Friday, July 30, 2021

US at 141.4 covid cases per 100,000 on July 30, 2021

Louisiana leads the nation in new Covid cases per 100,000 population; Wyoming about at the national average (which is 141.4):

Territory 7-Day Case Rate per 100,000

Louisiana 573.3 Florida 481 Arkansas 405.7 Mississippi 346.9 Missouri 296.6 Alabama 264.2 Oklahoma 239.1 Nevada 228.9 Virgin Islands 203.5 Georgia 194.4 South Carolina 176 Kentucky 167.8 Alaska 166.5 Texas 162.6 Tennessee 155 Kansas 152.2 Utah 150.9 Arizona 145 Wyoming 140.7

New Jersey is below the national average:

Virginia 71.3 West Virginia 68.3 New Jersey 64.2 Massachusetts 62.3 Iowa 60.3 Delaware 57.1

79,732 New Cases per day in US.

Dr. Gottlieb on one million caess per day. Dr. Scott Gottlieb estimates up to 1 million Americans infected with Covid daily as delta spreads

Qualcomm wins appeal against Intel

Qualcomm wins its appeal at the CAFC:

Qualcomm Inc. appeals six inter partes review final written decisions from the Patent Trial and Appeal Board determining that claims 1–15, 17–25, and 27–33 of U.S. Patent No. 9,608,675 would have been obvious. We vacate and remand.

Procedural issue:

Qualcomm argues that it was not afforded notice of, or an adequate opportunity to respond to, the Board’s construction of “a plurality of carrier aggregated transmit signals.” It also challenges the Board’s construction of the power tracker limitation for failing to include an algorithm in the corresponding structure.2 We agree the Board violated Qualcomm’s procedural rights with respect to the “plurality of carrier aggregated transmit signals” limitation. We see no error, however, in the Board’s construction of the power tracker limitation in claim 28.
We explained that it “is difficult to imagine either party anticipating that already-interpreted terms were actually moving targets,” and, thus, it is unreasonable to expect parties to “have briefed or argued, in the alternative, hypothetical constructions not asserted by their opponent.” Id. Here, the patent owner agreed with the increased bandwidth requirement proposed by the petitioner. While the Board did not change theories midstream or depart from a construction it previously adopted, it is still difficult to imagine either party anticipating that this agreed-upon matter of claim construction was a moving target. And, unlike with disputed terms, it is unreasonable to expect parties to brief or argue agreed-upon matters of claim construction. This is particularly true here given that a separate agency (the Commission) had already adopted the increased bandwidth requirement for the claim term. Accordingly, under the circumstances of this case, the Board needed to provide notice of and an adequate opportunity to respond to its construction. (...)
Indeed, Qualcomm stated that it would have wanted to introduce extrinsic evidence into the record, including LTE specifications referenced in the specification, to support the increased bandwidth requirement. See ’675 patent at 2:63–67; Oral Argument at 10:40–11:07, http://oralarguments.cafc. Accordingly, the hearing did not provide an adequate opportunity to respond. (...)
We have generally held that a party need not seek rehearing in order to seek relief from a Board decision on appeal. See In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1377 (Fed. Cir. 2016) (“Nowhere does the statute granting parties the right to appeal a final written decision in an IPR require that the party first file a request for rehearing before the Board . . . .”); see also 35 U.S.C. § 141(c) (“A party to an inter partes review . . . who is dissatisfied with the final written decision of the [Board] under section 318(a) . . . may appeal the Board’s decision . . . .”). We have also vacated Board decisions for violating a patent owner’s procedural rights where the patent owner never requested a rehearing. See, e.g., Dell, 818 F.3d at 1301–02 (vacating a Board decision for violating a patent owner’s procedural rights, even though the patent owner did not request rehearing); In re NuVasive, Inc., 841 F.3d 966, 975 (Fed. Cir. 2016) (same). Finally, we “are not free to impose an exhaustion requirement as a rule of judicial administration where the agency action has already become ‘final’” under the APA.4

Thursday, July 22, 2021

Covid increase catches the attention of Washington DC

Further to the "don't panic" cover story in the New York Post on July 21, note the following from the Courier News on July 22, 2021:

Earlier IPBiz post The presence of "variants" in Covid reporting

CAFC concludes PTAB lacked substantial evidence in THE CHEMOURS COMPANY FC, LLC v. DAIKIN INDUSTRIES, LTD.

The background:

Chemours Company FC, LLC, appeals the final written decisions of the Patent Trial and Appeal Board from two inter partes reviews brought by Daikan Industries, Ltd., et al. Chemours argues on appeal that the Board erred in its obviousness factual findings and did not provide adequate support for its analysis of objective indicia of nonobviousness. Chemours also argues that the Board issued its decision in violation of the Appointments Clause because the Board’s decision came after this court’s decision in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320, 1335 (Fed. Cir. 2019), but before this court issued its mandate. Chemours argues that the Board’s decision should be vacated and remanded.1 We decline to vacate and remand this case pursuant to Arthrex. We conclude that the Board’s decision on obviousness is not supported by substantial evidence and that the Board erred in its analysis of objective indicia of nonobviousness. Accordingly, we reverse.

