Wednesday, June 30, 2021

Gettysburg 158th Anniversary

There are a number of programs during the July 1 to July 3 anniversary. Note some are virtual and thus available even if one does not make it to Gettysburg.

For July 3

Battle Walk: "A Desperate Thing to Attempt” - Pickett’s Charge Visitors are invited to follow in the footsteps of the Confederate soldiers that took part in Pickett’s Charge, the climactic moment of the Battle of Gettysburg. Who were the men that made this assault, what motivated them, and what did they experience in the fields between Seminary and Cemetery Ridge? Join Ranger Matt Atkinson and retrace the route of the most famous charge in American military history. This program involves significant hiking and walking occasionally over rough terrain. Water, headgear, sun protection, insect repellent, and comfortable, sturdy walking shoes are highly recommended. Meet at the Virginia Monument, Auto Tour Stop 5. Park along West Confederate Avenue. Keep all wheels on pavement. 3 pm Anniversary Lecture Series Over the anniversary of the battle Park Rangers and historians will host hour-long presentations, offering unique perspectives on the events of 158 years ago. This special series is co-sponsored by Gettysburg National Military Park and the Gettysburg Foundation. 8 pm - All tickets are SOLD OUT but we will live stream this event on our Facebook page.

See also

Separately, the following is something which was intended for May 2020, but Covid intervened:

Of relevance to a theme in the above jpg, note from Warren Spahn:

“I didn’t retire from baseball. Baseball retired me.”

And of Spahn's connection to Casey Stengel:

“I’m the only guy to play for Casey Stengel before and after he was a genius.”

Access Masters case; issues of contempt and product re-design

The outcome of an action in which Gate Arm is the patentee and Access Masters is the entity who re-designed an accused product. Gate Arm lost a motion for contempt.

GateArm Technologies, Inc. (GateArm) owns U.S. Patent Nos. 8,845,125 and 9,157,200, both titled “Vehicle Barrier System with Illuminating Gate Arm and Method.” In 2014, GateArm sued Access Masters LLC, Blacksky Technologies, Inc., and, LLC (collectively, Access Masters) for infringing the ’125 and ’200 patents. In 2016, the parties settled the dispute, and the district court entered a consent decree based on a signed Settlement Agreement. See Order, GateArm Techs., Inc. v. Access Masters LLC, No. 0:14-cv-62697 (S.D. Fla. Mar. 29, 2016), ECF No. 53 (Consent Decree); J.A. 1634–36. Later that year, after Access Masters introduced a modified product, GateArm moved to reopen the case to obtain a finding that Access Masters was in contempt of the consent decree for marketing and selling the new product and to order such activities to cease. The magistrate judge to whom the matter was assigned recommended that GateArm’s motion for contempt be denied, and the district court adopted the recommendation. See Gatearm Techs., Inc. v. Access Masters, LLC, No. 0:14-cv-62697, 2020 WL 4923637, at *1 (S.D. Fla. Aug. 21, 2020) (District Court Order). We affirm. (...)
On April 30, 2020, the magistrate judge issued a report and recommendation, advising against finding contempt. See Gatearm Techs., Inc. v. Access Masters, LLC, No. 0:14- cv-62697, 2020 WL 6808670 (S.D. Fla. Apr. 30, 2020) (Report and Recommendation). The magistrate applied the contempt standards set forth in TiVo Inc. v. EchoStar Corp., 646 F.3d 869 (Fed. Cir. 2011) (en banc). She found that GateArm had not proved the newly accused product to be “no more than colorably different” from the originally accused product, see Report and Recommendation, 2020 WL 6808670, at *16, and that Access Masters’s newly accused product does not infringe, concluding that it does not have the “terminating ends” of the “sidewalls” required by the claims of the ’125 patent, see id. at *17. The district court agreed with the magistrate judge, adopting the recommendation on August 21, 2020. See District Court Order, 2020 WL 4923637, at *1.

Of the law:
(...) Applying Eleventh Circuit law, we review a district court’s ultimate determination of contempt for an abuse of discretion. See In re Managed Care, 756 F.3d 1222, 1232 (11th Cir. 2014); Baden Sports, Inc. v. Molten USA, Inc., 556 F.3d 1300, 1304 (Fed. Cir. 2009). “‘When employing an abuse-of-discretion standard, we must affirm unless we find that the district court has made a clear error of judgment, or has applied the wrong legal standard.” Managed Care, 756 F.3d at 1232 (quoting United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (cleaned up)).

Tuesday, June 29, 2021

CAFC affirms WD Washington. Zillow wins. Corus loses.

Zillow survived an appeal by Corus at the CAFC:

Appellant appeals a decision of the United States District Court for the Western District of Washington granting Zillow Group, Inc.’s motion for summary judgment that Zillow did not infringe Appellant’s patent. Corus claims that the district court erred in granting summary judgment of noninfringement based on incorrect claim constructions and that the court erred in striking portions of its expert witness report. We affirm

On October 30, 2019, Zillow moved to exclude several of Corus’s infringement theories and portions of Dr. Martin’s expert report that were untimely disclosed. ECF No. 58 at 1. The court granted the motion on January 30, 2020. ECF No. 114 at 24. On February 18, 2020, the district court issued an order granting in part Zillow’s motion for summary judgment of noninfringement. J.A. 1–49, ECF No. 138. The district court agreed with Zillow that “search,” as stated within the construction of the “database” limitation, required that the user be capable of obtaining “new” property information and that for such “new” searches in Zillow’s apps, “all searches in the apps rely on remote databases on the Internet.” J.A. 2185; see also J.A. 21–22 (the district court opining that “the alleged functionality of the Zillow Apps does not meet the database limitations.”). It was undisputed that using the Zillow Mobile Apps, property information is (i) obtained from Zillow’s remote servers, (ii) placed in memory on the mobile device, and (iii) retrieved from memory and displayed to the user when a user clicks a property icon. J.A. 22. The district court found it relevant, however, that “a user cannot obtain additional property information without connecting back through the Internet to the remote database.” Id. (emphasis added). Under this view, the district court found that “the ‘retrieval’ of property information from working memory [on the mobile device], where the application is not designed to obtain any new information except through internet access to a remote database does not mean that the working memory is a ‘database’” for purposes of meeting the claim limitation. J.A. 23

