context and that the court needed to decide that question as a matter of law. Unsurprisingly, Appellee disagrees. We find no error in the submission of
these questions to the jury in the context of an infringement trial.


Accordingly, we reject TCL’s reading of Fujitsu.
Where, as here, there are material disputes of fact regarding whether asserted claims are in fact essential to all implementations of an industry standard, the question of
essentiality must be resolved by the trier of fact in the context of an infringement trial. Viewed through this lens, we
find that substantial evidence fully supports the jury’s infringement verdict