The issue related to motivation to combine in an obviousness rejection:

Chemours argues that the Board’s final written decision on obviousness is erroneous because its factual findings on motivation to combine are unsupported by substantial evidence. Appellant’s Br. 19. Specifically, Chemours argues that Daikin did not meet its burden of proof because it failed to show that a person of ordinary skill in the art (“POSA”) would modify Kaulbach’s polymer to achieve the claimed invention. Id. at 25–31.
The Board’s obviousness findings are not supported by substantial evidence. Although the Board may rely on other prior art to inform itself of the state of the art at the time of the invention, the scope of the relevant prior art is that which is “‘reasonably pertinent to the particular problem with which the inventor was involved.’” Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535 (Fed. Cir. 1983) (quoting In re Wood, 599 F.2d 1032, 1036 (CCPA 1979)). In deciding whether a reference is from a relevant art, it is key to first determine whether the reference is within the inventor’s field of endeavor, and if not, “whether the reference is reasonably pertinent to the particular problem confronting the inventor.” In re GPAC Inc., 57 F.3d 1573, 1578 (Fed. Cir. 1995) (citing Wood, 599 F.2d at 1036). Here, the Board appears to have ignored the express disclosure in Kaulbach that teaches away from the claimed invention and relied on teachings from other references that were not concerned with the particular problems Kaulbach sought to solve. In other words, the Board did not adequately grapple with why a skilled artisan would find it obvious to increase Kaulbach’s melt flow rate to the claimed range while retaining its critical “very narrow molecular-weight distribution.” Kaulbach col. 3 ll. 34–35, 59–65

Blocking patents are mentioned:

A blocking patent is an earlier patent that prevents practice of a later invention—the invention of the patentin-dispute. See Acorda Therapeutics, Inc. v. Roxane Labs., Inc., 903 F.3d 1310, 1337 (Fed. Cir. 2018) (“A patent has been called a ‘blocking patent’ where practice of a later invention would infringe the earlier patent.”); Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 740 (Fed. Cir. 2013); Prima Tek II, LLC v. A-Roo Co., 222 F.3d 1372, 1379 (Fed. Cir. 2000).

The Board erred by misapplying the “blocking patents” doctrine to the challenged patents themselves. A blocking patent is one that is in place before the claimed invention because “such a blocking patent may deter non-owners and non-licensees from investing the resources needed to make, develop, and market such a later, ‘blocked’ invention.’” Accorda, 903 F.3d at 1337. However, the challenged patent, which covers the claimed invention at issue, cannot act as a blocking patent. Accordingly, we reverse the Board as to these findings.

Wednesday, July 21, 2021

The presence of "variants" in Covid reporting

The cover of the NY Post on July 21, 2021 suggests "don't panic" because, among other things, Covid hospitalizations are down:

Elsewhere, the news on the number of Covid hospitalizations is not so much in a cautiosly upbeat mood. In New Jersey, there is a masking debate, as covered by the Newark Star-Ledger on July 21

Tuesday, July 20, 2021

The CAFC vacates the PTAB decision in IN RE: VICTOR KIRILICHIN

Within the decision:

Appellants’ teaching-away arguments are relevant to whether it would have been obvious to a person of ordinary skill to modify Rothstein with the preassembly features disclosed in Lee to arrive at the claimed invention. On appeal to us, Appellants argue, for example, that Lee “explicitly disparage[s] pre-assembly of prior art plugs employing cylindrical sleeves as impractical and unworkable,” Reply Br. 7 (citing Lee at col. 1 ll. 12–27, col. 2 ll. 21–25), and that Lee therefore “teaches away from combining [pre-assembly] with a cylindrical device, the very type of device used by Rothstein and required in Appellants’ claims,” Reply Br. 8. Appellants likewise raised this issue in the proceedings below. See, e.g., J.A. 503 (Appellants arguing that Lee “clearly and explicitly tells the skilled artisan that pre-assembly is not practical in situations where the outer surface of the insert is cylindrical”).