We are not persuaded by Corus’s argument that the amendments were not made to distinguish the invention from “crowd-sourced” or “fused” system, but rather to overcome the specific citation to the prior art that taught the use of GPS alone. The language of the amended claims appears to make the disclaimers found by the district court. In addition, an amendment is typically made to overcome an examiner’s rejection. Corus unpersuasively argues it made its claim amendment at the examiner’s suggestion rather than to overcome the obviousness rejection. We therefore agree with the district court that Corus lacked evidence of the “cellular-based location data” limitation because the Zillow Apps do not themselves determine a user’s location. Rather, they request location information from the operating system (Apple iOS or Google Android). J.A. 13, Appellee’s Br. 43. And as the district court explained, even if the expert testimony cited by Corus regarding Apple and Google’s location functionality (which the district court excluded) “was based on personal knowledge, it is not evidence that the Zillow Apps” meet the claim limitation because at most the testimony suggests that the Zillow Apps might utilize “fused” or “crowd-sourced” location data. J.A. 37–38. Accordingly, we affirm the district court’s determination of noninfringement based on the “cellular-based location data” limitation.

Just before Gettysburg, the first Civil War battle on "northern" soil: Hanover

An anniversary of the Civil War battle of Gettysburg is approaching. However, one notes there was a significant battle in Hanover, PA on June 30, 1863, the day before fighting AT Gettysburg began.
See for example 10,000+ attended dedication of Hanover's Civil War monument about the dedication of a statue in the year 1905.

Thousands of people celebrated the dedication of the statue in late September 1905. It was one of the largest turn-of-the-century events in Hanover, and indeed in all of York County. The governor, former Civil War soldier Samuel W. Pennypacker, was on hand to deliver a few remarks. He had been a member of the 26th Pennsylvania Volunteer Militia that had come through Hanover via train on their way to guard Gettysburg against Jubal Early's division, a task they failed to do on June 26, 1863, in inter-connected skirmishes at Marsh Creek, Rock Creek, and the Witmer Farm. The regiment contained a company of men from Hanover; many had been captured. Just four days later, their fellow Hanoverians witnessed fighting in the streets of the town and surrounding hills and fields. More than 300 soldiers fell wounded or dead in the Battle of Hanover, the largest military engagement in York County's long history. The Picket was meant to commemorate that battle for future generations.

(...) The letter carving on the tablets show the position of the different corps, when the fight at Hanover took place, on June 30, 1863, between the forces of General Kilpatrick, commanding the Third division of Pleasanton's [sic. Pleasonton's] cavalry, and General J. E. B. Stuart with three brigades of Lee's cavalry corps. Stuart had present at Hanover about 6,000 men [more likely 4,500], with Fitzhugh Lee, Wade Hampton and John R. Chambliss commanding the brigades. General George A. Custer, who was then only twenty-five years of age, commanded the Michigan brigade of Kilpatrick's cavalry. The other brigade was led by General [Elon] Farnsworth, who was killed four days later at the cavalry fight during the battle of Gettysburg."

Custer was commanding a brigade including Michigan units armed with Spencer repeating rifles, which units saw action on East Cavalry Field on July 3. Sadly, Farnsworth had a different fate on the west side of the battlefield.

Sunday, June 27, 2021

Covid delta in NJ on 27 June 2021

Further to the IPBiz post

note the cover story of the Courier News on 27 June about "variant spreads"

UPDATE on June 29, 2021

Covid made page A12 of the Newark Star Ledger on June 29:

Saturday, June 26, 2021

Juneteenth and the Emancipation Proclamation

On June 25, 2021, one Clarence Lusane, a professor of political science at Howard University, posted an article in the Washington Post titled The Emancipation Proclamation did not end slavery. Here’s what did.

The most notable error was in failing to mention that the Emancipation Proclamation did not address slavery in the Confederate state of Tennessee. Lusane wrote:

After a year and a half of war, Lincoln came to believe that the only way to save the Union was to abolish slavery. In August 1862, he drafted the Emancipation Proclamation, which was to take effect Jan. 1, 1863, with his signature. Because he saw it as a war measure, the order freed only the enslaved people in states “in rebellion against the United States.” (...) That last clause outlines exactly what the Emancipation Proclamation did: Free some and not others. It did not apply to enslaved people in the five non-Confederate states noted above.

The Proclamation did not impact slaves in Tennessee or in certain other areas of the Confederacy.

Of the discussion of West Virginia, West Virginia was admitted to the Union on June 20, 1863, after the Emancipation Proclamation.

See the IPBiz post On the meaning of "Juneteenth" , published more than one year before the Lusane piece.

IPBiz agrees with Lusane as to the date of the 13th Amendmnet:

As a legal matter, slavery officially ended in the United States on Dec. 6, 1865, when the 13th Amendment was ratified by two-thirds of the then-states — 27 out of 36 — and became a part of the Constitution.

A reader of a 2011 IPBiz post had written

Actually, the 13th Amendment was enacted on December 18th, 1865. So your Monday Morning Quarterbacking WAS WRONG too, even after you performed research.

That 2011 IPBiz post New Jersey and the 13th Amendment raises another issue: the Emancipation Proclamation did not end slavery in New Jersey, which DID EXIST at the time of the Civil war.

Friday, June 25, 2021

3M loses appeal at CAFC; PTAB need not “play archeologist with the record”

The outcome:

For the foregoing reasons, we affirm the Board’s decision rejecting 3M’s obviousness challenge to dependent claims 3 and 4 of the ’056 patent.

