Wednesday, April 07, 2021

Apple and Fish&Richardson go down in flames at the CAFC

The outcome was that Apple lacked standing to be in the appeals court:

Apple Inc. appeals an inter partes review final written decision of the Patent Trial and Appeal Board holding Apple did not prove claims 1–14 and 16–18 of U.S. Patent No. 7,844,037 would have been obvious. Apple also appeals another final written decision of the Board holding Apple did not prove claims 1–6 and 8–20 of U.S. Patent No. 8,683,362 would have been obvious. Because Apple lacks standing to maintain either appeal, we dismiss.

The "Consumer Watchdog" case was cited in an odd way:

“Article III standing is not necessarily a requirement to appear before an administrative agency.” Consumer Watchdog v. Wis. Alumni Research Found., 753 F.3d 1258, 1261 (Fed. Cir. 2014) (citing Sierra Club v. E.P.A., 292 F.3d 895, 899 (D.C. Cir. 2002)).

In THAT case, "Consumer Watchdog" was found to LACK STANDING, and the appeal thrown out. Thus, the citation is to a statement not relevant to the decision in "Consumer Watchdog." Furhtermore, on the technical side, in the time since, the particular stem cells in question proved to be irrelevant.

The Apple case contains some interesting quotes:

These rules prevent an appellee or respondent from having to “flail at the unknown in an attempt to prove the negative.” Sierra Club, 292 F.3d at 901.

(“[B]uyer’s remorse, without more, is not a cognizable injury under Article III of the United States Constitution.”).

The "judicial notice" comment was of interest:

To cure the deficiencies in its evidence, Apple suggested we could take judicial notice that Apple sells and will continue to sell its smart phone products. Oral Arg. at 33:45–34:19. A court may take judicial notice of a fact only when it is either “generally known” or “accurately and readily [discernible] from sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b); see B.V.D. Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of facts of universal notoriety, which need not be proved, and of whatever is generally known within their jurisdictions.”) What products and product features Apple may be selling at the expiration of the license agreement years from now are not the kind of undisputed facts we may take judicial notice of because they may be reasonably questioned. See, e.g., In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (declining to take judicial notice of a “long-felt but unresolved need for a device that will help the blind read”). We are not fortune-tellers. Accordingly, we must decline Apple’s invitation to take judicial notice


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