We are unable to discern the agency’s basis for rejecting Appellants’ teaching-away arguments (or whether the issue was addressed at all). The Director seems to suggest that the Board resolved this issue by finding “that the claimed invention, Rothstein, and Lee all employ tapering.” Appellee’s Br. 10; see Board Decision, 2020 WL 5231917, at *4 (reasoning that Appellants’ arguments regarding the “tapering” of Lee’s components were unpersuasive because “Rothstein[’s], Lee[’s], and Appellant[s’] devices all rely on tapering”). We disagree that the Board (or the examiner) sufficiently addressed Appellants’ teaching-away arguments. First, the examiner’s findings with respect to Lee were limited to general preassembly by press fitting—the examiner stated that “the only teaching . . . gleaned from the disclosure of Lee is that it is known to be advantageous to press fittingly pre-assemble two components of a sealing insert.” J.A. 526 (emphasis in original). Second, the Board’s decision makes no mention of teaching away, and the Board’s generic statement that each of the three devices relies on tapering falls short of “setting out [the Board’s] reasoning in sufficient detail to permit meaningful appellate review” of the teaching-away issue. See Power Integrations, Inc. v. Lee, 797 F.3d 1318, 1327 (Fed. Cir. 2015). And “whether a reference teaches away from the claimed invention” is a “question[] of fact,” Meiresonne v. Google, Inc., 849 F.3d 1379, 1382 (Fed. Cir. 2017), that is not for us to decide in the first instance in this appeal, contrary to the Director’s suggestion that we do so, see Appellee’s Br. 16–18 (arguing for a finding that Lee “does not teach away”).

Appellants raise additional challenges to the Board’s decision, but these challenges may arguably overlap with the teaching-away issue discussed herein. Accordingly, we do not reach the remaining issues raised on appeal at this time.

In sum, we are unable to meaningfully assess whether the Board’s determination of obviousness in this case is supported by substantial evidence. We therefore vacate the Board’s decision and remand the case for further proceedings consistent with this opinion.

Do the results from voluntary Covid testing reveal the actual impact of the delta variant? Probably not.

Dr. Scott Gottlieb, former FDA Commissioner and frequent commenter on "Face the Nation," observed on SquawkBox:

"We don't know what the denominator is right now," Gottlieb said in an interview on "Squawk Box." "I think we're vastly underestimating the level of delta spread right now because I think people who are vaccinated, who might develop some mild symptoms or might develop a breakthrough case, by and large are not going out and getting tested. If you've been vaccinated and you develop a mild cold right now, you don't think you have Covid."


Gottlieb re-enforced his observations on "Face the Nation" on Sunday, 18 July 2021:

Even as the number of coronavirus cases spikes, Gottlieb said the U.S. is likely undercounting infections, as Americans who are younger and healthier, or those who are asymptomatic or have mild cases, may not get tested for COVID-19. "We're not doing a lot of routine screening right now," he said. "Unless you work for the New York Yankees, you're not getting tested on a regular basis. So I think that this Delta wave could be far more advanced than what we're detecting right now in our ascertainment." Gottlieb estimated the U.S. is picking up roughly 1-in-10 or 1-in-20 infections, and those who get tested for COVID-19 are either sicker or have "telltale" symptoms of the coronavirus, such as loss of taste or smell.

[In the limited population of the New York Yankee organization, there were at least three "breakthrough" cases: While Loaisiga, Cortes and Peralta are all vaccinated and have breakthrough cases, per Cashman] [In the Clear Creek Texas event, Health officials in Galveston County said six of the people who tested positive were fully vaccinated.] [In the Democrat Texas legislature event, Three of the 60 Texas House Democrats tested positive for the virus while staying in Washington, D.C., according to Texas House Democratic Caucus leadership. The number later increased to five or possibly six. See]

Yet on July 20, 2021, days after Gottlieb was sounding the alarm, the Courier News ran an uncritical "feel good" story:

Friday, July 16, 2021

CAFC discusses written description in Flashcontrol, LLC

On written description:

“The essence of the written description requirement is that a patent applicant, as part of the bargain with the public, must describe his or her invention so that the public will know what it is and that he or she has truly made the claimed invention.” AbbVie Deutschland GmbH & Co. v. Janssen Biotech, Inc., 759 F.3d 1285, 1298 (Fed. Cir. 2014). “To satisfy the written description requirement, the applicant must convey with reasonable clarity to those skilled in the art that, as of the filing date sought, he or she was in possession of the invention, and demonstrate that by disclosure in the specification of the patent.” Centocor Ortho Biotech, Inc. v. Abbott Labs., 636 F.3d 1341, 1348 (Fed. Cir. 2011) (internal quotations omitted). While the written description requirement does not require that the specification recite the claimed invention in any particular way, pointing to an “amalgam of disclosures” from which an artisan could have created the claimed invention does not satisfy this requirement. Novozymes A/S v. DuPont Nutrition Biosciences APS, 723 F.3d 1336, 1349 (Fed. Cir. 2013); accord Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010). Instead, the specification must present each claim as an “integrated whole.” Novozymes, 723 F.3d at 1349. Whether the written description adequately supports a patent claim is a question of fact. Vasudevan Software v. MicroStrategy, Inc., 782 F.3d 671, 682 (Fed. Cir. 2015).