The problem for 3M:

We agree with the Board that the Request for Rehearing contained the first clear articulation of 3M’s argument regarding why the 220 psi “minimum” taught by Braud did not pose an obstacle to a finding that claims 3 and 4 were obvious under 3M’s Ground 4. As discussed above, the arguments about routine optimization in 3M’s Petition and Petitioner Reply are skeletal at best, and these filings do not mention the 220 psi “minimum” teaching of Braud at all. Thus, we are not persuaded that the Board abused its discretion when it concluded that 3M’s arguments were present in the briefing prior to the Final Written Decision only in the form of improper incorporation by reference to Dr. Prud’homme’s testimony.

The CAFC noted

The Board’s rules concerning trial practice are set forth in 37 C.F.R. Chapter 1, Subchapter A, Part 42 (Trial Practice Before the Patent Trial and Appeal Board). Section 42.6 of the rules concerning Filing of Documents, regarding incorporation by reference, provides that “[a]rguments must not be incorporated by reference from one document into another document.” 37 C.F.R. § 42.6(a)(3). When promulgating § 42.6(a)(3), the Patent and Trademark Office explained that the rule “minimizes the chance that an argument would be overlooked and eliminates abuses that arise from incorporation and combination,” Rules of Practice for Trials Before the Patent Trial and Appeal Board and Judicial Review of Patent Trial and Appeal Board Decisions, 77 Fed. Reg. 48,612, 48,617 (Dep’t of Commerce Aug. 14, 2012), and noted that without the rule, the Board would be forced to “play archeologist with the record” for arguments that might have been made outside the parties’ briefing, id. (citing DeSilva v. DiLeonardi, 181 F. 3d 865, 866–67 (7th Cir. 1999)).
The Board stated that “Petitioner’s argument on rehearing amounts to a contention that we overlooked Petitioner’s invitation to formulate arguments on their behalf, search the record for pertinent facts, and inject our own reasoning. That is not our role.” Rehearing Decision at *3.

Covid figures from CDC as of June 24, 2021; Missouri has most new cases

On covid, from the CDC on 24 June 2021, on 7-Day Case Rate per 100,000:

Missouri 86.6 Wyoming 72.1 Nevada 70.4 Virgin Islands 68.8 Utah 67.7 Arkansas 63.4 Florida 50.3 Colorado 48.5 Louisiana 46.3 Washington 42.8 Arizona 41.5 [10th worst state] Oregon 38.8 Montana 35.7 Oklahoma 33.7 Idaho 33.6 Alaska 33.2 New Mexico 31.6 Guam 30.2 Mississippi 29.9 Indiana 24.2 Texas 23.4 Kansas 23.1 [20th worst state] Georgia 21.6 West Virginia 21.1 Kentucky 20.7 Alabama 20.2 North Carolina 19.4 [25th worst state] Hawaii 19.3

Delaware 18.6 South Carolina 17.5 California 17.2 New Jersey 16.8 Ohio 15.4 Iowa 15.3 New York City* 15.1 North Dakota 14 Rhode Island 14 Maine 12.8 Nebraska 12.7 Tennessee 12.6 Minnesota 12.5 New Hampshire 12.5 Illinois 12.3 Virginia 11 Pennsylvania 10.7 Michigan 10.6 Wisconsin 10.4 Puerto Rico 9.7 South Dakota 9.7 New York* 9.5 District of Columbia 8.6 Connecticut 7.9 Massachusetts 6.7 Maryland 6.7 Vermont 5 Northern Mariana Islands 0

CDC | Data as of: June 24, 2021 1:33 PM ET. Posted: June 24, 2021 10:08 PM ET

In passing, Lester Holt, on NBC Nightly News on June 24, confused Missouri with Mississippi.

Separately, on the positivity front, one notes "recent infections" does NOT correlate with "positivity" for the state of South Dakota. [And percent fully vaccinated does not correlate with recent infections for SC and Tenn.]

Also, note the discussion of the "delta plus" variant of covid:

As for the Delta Plus variant, Dr. Jeremy Kamil, a virologist at the Louisiana State University Health Sciences Center, told BBC News that there's not "much reason to believe this [Delta Plus] is any more dangerous than the original Delta." "I would keep calm," he said. "I don't think India or anyone else in the world has released or accumulated enough data to distinguish the risk from the so-called Delta Plus as being more dangerous or concerning than the original Delta variant."


TIME magazine wrote:

Delta Plus contains an additional mutation called K417N, in the part of the spike protein of the virus that binds to cells to start infection. But, says Dr. Ravindra Gupta, professor of clinical microbiology at the Cambridge Institute for Therapeutic Immunology and Infectious Diseases who has been genetically sequencing SARS-CoV-2 and studying its genetic evolution, “I predict 417 is not an important enough mutation. Delta is bad enough as it is and I don’t think 417 will change [it] that much or become dominant.”

Gupta’s lab has studied how well antibodies generated after natural infection or immunity provided by vaccines can protect against the Delta variant, and found that the protection is sufficient. However, it is lower than that generated against the Alpha variant. So it may only be a matter of time before vaccinated people need a booster shot with a new vaccine to enjoy long-term protection against Delta and Delta Plus. “We should be worried about the accumulation of mutations,” says Priyamvada Acharya, director of the division of structural biology at the Duke Human Vaccine Institute. “We should be worried about variants that are coming up that are more transmissible and resistant [to immune antibodies]. Should we be panicked yet? I don’t think so. But it’s important to get people vaccinated as fast as possible.”


Wednesday, June 23, 2021

In Apple v. Corephotonics, the CAFC finds PTAB relied upon " a clear mathematical error "

Of the issue of error, relevant to the obviousness portion of the case:

Obviousness is a question of law based on underlying fact findings that we review for substantial evidence, including “whether a [person of ordinary skill in the art] would have been motivated to combine the prior art to achieve the claimed invention and whether there would have been a reasonable expectation of success in doing so.” TQ Delta, LLC v. Cisco Sys., Inc., 942 F.3d 1352, 1357 (Fed. Cir. 2019) (quoting In re Warsaw Orthopedic, Inc., 832 F.3d 1327, 1333 (Fed. Cir. 2016)).