Of some specific issues

Flash-Control repeatedly asserts that the district court “sid[ed] with Intel” and improperly viewed the evidence in the light most favorable to Intel. See, e.g., Appellant’s Br. 14. But Flash-Control does not explain what specific reasonable inferences that court failed to draw in its favor, and we find none in the district court’s decision. Viewing the evidence in the light most favorable to Flash-Control, we agree with the district court that Flash-Control has failed to identify any disclosure that “shows a second buffer that can store a write request,” as required by step 3, or “the writing of a portion of a page to volatile memory,” as required by step 2. Decision at *4. While Figures 6 and 9 of the ’880 patent show one or two buffers being paired with “NAND memory” (a type of nonvolatile memory) there is nothing in the figures or text description of the figures to indicate whether those buffers act as the second buffer— i.e., whether they can store a write request to modify a portion of a page as required by step 3. J.A. 514–16 ⁋ 60. FlashControl’s arguments concerning Figures 3 and 12 of the ’880 patent similarly point to items that could, with more, be the second buffer but fail to point to anything specifying that those items perform the second step of the claim. The specification language referring to two “new commands”— “[r]ead byte out of page” and “[w]rite byte out of page”— comes the closest to supporting the claimed technique of operating on a portion of a page as required by step 2. ’880 patent 4:30–36. But the specification never elaborates on these “new commands” and does not indicate whether they interact with any buffer or volatile memory.

A court drawing on its own knowledge is legal error

Flash-Control also argues that the district court engaged in improper factfinding by stepping into the role of an artisan in its analysis of what an artisan would understand about the specification. Appellant’s Br. 26–28. The district court stated that it drew upon its own knowledge in its opinion, and while that would ordinarily constitute legal error, here the district court did so only after finding that Flash-Control had failed to show a triable issue of fact as to written description on the evidence of record. Decision at *8 n.1. The district court expressly drew on its own knowledge only in order to expound upon additional reasons for rejecting Flash-Control’s arguments. Although the better course would have been to omit that additional reasoning, the court’s separate findings made under the proper summary judgment standard are sufficient to support the judgment. And because we review judgments, not opinions, Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1540 (Fed. Cir. 1983), and the judgment in this case was based upon the evidence of record, we conclude that the inclusion of that additional reasoning was not reversible error

Wednesday, July 14, 2021

Arkansas leading the nation in new Covid infections per 100,000 on 14 July 2021

The "worst" states for new covid infections on July 14, 2021

Arkansas 227.1
Missouri 183.8
Florida 168.8
Nevada 145.8 Louisiana 136.1 Utah 106.9 Oklahoma 87.9 Alabama 75.5 Mississippi 64.2 Kansas 59.8 Arizona 54.9 Idaho 49.3 Alaska 43.3

Data Table for Cumulative Cases per 100k in Last 7 Days CDC | Data as of: July 14, 2021 1:57 PM ET. Posted: July 14, 2021 3:38 PM ET link:

NBC Nightly News led with:
The Delta variant makes up more than half of new Covid cases

CAFC reviews D.N.J. on ticks and confidentiality agreements; plaintiff wins on misappropriation but loses on infringement

The background of the opinion describes the rather complex set of issues:

We describe the facts in the light most favorable to the party that won the jury verdict (here, the plaintiffs). Marni Markell Hurwitz (“Ms. Markell”) is an inventor who does not manufacture her own products but presents her ideas to companies for them to manufacture and sell. I Did It, Inc. and its d/b/a entity Nite Glow are the companies through which Ms. Markell does business. Defendant Central is a distributor and manufacturer of pet and garden products, including flea and tick products. Defendant Four Paws, a subsidiary of Central, sells products for cats and dogs. In May 2009, Ms. Markell met with the then-president (Allen Simon) and other representatives of Four Paws to share her idea for an applicator for the administration of flea and tick medicine directly to an animal’s skin. At the beginning of the meeting, Ms. Markell and Mr. Simon entered into a confidentiality agreement governed by New Jersey law and dated May 5, 2009, with Ms. Markell identified as the “Owner” of the confidential information and Mr. Simon as president of Four Paws identified as the “Recipient.”1 J.A. 20,899. Ms. Markell then presented her idea for the applicator, including drawings and a prototype. Ms. Markell testified at trial that Mr. Simon and other representatives of Four Paws were “very excited” by her presentation. Id. at 14,349. Mr. Simon instructed his assistant to send Ms. Markell’s presentation materials to Central’s then-head of Life Sciences, Rick Blomquist. Ms. Markell and Mr. Blomquist discussed Ms. Markell’s idea and materials in telephone conversations over a period of approximately five months. On November 18, 2009, Mr. Blomquist emailed Ms. Markell about a future meeting in Atlanta to discuss Ms. Markell’s applicator idea, but Mr. Blomquist cancelled the meeting. The parties did not enter into a licensing agreement for Ms. Markell’s applicator idea. Meanwhile, Central had pursued a project called Project Speed, which began in spring of 2009 and ultimately focused on designing a new applicator. There was a kickoff meeting for the project in November 2009 that focused on “a treatment dispensing system” with long-term focus on “potential solutions for spot on application.” Id. at 22,940. Mr. Blomquist participated in Project Speed, including by attending a two-day brainstorming session in February 2010. The project resulted in the selection of a new applicator design by August 2010.
In parallel with her discussions with defendants, Ms. Markell had applied for a patent for her applicator idea. On October 2, 2008, Ms. Markell filed the application that led to the ’445 patent. The patent application was published on April 8, 2010, thereby disclosing Ms. Markell’s applicator to the public. The ’445 patent was granted on November 15, 2011.