Our review of the Board’s decision is under the standard set forth in the Administrative Procedure Act, which “requires us to set aside conclusions or findings that are ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,’ or ‘unsupported by substantial evidence.’” Alacritech, Inc. v. Intel Corp., 966 F.3d 1367, 1370 (Fed. Cir. 2020) (quoting 5 U.S.C. §§ 706(2)(A), (E)). As a part of this review, “the Board is obligated to ‘provide an administrative record showing the evidence on which the findings are based, accompanied by the agency’s reasoning in reaching its conclusions.’” TQ Delta, 942 F.3d at 1358 (quoting In re Lee, 277 F.3d 1338, 1342 (Fed. Cir. 2002)). Where the Board’s decision is based on multiple alternative grounds, “we will uphold a decision of less than ideal clarity if the [Board’s] path may reasonably be discerned,” Japanese Found. for Cancer Rsch. v. Lee, 773 F.3d 1300, 1308 (Fed. Cir. 2014) (quoting Bowman Transp., Inc. v. Ark-Best Freight Sys., Inc., 419 U.S. 281, 285–86 (1974)), for example, if “at least one of [the] multiple grounds is valid and the [Board] would have acted on that ground even if others were unavailable.” Japanese Found., 773 F.3d at 1308 (citing Casino Airlines, Inc. v. Nat’l Transp. Safety Bd., 439 F.3d 715, 717 (D.C. Cir. 2006)).

Apple presented evidence to the Board that a skilled artisan would have reduced the F number of Konno’s telephoto lens EX2-LN2 from 4.0 to 2.8, as taught by Bareau, “‘to conform to modern cellphone camera lens specifications.’” Final Decision, 2019 WL 6999883, at *11 (quoting J.A. 122). The Board rejected Apple’s arguments, finding that Apple’s “rationale for combining Konno and Bareau is not supported by sufficient rational underpinning.” Id. at *12. Specifically, the Board found that, in the combination proposed by Apple, FNOm—from Konno’s telephoto lens EX2-LN2—“is lowered to 2.8, based on the teachings of Bareau,” which “fail[s] to satisfy Konno’s conditional expression (5).” Id. This finding is incorrect. Konno’s conditional expression (5) requires that the ratio of the F number for Konno’s wide-angle lens to the telephoto lens be within a certain range, “[d]esirably” between 0.6 and 1.3. J.A. 831 ¶ 37. As Apple explained in its opening brief, if the F number of Konno’s telephoto lens EX2-LN2 is decreased from 4.0 to 2.8, as taught by Bareau, the ratio of the F number for the wide-angle lens (3.0) to the telephoto lens in the modified Konno-Bareau lens assembly (2.8) would be 1.07, which, contrary to the Board’s finding, satisfies Konno’s conditional expression (5). Appellant’s Br. 56

Based on the decision before us, we are “unable to conclude that [the Board] would have reached the same decision absent its [mathematical] mistake[].” Hermes Consol., LLC v. E.P.A., 787 F.3d 568, 571 (D.C. Cir. 2015). As an initial matter, this is not a situation where we can reasonably discern that the Board was relying on multiple, independent grounds to support its finding. For instance, the Board explained that it was “not persuaded that the ordinarily skilled artisan would have looked to lower the FNOm value of Konno’s telephoto lens assembly based on Bareau’s teachings of a general preference to lower the F number in cellphone cameras with wide-angle lens assemblies.” Final Decision, 2019 WL 6999883, at *12. The Board also concluded that Apple failed to explain why a skilled artisan “would disregard Konno’s own intrinsic teaching of a lower F number (i.e., for a wide-angle lens assembly) and look to another reference, Bareau, also concerning wide-angle lens assemblies, to lower the F number of Konno’s telephoto lens assembly.” Id. (emphasis omitted). Thus, it is not clear if the basis for the Board’s decision is premised on the fact that Bareau’s teachings are limited to wide-angle lens assemblies, whereas Apple sought to modify Konno’s telephoto lens assembly, or its view that modifying Konno in view of Bareau would require disregarding Konno’s own intrinsic teaching. Nor can we discern from the Board’s decision whether the “intrinsic teaching” it was referring to was: (1) Konno’s conditional expression; (2) Konno’s statement that “‘it is advantageous to make the second imaging optical system darker than the first imaging optical system,’” id. (quoting J.A. 831 ¶ 38 (emphasis omitted)), i.e., by increasing the F number of the second optical imaging system (here, the telephoto lens EX2-LN2) compared to the first; or (3) both. We therefore vacate the Board’s determination that claims 6 and 14 would not have been obvious in view of Konno and Bareau, and remand to the Board for reconsideration.

CURIOUSLY the portion of the case LOST by Apple also hinged on error.

Here, Apple admits that Konno’s telephoto lens EX2-LN2—the sole embodiment that it relies on for anticipation—contains an error, specifically that lens elements L4 and L5 overlap. The Board found that “lens L4 and L5 of Konno’s lens assembly ‘cannot be arranged’ to provide ‘[a] lens assembly . . . [that] has an effective focal length (EFL), a total track length (TTL) of 6.5 millimeters or less’ as claimed without removing the overlap between lens L4 and L5.” Final Decision, 2019 WL 6999883, at *10 (alterations in original). As such, the Board found that Konno could not anticipate the challenged claims absent impermissible modification. See id. We discern no error with this conclusion. As the Board correctly noted, “[p]rior art that must be modified to meet the disputed claim limitation does not anticipate the claim.” Id. at *9 (quoting Enplas Display Device Corp. v. Seoul Semiconductor Co., 909 F.3d 398, 405 (Fed. Cir. 2008)). Such modifications are permissible only in an obviousness analysis.

Although Apple is correct that the EX2-LN2 embodiment meets the numerical requirements of the claims absent modification, the problem is that the relied upon embodiment is inoperative unless the overlap between lenses L4 and L5 is fixed. Under our precedent, such inoperative embodiments cannot be anticipatory. See In re Dowty, 118 F.2d 363, 366 (C.C.P.A. 1941) (“‘[A]n inoperative prior art device may not be relied upon as an anticipation.’” (quoting In re Kehl, 101 F.2d 193, 195 (C.C.P.A. 1939))).We therefore conclude that Konno’s inoperative telephoto lens EX2-LN2 cannot anticipate the challenged claims.

Tuesday, June 22, 2021

NBC and CBS both cover covid delta variant on June 21, 2021, with different emphasis

NBC Nightly News mentioned that eight states were problematic as to the new delta variant of Covid:

Of the eight, two states have high fractions of fully vaccinated individuals (NJ at 54% and HI at 50%)

Some of the states are significantly lower (TX, 39%; MO, 38%; OK, 37%; UT, 35%)

CBS chose to emphasize the latter.
Both networks had clips of Peter Hotez of Baylor.

In passing, note that the newspaper Courier News had a different slant on the presence of the delta variant in New Jersey ("low levels") in an article on June 22:

Saturday, June 19, 2021

Covid: does a higher fraction of "fully vaccinated" imply a lower fraction of covid infections? May be not.

As of 19 June 2021, the CDC reported the 10 "worst" states for Covid infections per 100,000 (7 day average) were

[Virgin Islands 77.4] Wyoming 71.4 Missouri 70.8 Colorado 63.2 Utah 62.5 Arkansas 57.3 Florida 47 Washington 43.5 Louisiana 43 Arizona 40.2 Oregon 40.2

CDC | Data as of: June 19, 2021 12:24 PM ET. Posted: June 19, 2021 1:40 PM ET link:

One notes that the 7th "worst" state [Washington] is ninth "best" state in terms of vaccination, with the percentage of population fully vaccinated: 51.08. Similarly, Oregon the tenth "worst" state is the 12th "best" state in terms of vaccination, with Percentage of population fully vaccinated: 50.4.

Back in April 2021, New Jersey was one of the "worst" states for Covid infections. Now, at 19.5 infections per 100,000, New Jersey is one of the better states:

North Carolina 21.2 Maine 19.8 New Jersey 19.5 Guam 18.7 Iowa 18.6 South Carolina 18.1 Ohio 17.8 Pennsylvania 17.4 Michigan 15.7 New York City* 15.7 Minnesota 15.6 Rhode Island 15.6 Illinois 15.5 Tennessee 14.6 New Hampshire 13.6 New York* 12.9 District of Columbia 11.5 California 10.6 Puerto Rico 10.2 Maryland 8.9 Massachusetts 8.8 Connecticut 7.7 Federated States of Micronesia N/A Virginia 11.4 Wisconsin 10 Nebraska 8.7 Vermont 6.9 South Dakota 6.6

New Jersey is number 7 in vaccinations, Percentage of population fully vaccinated: 53.34, BUT note that the "best" state for infections [South Dakota] is only number 25 for vaccinations, at Percentage of population fully vaccinated: 44.09. AND two "Southern" states, South Carolina and Tennessee, are "safer" than New Jersey, but have lower vax numbers [ SC at #40 Percentage of population fully vaccinated: 36.28 and Tenn at #45 at Percentage of population fully vaccinated: 33.92 ] link for vax numbers: States ranked by percentage of population fully vaccinated: June 17 Katie Adams - Updated Thursday, June 17th, 2021

link for Covid infections:

Microsoft loses in FG matter

The outcome was that Microsoft lost:

Microsoft Corporation (“Microsoft”) appeals from a final written decision of the United States Patent and Trademark Office Patent Trial and Appeal Board (“the Board”) holding that Microsoft failed to demonstrate that claims 18–25 of U.S. Patent 6,434,687 (“the ’687 patent”) were unpatentable. See Microsoft Corp. v. FG SRC LLC, No. IPR2018-01594, 2020 WL 1818685 (P.T.A.B. Apr. 9, 2020) (“Decision”). We affirm

Of note:

While we agree with Microsoft that the Board implicitly construed the selecting and transmitting limitations to require a current user, we disagree that the Board’s construction was erroneous. We begin with the claim language itself. FG contends that the preamble of claim 18, which recites “a process of accelerating access time of a remote computer to an internet site,” supports the Board’s construction because accessing an internet site is inherently performed by a single user. Appellee’s Br. 32. But we need not resort to the preamble or determine whether or not it is limiting to resolve the parties’ dispute. The body of claim 18 recites, among other things, transmitting N data elements from a remote computer to a server, selecting content of an internet site in response to the data elements, and transmitting the content to the remote computer. While claim 18 does not expressly recite that the selecting of web site content is performed immediately or for a current user, it does require that the selection is performed “in response to” the transmission of the data elements to the server. The requirement that the content selection is in response to the transmission of the data elements implies that the selection of web site content is triggered by the transmission of data and that both steps are performed as part of a single transaction—that is, by a single user. In contrast, Microsoft’s proposed construction would encompass a system (such as Obelix) in which data are collected during one phase from a first set of users and then stored for an indeterminate period of time until a later user initiates a search. In that case, the selection of web site content would not be “in response to” the transmission of the data, but in response to the separate event of a second user requesting web site content. As such, Microsoft’s proposed construction is too broad because it does not account for all the language of the claim. The written description accords with this understanding of the selecting limitation

Because we conclude that the Board did not err in determining that the selecting limitation of claim 18 requires the selection of data for a current user, and because Microsoft does not argue that Obelix discloses the selecting limitation under the Board’s construction, we need not consider whether Obelix discloses the selecting and transmitting limitations under Microsoft’s proposed construction.

Tuesday, June 15, 2021

Judge Newman's dissent in Yu v. Apple

Judge Newman's dissent begins:

The invention described and claimed in U.S. Patent No. 6,611,289 (“the ’289 patent”) is a digital camera having two lenses mounted in front of separate image sensors, with analog to digital conversion circuitry, a memory that stores the images, and a digital processor that enhances the images. This camera is a mechanical and electronic device of defined structure and mechanism; it is not an “abstract idea.” Observation of the claims makes clear that they are for a specific digital camera: (...)