On the misappropriation claim

Defendants first argue that plaintiffs should not have been allowed to present the misappropriation of idea claim to the jury as a matter of law because of the economic loss doctrine. Many courts recognize some form of an economic loss doctrine. The Restatement (Third) of Torts’s formulation of the economic loss doctrine is that, generally, “there is no liability in tort for economic loss caused by negligence in the performance or negotiation of a contract between the parties.” Restatement (Third) of Torts: Liab. for Econ. Harm § 3 (Am. L. Inst. 2020).
New Jersey’s version of the economic loss doctrine likewise bars tort recovery under certain circumstances where the parties have entered into an express contract. The scope of the doctrine is unclear, and the Third Circuit has described the area of law as a “morass.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 144 (3d Cir. 2001), abrogated on other grounds by Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l Union of Operating Engineers & Participating Emps., 571 U.S. 177 (2014).2
To understand the defendants’ arguments, a brief explanation of the legal basis of a misappropriation of idea claim is necessary. The leading New Jersey case is Flemming v. Ronson Corporation, 258 A.2d 153 (N.J. Super. Ct. Law Div. 1969), aff’d, 275 A.2d 759 (N.J. Super. Ct. App. Div. 1971) (mem.), which recognized that where a person communicates a novel idea to another with the intention that the latter may use the idea and compensate him for such use, the other party is liable for such use and must pay compensation if he actually appropriates the idea and employs it in connection with his own activities.
Id. at 156–57. “A plaintiff is required to establish as a prerequisite to relief that (1) the idea was novel[,] (2) it was made in confidence, and (3) it was adopted and made use of.” Id. at 157
We conclude that the New Jersey Supreme Court would follow the Restatements and not bar the misappropriation of idea claim under the economic loss rule where there is a confidentiality agreement protecting the idea.

Relating to the publication of a patent application

Defendants further argue that the district court erred in denying defendants’ Rule 50(b) motion on the misappropriation claim because any purported use of Ms. Markell’s idea (the third element of a misappropriation of idea claim) “did not happen until well after that design was disclosed to the public,” Defs.’ Opening Br. 48, at which point the idea was no longer protected (discussed further below). The district court determined that “there [was] ample record evidence from which the jury could rationally conclude that defendants made use of [Ms. Markell’s] idea, and that they did so before the publication of plaintiffs’ patent application.” J.A. 21–22
As the district court summarized, there was evidence at trial showing that, before the patent application become public, Ms. Markell had presented her applicator idea to Four Paws’ then-president and vice president, who reacted with enthusiasm; that Four Paws’ president had Ms. Markell’s presentation materials sent to Central’s Rick Blomquist; that Mr. Blomquist had received the materials and talked with Ms. Markell about them over the telephone; that Mr. Blomquist was involved with Central’s project to develop the accused products, Project Speed, and called himself a “champion and facilitator” for Central on the project, id. at 20,981; and that defendants’ efforts to improve delivery methods for their tick and flea products “did not bear fruit until 2009 into 2010—temporally, after [Ms.] Markell left her materials with [Mr.] Simon and they were sent to [Mr.] Blomquist,” id. at 22–23.

We conclude that there is ample evidence from which a jury reasonably could find liability, and the district did not err in denying judgment as a matter of law on this ground.

Of affirmative defenses

Defendants would only bear the burden of proof if headstart damages were an affirmative defense. Courts have recognized that defenses that are denials of “matters that must be proven by [the plaintiff] at trial” are distinct from “affirmative defenses upon which [the defendant] has the burden of proof.” See 5 Charles Alan Wright et al., Federal Practice and Procedure § 1278 (3d ed. 2021) (quoting Dynasty Apparel Indus. Inc. v. Rentz, 206 F.R.D. 603, 607 (S.D. Ohio 2002)) (alterations in original); see also id. § 1270 (denials or negative defenses are distinct from affirmative defenses). Determination of head start damages was part of plaintiffs’ burden of proof, not an affirmative defense as to which defendants would bear the burden of proof. See, e.g., Reichert v. Vegholm, 840 A.2d 942, 945 (N.J. Super. Ct. App. Div. 2004) (“[T]he general rule is that ‘the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff.’”) (quoting Restatement (Second) of Torts, § 433B(1) (Am. L. Inst. 1965))
Although it was plaintiffs’ burden to prove damages arising from the misappropriation of Ms. Markell’s idea,13 plaintiffs made no effort to tie their damages case to the advantage defendants would have received from a head start resulting from the misappropriation. The time period of the sales plaintiffs relied on to establish disgorgement of defendants’ profits was from March 22, 2012, after defendants’ accused products launched (almost two years after Ms. Markell’s idea became public in April 2010), through May 31, 2018, more than eight years after Ms. Markell’s idea became public. There is no showing that this lengthy period was an appropriate measure of a head-start period. Plaintiffs indeed concede in their briefing that neither party in this case “presented evidence and argument at trial regarding ‘head start’ calculations.” Pls.’ Br. 46. Nevertheless, plaintiffs suggest that “[t]he jury’s $11 million dollar figure might well have been calculated by taking Central’s total profit and adjusting downward to account for the head-start period.” Id. at 48. Here, plaintiffs provided no evidence of a head-start period, and “it may not be presumed that the jury found facts on which there is no evidence.” Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 767–68 (Fed. Cir. 1988). We conclude that, as a matter of law, plaintiffs are limited to head-start damages and did not provide evidence that would support the damages award of over $11 million. We reverse the district court’s denial of defendants’ motion for a new damages trial, vacate the jury award of damages for misappropriation, and remand for a new trial of damages for misappropriation, which damages must be attributable to the head-start period

Patent infringement

Lastly, we address plaintiffs’ cross-appeal of the district court’s judgment of non-infringement of claim 1 of the ’445 patent as a matter of law. Claim 1 requires that the chamber of the claimed applicator’s base be made of rubber. See ’445 patent, col. 9 ll. 35–42. The district court determined that plaintiffs had disavowed plastic from the scope of the claim. Plaintiffs contend that there was no disavowal or, in the alternative, that the scope of the disavowal was not as to all plastics

“[W]hen the patentee unequivocally and unambiguously disavows a certain meaning to obtain a patent, the doctrine of prosecution history disclaimer narrows the meaning of the claim consistent with the scope of the claim surrendered.” Biogen Idec, Inc. v. GlaxoSmithKline LLC, 713 F.3d 1090, 1095 (Fed. Cir. 2013). Here, the district court’s interpretation of the prosecution history involves only intrinsic evidence (and we find the plaintiffs’ extrinsic evidence irrelevant). See Phillips v. AWH Corp., 415 F.3d 1303, 1317 (Fed. Cir. 2005) (en banc). The district court’s determination of disclaimer is therefore subject to de novo review. See Teva Pharms. USA, Inc. v. Sandoz, Inc., 574 U.S. 318, 331 (2015). We agree with the district court that plaintiffs disavowed plastic in restricting the “flexible deformable material” of the applicator base’s chamber to rubber. As submitted to the Patent and Trademark Office, original independent claim 1 claimed “[a] direct delivery applicator for delivering a solution to an animal’s skin,” and original claim 3 claimed, as relevant here, “[a] direct delivery applicator as recited by claim 1, wherein said chamber of said applicator base is composed of a flexible deformable material so that said chamber can be squeezed.” J.A. 1537–38 (emphasis added). Original claims 1 and 3 were rejected by the examiner as obvious over U.S. Patent No. 7,000,618 (“Dovergne”) and U.S. Patent No. 5,183,006 (“Robinson”). Dovergne disclosed an applicator base with a chamber made of “a flexible deformable material.” J.A. 1494.

Tuesday, July 13, 2021

"Sign of the Times," revisited in 2021

Back in the 1960s, Petula Clark premiered her song "Sign of the Times" on the Ed Sullivan Show, with three nice red cars as props.

Fast forward to 2021, and a visit to a car dealer produced a "showroom" with no cars at all.

Petula's cars-->

Car showroom in 2021-->

Saturday, July 10, 2021

Missouri and Arkansas lead the pack in covid cases per 100,000 people on July 10, 2021

The list of the "worst" states for infections per 100,000 people:

Missouri 165.4 Arkansas 161.7 Florida 110.6 Louisiana 107.5 Virgin Islands 98.4 Wyoming 90 Utah 89.4 Kansas 66 Arizona 54.4 Mississippi 47.1 Alabama 46.8 Alaska 42.8 American Samoa N/A Nevada 107.4 Oklahoma 61.7 Texas 38.9 Idaho 36.9 Georgia 36.5 Indiana 34.7 Washington 34.4 Montana 34.3 Tennessee 34.3 South Carolina 32.6 Colorado 32.4

Data as of: July 10, 2021 12:26 PM ET. Posted: July 10, 2021 1:46 PM ET

7-Day Case Rate per 100,000
Data Table for Cumulative Cases per 100k in Last 7 Days


Thursday, July 08, 2021

CAFC grants mandamus in Uber case from WD Texas

the conclusion:

In this case, we see no basis for a disposition different from the ones reached in Samsung. The district court here [WD Texas] relied on the same improper grounds as in Samsung to diminish the clear convenience of the Northern District of California. The reasons for not finding judicial economy considerations to override the clear convenience of the transferee venue also apply with even more force here. Though the district court in this case relied on the co-pending case against Lyft, Inc. as well as Bumble, both of those litigations involve entirely different underlying functionality and the Samsung Electronics Co., Ltd. et al. and LG Electronics Inc. et al. litigations have now been directed to be transferred to Northern California. In addition, the district court clearly erred in negating the transferee venue’s strong local interest by relying merely on the fact that plaintiffs alleged infringement in the Western District of Texas.