This is a 101 case:

The majority states that this digital camera is ineligible for consideration for patenting because “claim 1 is directed to the abstract idea of taking two pictures (which may be at different exposures) and using one picture to enhance the other in some way.” Maj. Op. at 5. I repeat: claim 1 is for a digital camera having a designated structure and mechanism that perform specified functions; claim 1 is not for the general idea of enhancing camera images. The camera of the ’289 patent may or may not ultimately satisfy all the substantive requirements of patentability, for this is an active field of technology. However, that does not convert a mechanical/electronic device into an abstract idea (...)

In contravention of this explicit distinction between Section 101 and Section 102, the majority now holds that the ’289 camera is an abstract idea because the camera’s components were well-known and conventional and perform only their basic functions. That is not the realm of Section 101 eligibility. The Supreme Court disposed of this position in Diehr:

It has been urged that novelty is an appropriate consideration under § 101. Presumably, this argument results from the language in § 101 referring to any “new and useful” process, machine, etc. Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection “subject to the conditions and requirements of this title.” Specific conditions for patentability follow and § 102 covers in detail the conditions relating to novelty. The question therefore of whether a particular invention is novel is “wholly apart from whether the invention falls into a category of statutory subject matter.”

Diehr, 450 U.S. at 189–90 (quoting In re Bergy, 596 F.2d 952, 961 (C.C.P.A. 1979), vacated as moot, Diamond v. Chakrabarty, 444 U.S. 1028 (1980)). I stress this history, for the principle that the majority today invokes was long ago discarded. A device that uses known components does not thereby become an abstract idea, and is not on that ground ineligible for access to patenting.
In the current state of Section 101 jurisprudence, inconsistency and unpredictability of adjudication have destabilized technologic development in important fields of commerce. Although today’s Section 101 uncertainties have arisen primarily in the biological and computer-implemented technologies, all fields are affected. The case before us enlarges this instability in all fields, for the court holds that the question of whether the components of a new device are well-known and conventional affects Section 101 eligibility, without reaching the patentability criteria of novelty and nonobviousness. The digital camera described and claimed in the ’289 patent is a mechanical/electronic device that easily fits the standard subject matter eligibility criteria. Neither the panel majority nor the district court decided patentability under Section 102 or Section 103, having eliminated the claims under Section 101. The ’289 claims warrant review under the substantive criteria of patentability—a review that they have never received. The fresh uncertainties engendered by the majority’s revision of Section 101 are contrary to the statute and the weight of precedent, and contrary to the public’s interest in a stable and effective patent incentive.

I respectfully dissent.

Thursday, June 03, 2021

Speedtrack loses at CAFC. Interesting text: That can’t be right.

The outcome was that appellant lost:

SpeedTrack, Inc. (“SpeedTrack”) appeals the United States District Court for the Northern District of California’s final judgment of noninfringement, which hinged on the court’s claim construction. We affirm.

The usual words on claim construction were enumerated:

The words of a claim “are generally given their ordinary and customary meaning,” which is “the meaning that the term would have to a person of ordinary skill in the art.” Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). Claim terms “must be read in view of the specification.” Id. at 1315. And “the prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be.” Id. at 1317. “A patentee may, through a clear and unmistakable disavowal in the prosecution history, surrender certain claim scope to which he would otherwise have an exclusive right by virtue of the claim language.” Vita-Mix Corp. v. Basic Holding, Inc., 581 F.3d 1317, 1324 (Fed. Cir. 2009). We review claim construction based on intrinsic evidence de novo and review any findings of fact regarding extrinsic evidence for clear error. Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331–32 (2015).

(...) “Prosecution disclaimer can arise from both claim amendments and arguments.” Tech. Props. Ltd. v. Huawei Techs. Co., 849 F.3d 1349, 1357 (Fed. Cir. 2017). Here, we have both. On this prosecution record, we agree with the district court’s assessment. In no uncertain terms, “the applicant[]s argued that Schwartz had a ‘hierarchical’ relationship between fields and values that fell outside the scope of the amended claims.” J.A. 13. Therefore, the claims exclude predefined field-and-value relationships as explained by the district court. They are disclaimed. SpeedTrack interprets the prosecution record differently. According to SpeedTrack, the applicants indicated merely that the “category descriptions” of the ’360 patent are not the fields of Schwartz and that the hierarchical limitation precludes predefined hierarchical relationships only among category descriptions.5 Appellant’s Br. at 49, 59. We disagree. The ’360 patent applicants repeatedly highlighted predefined hierarchical field-and-value relationships as a difference between Schwartz and the ’360 patent.

Oral argument is cited:

Oral Arg. at 6:09–18 (recognizing that “Schwartz had a hierarchical relationship between the field and the values” but “did not have a hierarchical relationship between different values.”).6 This could not have distinguished Schwartz. But that is the import of SpeedTrack’s position. E.g., Oral Arg. at 3:45–4:18 (“‘Language’ would be a category and ‘French’ would be an example of that category. That relationship becomes excluded because of the court’s construction. It shouldn’t have been excluded. It wasn’t disclaimed.”); see Appellant’s Br. at 34–35. That can’t be right.

Footnote 6
6 No. 20-1573,

Note also

SpeedTrack also contends that the applicants distinguished Schwartz on other grounds. But that changes nothing. “An applicant’s argument that a prior art reference is distinguishable on a particular ground can serve as a disclaimer of claim scope even if the applicant distinguishes the reference on other grounds as well.” Andersen Corp. v. Fiber Composites, LLC, 474 F.3d 1361, 1374 (Fed. Cir. 2007). Plus, as Cross-Appellants point out, SpeedTrack’s position contradicts its other litigation statements. For example, SpeedTrack stated the following in a motion: The purpose of the amendment was to clarify that the claims, as amended, are distinguished from Schwartz’s and Cochran’s “field”/“attribute” configuration, which requires a “hierarchical” relationship between values and fields, i.e., each value must correspond to an associated field type (e.g., the term “English” (a value) must be related to the term “Language” (a field)).