The petition for a writ of mandamus is granted. The district court’s May 26, 2021 order denying transfer is vacated, and the district court is directed to grant Uber’s motion to the extent that the case is transferred to the United States District Court for the Northern District of California under 28 U.S.C. § 1404(a).

Sunday, July 04, 2021

Scott Gottlieb on "Face the Nation" on July 4, 2021

Of the delta variant of Covid:

And when it comes to the Delta variant, which is now raging across many western and southern states, how many more Americans could be affected by that and how soon? SCOTT GOTTLIEB: I think given how transmissible this variant is it's likely to infect about eighty-five percent of the population or what-- what I mean to say is eighty-five percent of the population is going to end up with some level of immunity to coronavirus. We now have our choice in terms of how we acquire that immunity. You can acquire it through vaccination or you're going to end up acquiring it through natural infection. I think people who choose to acquire it through natural infection may end up acquiring it more than once. But given how transmissible this is it's probably going to infect or leave eighty-five percent of the population with immunity before it starts circulating with this level of velocity. We now have about fifty-five percent of the population with at least one dose of-- of vaccine in them. So it leaves a lot of people who are going to be vulnerable to this infection. We've probably infected about a third of the population. So some complement of the people who have chosen to remain unvaccinated have been previously infected with the virus. But there's still a lot of vulnerable Americans when you talk about absolute numbers of people.
Of "mission accomplished"

Would it be wise to be declaring independence from the pandemic right now? SCOTT GOTTLIEB: Well, look, I wouldn't be declaring mission accomplished. I think this is going to be a long fight, but I think we have had a near term victory against the virus in terms of getting immunity into the population through vaccination. And-- and virus levels are much lower than they were certainly last summer and they are likely to remain low. I think you're seeing a decoupling between cases and hospitalizations and deaths because there's so much immunity in the population, not just through vaccination, but also through prior infection, people who have acquired immunity from prior infection. But this is likely to become an endemic virus. We're going to have to deal with it. It's likely to be on par with the second circulating flu this winter. At-- at best, it's going to be on par with the second circulating flu. It could be a little bit worse. And I think we're going to need to think differently about respiratory pathogens generally in the wintertime and be more vigilant about the spread of diseases like flu and like coronavirus.

Of Governor Brown of Oregon

So, for example, of the families that lost homes in southern Oregon last Labor Day fire, several hundred of them were undocumented. FEMA does not provide aid or assistance to these families. It is absolutely unacceptable. These families are so much a part of our communities. They're the heart and soul of our culture and they are the backbone of our economy. They deserve the assistance and they need it.

Separately, it is worthwhile to listen to the AUDIO of the following (especially as to "harbinger"):

KATE BROWN: Absolutely, we have. There's no question. I think the concern, Ed, is that this is a harbinger of things to come. We literally have had four emergency declarations in this state at the federal level since April of 2020. In Labor Day last year we had horrific wildfires. They were historic. We lost over a million acres, over four thousand homes and nine lives. And what is really, really clear, that just like we saw during the pandemic, throughout these emergency events our communities of color, our low-income families are disproportionately impacted. And we have to center the voices of Black and brown and indigenous people at the forefront of our work as we do emergency preparedness.

On delta from BusinessInsider

The Delta variant continues to spread across the country, as millions of people plan to gather with family and friends to celebrate the Fourth of July [2021] Five states are particularly vulnerable to the Delta variant. Those states are Arkansas, Colorado, Missouri, Nevada, and Utah.

[Of delta plus] The Nevada State Public Health Laboratory said it detected the Delta plus variant in Clark County, which is "really just the delta variant with an additional spike mutation that is seen in other variants of concern," said Mark Pandori, director of the lab at the University of Nevada, Reno, School of Medicine.

Friday, July 02, 2021

Covid cases and vaccinations as of July 2, 2021

The CDC data of July 2, 2021 shows the "worst" states for Covid:

Nevada 111.8 Missouri 107.5 Arkansas 103.8 Wyoming 87.4 Utah 83.3 Louisiana 58.6 Virgin Islands 57.3 Arizona 50.8 Mississippi 45.3 Oklahoma 39.8 Colorado 39.4 Alabama 34 Washington 33.9 Montana 32.8 Kansas 32.5 Texas 31.7 Oregon 30.3 Indiana 28.6 Idaho 26.9 Alaska 24.7 American Samoa N/A Florida 59.9 [sic: 59.9 ??????]