Wednesday, June 02, 2021

CAFC affirms ITC in Bio-Rad case

Some background:

The asserted patents arise out of research conducted by inventors at a company called QuantaLife, Inc. Three of the inventors—Drs. Kevin Ness, Donald Masquelier, and Benjamin Hindson3—were among the founders of QuantaLife in 2008. In 2011, Bio-Rad purchased QuantaLife for approximately $160 million. See Order No. 15: Initial Determination Granting Complainants’ Motion for Summary Determination that the Doctrine of Assignor Estoppel Precludes Respondent from Challenging the Validity of the Asserted Patents, In the Matter of Certain Microfluidic Devices, USITC Inv. No. 337-TA-1068, 2018 WL 2003443, at *4 (Mar. 5, 2018) (“Assignor Estoppel Opinion”). With the purchase, Bio-Rad acquired QuantaLife’s patent rights, see id., presumably including QuantaLife’s rights to provisional patent applications from which the ’664, ’682, and ’635 patents claim priority. See J.A. 422, 475, 512. At the time of the purchase, Drs. Ness, Masquelier, and Hindson became employees of Bio-Rad, and over the following two years they executed assignments to Bio-Rad of their rights to the applications that later issued as the ’664, ’682, and ’635 patents. Assignor Estoppel Opinion, 2018 WL 2003443, at *5–6.

Not long after Bio-Rad acquired QuantaLife, Drs. Hindson and Ness left Bio-Rad to start 10X, and Dr. Masquelier joined 10X shortly thereafter as its fifth employee. Id. at *7. 10X has developed technology and products in the field of microfluidics that are designed for use with commercial next-generation sequencing platforms, with the goal of achieving DNA and RNA sequencing at the single cell level. Drs. Hindson, Ness, and Masquelier were all “extensively involved with the design, implementation, and/or manufacture” of 10X’s products. Id.

The meaning of the word "sample" is at issue!

10X further argues that the “hallmark” of a sample in the context of the ’664 patent is that there is something within it that is tested and analyzed. See 10X Br. at 27 (citing the ’664 patent’s definition of “analyte,” which is “a component(s) or potential component(s) of a sample that is analyzed in a test”). While 10X concedes that it performs quality control testing on a small subset of droplets, it argues that the monomers are not tested or analyzed in such a way as to make them samples because “they are an already-known starting material for an already-known polymerization reaction.” See 10X Br. at 30. Moreover, 10X argues, because the monomer solution was carefully designed with particular concentrations of ingredients to form gel beads, the composition is known and does not need to be tested.

The compelling factor here is the distinction between “samples” and “reagents.” The ’664 patent consistently makes clear that a sample is not a reagent, beginning with the opening sentences of the introduction section. See ’664 patent col. 1 ll. 26–31 (“Many biomedical applications rely on high-throughput assays of samples combined with reagents. For example, in research and clinical applications, high-throughput genetic tests using target-specific reagents can provide high-quality information about samples . . . .” (emphases added)). The patent goes on to list definitions that lead to the unavoidable conclusion that a compound cannot simultaneously be a sample and a reagent. For example, within the definition of “sample,” the patent states that “[a] sample is the general subject of interest for a test that analyzes an aspect of the sample, such as an aspect related to at least one analyte that may be present in the sample.” Id. at col. 8 ll. 37–40. Similarly, the term “analyte” is defined as “a component(s) or potential component(s) of a sample that is analyzed in a test.” Id. at col. 9 ll. 1–2. And the term “test” is defined as “a procedure(s) and/or reaction(s) used to characterize a sample, and any signal(s), value(s), data, and/or result(s) obtained from the procedure(s) and/or reaction(s).” Id. at col. 8 ll. 7–9. Thus, the patent describes a relationship between a sample, the analyte(s) it contains, and the test(s) performed to analyze it. In contrast, the patent defines a “reagent” as “a compound, set of compounds, and/or composition that is combined with a sample in order to perform a particular test(s) on the sample.” Id. at col. 9 ll. 19–21 (emphasis added). Thus, a reagent is not a part of a sample, nor is it the same thing as a sample in the context of the patent. The ALJ’s findings reflect a correct determination that, while the term “sample” is defined broadly in the patent, the definition of “sample” is not so broad as to include reagents within its scope.

Becton Dickinson obtains reversal of PTAB in case over US 8,554,579

The outcome:

Becton, Dickinson and Company (“Becton”) appeals a decision from the Patent Trial and Appeal Board (“Board”), determining that certain claims of U.S. Patent No. 8,554,579 (“the ’579 patent”) were not invalid as obvious. We reverse.

BACKGROUND Baxter Corporation Englewood (“Baxter”) is the owner of the ’579 patent, which is directed to “[s]ystems for preparing patient-specific doses and a method for telepharmacy in which data captured while following [a protocol associated with each received drug order and specifying a set of steps to fill the drug order] are provided to a remote site for review and approval by a pharmacist.” ’579 patent,


As an alternative ground to affirm the Board’s determination of non-obviousness, Baxter argues that the Board erred in determining that Alexander is prior art under 35 U.S.C. § 102(e)(2) (pre-AIA).5 This section provides that “[a] person shall be entitled to a patent unless . . . the invention was described in . . . a patent granted on an application for patent by another filed in the United States before the invention by the applicant for patent.” 35 U.S.C. § 102(e)(2).6

Baxter contends that Alexander nonetheless is not prior art because all claims in Alexander (granted on February 12, 2013) were cancelled on February 15, 2018, following inter partes review. Baxter argues that “because the Alexander ‘grant’ had been revoked, it can no longer qualify as a patent ‘granted’ as required for prior art status under Section 102(e)(2).” Appellee’s Br. 35.7 The text of the statute requires only that the patent be “granted,” meaning the “grant[]” has occurred. 35 U.S.C. § 102(e)(2) (pre-AIA). The statute does not require that the patent be currently valid.

A Gilbert Hyatt case on laches

The outcome:

The United States Patent and Trademark Office appeals a judgment of the United States District Court for the District of Columbia. Patent applicant Gilbert P. Hyatt filed an action under 35 U.S.C. § 145 against the Patent and Trademark Office to obtain four patents. The Patent and Trademark Office asserted affirmative defenses of prosecution laches and invalidity for anticipation and lack of written description. The district court first held a trial on prosecution laches and subsequently held trials on anticipation and written description. Following a Rule 52(c) motion at the first trial, the district court decided that the Patent and Trademark Office failed to carry its burden of proving prosecution laches. Following the patentability trials, the district court decided that certain claims were not invalid for anticipation or lack of written description and ordered the Patent and Trademark Office to issue patents as to those claims. We hold that prosecution laches is a defense available to the Patent and Trademark Office in an action to obtain a patent under 35 U.S.C. §145. We further hold that the district court erred in concluding that the Patent and Trademark Office had failed to prove prosecution laches. Accordingly, consistent with the principles of fairness and due process, we vacate and remand the district court’s decision on prosecution laches for further proceedings consistent with this opinion and to provide Hyatt the opportunity to present evidence on that issue. We hold the remainder of the case in abeyance, retaining jurisdiction over the anticipation and written description issues.

The Munchin case on a diaper pail system

Note: Chief Judge Moore assumed the position of Chief Judge on May 22, 2021.

The outcome of the Munchin case was a mixed bag:

Edgewell Personal Care Brands, LLC, and International Refills Company, Ltd. (collectively, Edgewell) sued Munchkin, Inc. in the Central District of California for infringement of claims of U.S. Patent Nos. 8,899,420 and 6,974,029. Edgewell manufactures and sells the Diaper Genie, which is a diaper pail system that has two main components: (i) a pail for collection of soiled diapers; and (ii) a replaceable cassette that is placed inside the pail and forms a wrapper around the soiled diapers. The ’420 patent and the ’029 patent relate to alleged improvements in the cassette design. See, e.g., ’420 patent at 2:18–32; ’029 patent at Abstract. As relevant to this appeal, Edgewell accused Munchkin’s Second and Third Generation refill cassettes, which Munchkin marketed as being compatible with Edgewell’s Diaper Genie-branded diaper pails, of infringement. J.A. 18474.

In February 2019, the district court issued a claim construction order, construing terms of both the ’420 patent and the ’029 patent. Based on those constructions, Edgewell continued to assert literal infringement of the ’420 patent, but only asserted infringement under the doctrine of equivalents for the ’029 patent. Munchkin moved for, and the district court granted, summary judgment of noninfringement of both patents. See Edgewell Personal Care Brands, LLC v. Munchkin, Inc., No. 18-3005-PSG, 2019 WL 7165917 (C.D. Cal. Oct. 16, 2019) (Summary Judgment Decision). Edgewell appeals. We have jurisdiction under 28 U.S.C. § 1295(a)(1). For the reasons discussed below, we vacate-in-part, reverse-in-part, and remand

The topic of claim vitiation arises:

We agree with Edgewell, however, that the district court erred in granting summary judgment of noninfringement of the ’029 patent under the doctrine of equivalents on the basis that the claimed “annular cover” and “tear-off” would be vitiated and rendered meaningless. Summary Judgment Decision, 2019 WL 7165917, at *6. “Under the doctrine of equivalents, an infringement theory . . . fails if it renders a claim limitation inconsequential or ineffective.” Akzo Nobel Coatings, Inc. v. Dow Chem. Co., 811 F.3d 1334, 1342 (Fed. Cir. 2016). This vitiation doctrine ensures the application of the doctrine of equivalents does not “effectively eliminate [a claim] element in its entirety.” Warner-Jenkinson Co., Inc. v. Hilton Davis Chem. Co., 520 U.S. 17, 29 (1997). Claim vitiation is a legal determination that “the evidence is such that no reasonable jury could determine two elements to be equivalent.” Deere & Co. v. Bush Hog, LLC, 703 F.3d 1349, 1356–57 (Fed. Cir. 2012); see also UCB, Inc. v. Watson Labs. Inc., 927 F.3d 1272, 1283 (Fed. Cir. 2019) (Vitiation “is not an exception or threshold determination that forecloses resort to the doctrine of equivalents, but is instead a legal conclusion of a lack of equivalence based on the evidence presented and the theory of equivalence asserted.”). We review de novo a district court’s application of claim vitiation. Lockheed Martin Corp. v. Space Sys./Loral, Inc., 324 F.3d 1308, 1320–21 (Fed. Cir. 2003). Although the district court correctly construed “annular cover” as being a single structure, the district court erred in concluding that Edgewell’s theory of infringement under the doctrine of equivalents vitiates or renders meaningless the “annular cover” claim element. Vitiation has its clearest application “where the accused device contain[s] the antithesis of the claimed structure.” Planet Bingo, LLC v. GameTech Int’l, Inc., 472 F.3d 1338, 1345 (Fed. Cir. 2006). But as we explained in Deere & Co., 703 F.3d at 1356–57, “[c]ourts should be cautious not to shortcut this inquiry by identifying a ‘binary’ choice in which an element is either present or ‘not present.’” See also Cadence Pharms. Inc. v. Exela PharmaSci Inc., 780 F.3d 1364, 1372 (Fed. Cir. 2015) (“The determination of equivalence depends not on labels like ‘vitiation’ and ‘antithesis’ but on the proper assessment of the language of the claimed limitation and the substantiality of whatever relevant differences may exist in the accused structure.”).
Applying these concepts to the facts of this case, we conclude that the district court erred in evaluating this element as a binary choice between a single-component structure and a multi-component structure, rather than evaluating the evidence to determine whether a reasonable juror could find that the accused products perform substantially the same function, in substantially the same way, achieving substantially the same result as the claims. See, e.g., Bio-Rad Labs., Inc. v. 10X Genomics, Inc., 967 F.3d 1353, 1368 (Fed. Cir. 2020) (limiting question of infringement under doctrine of equivalents to a “binary choice between ‘flourinated’ and ‘non-flourinated’ microchannels” was improper where a reasonable juror could have found negligibly-flourinated microchannel performed substantially the same function).

The outcome

Because the district court based its grant of summary judgment of noninfringement of the ’420 patent on an erroneous construction, we vacate that judgment and remand. Because the district court erred in granting Munchkin summary judgment of noninfringement of the ’029 patent, we reverse that judgment and remand.