7 day case rate per 100,000 population Data as of: July 2, 2021 12:25 PM ET. Posted: July 2, 2021 1:35 PM ET link:

As of July 2, 2021, the CDC reports 156,255,896 Americans fully vaccinated, which corresponds to 47.1% of the propulation.

Of the over 18s, 149,404,857 (57.9% ) are fully vaccinated.

Of the over 65s, the CDC reports 42,889,958 ( 78.4% ) fully vaccinated.


MEANWHILE, in Somerset County, New Jersey:

Pennsylvania v. Cosby and "promissory estoppel"

Incoming 1L's in my section of the University of Chicago Law School spent the better part of "Elements" learning about "promissory estoppel" drom Dennis Hutchinson. We studied a few obscure New York state cases and learned that they were little cited in later years.

Fast forward to the year 2021, with Commonwealth of Pennsylvania v. Cosby, [No. 39 MAP 2020 ] and we see a case about detrimental, reasonable reliance on promises made by a prosecutor to a [then-potential] criminal defendant, Bill Cosby. The majority decision is an interesting read, and includes text snippets:

Interactions between a prosecutor and a criminal defendant, including circumstances where the latter seeks enforcement of some promise or assurance made by the former, are not immune from the dictates of due process and fundamental fairness. The contours and attendant obligations of such interactions also can involve basic precepts of contract law, which inform the due process inquiry. The applicability of contract law to aspects of the criminal law has been recognized by the Supreme Court of the United States, see Puckett v. United States, 556 U.S. 129, 137 (2009), by the United States Court of Appeals for the Third Circuit, see McKeever v. Warden SCI-Graterford, 486 F.3d 81, 86 (3d Cir. 2007), and by this Court. See Commonwealth v. Martinez, 147 A.3d 517, 531 (Pa. 2016). In order to succeed on a claim of promissory estoppel, the aggrieved party must prove that: (1) the promisor acted in a manner that he or she should have reasonably expected to induce the other party into taking (or not taking) certain action; (2) the aggrieved party actually took such action; and (3) an injustice would result if the assurance that induced the action was not enforced. See Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000). (...) Considered together, these authorities obligate courts to hold prosecutors to their word, to enforce promises, to ensure that defendants’ decisions are made with a full understanding of the circumstances, and to prevent fraudulent inducements of waivers of one or more constitutional rights. Prosecutors can be bound by their assurances or decisions under principles of contract law or by application of the fundamental fairness considerations that inform and undergird the due process of law. The law is clear that, based upon their unique role in the criminal justice system, prosecutors generally are bound by their assurances, particularly when defendants rely to their detriment upon those guarantees. (...) An entirely different situation arises when the decision not to prosecute is unconditional, is presented as absolute and final, or is announced in such a way that it induces the defendant to act in reliance thereupon. When a non-prosecution decision is conveyed in such a way, and when a defendant, having no indication to the contrary, detrimentally relies upon that decision, due process may warrant preclusion of the prosecution. Numerous state and federal courts have found that a defendant’s detrimental reliance upon the government’s assurances during the plea bargaining phase both implicates his due process rights and entitles him to enforcement even of unconsummated agreements. The cases are legion.23 (...) We are left with no doubt that Cosby relied to his detriment upon the district attorney’s decision not to prosecute him. The question then becomes whether that reliance was reasonable. Unreasonable reliance warrants no legal remedy. (...) For these reasons, Cosby’s convictions and judgment of sentence are vacated, and he is discharged.

A link to the majority opinion:

The link to this IPBiz post was forwarded to Professor Hutchinson.

Thursday, July 01, 2021

Mixed decision in CAFC review of IPR of Pulse patent . 6,773,302

The outcome was mixed:

Patent owner Pulse Electronics, Inc. (“Pulse”) appeals the final written decision by the Patent Trial and Appeal Board (“Board”) in an inter partes review proceeding. Petitioner U.D. Electronic Corp. (“UDE”) cross-appeals. We affirm in part and reverse in part.

One argument on claim construction

Pulse further argues that the internal structure of the connector requires the conductors to bend approximately 90 degrees. Pulse, however, has not demonstrated that the Board’s construction would render the device inoperable. See Power Integrations, Inc. v. Fairchild Semiconductor Int’l, Inc., 904 F.3d 965, 972 (Fed. Cir. 2018) (citing Ecolab, Inc. v. FMC Corp., 569 F.3d 1335, 1345 (Fed. Cir. 2009)) (noting impermissibility of an inoperable claim construction when the term admits of an operable construction). This argument therefore does not demonstrate that the Board’s claim construction was erroneous.

And no problem on PTAB's obviousness analysis

Pulse next argues that the Board erred in finding claims 6–8 obvious over two prior art references. We see no error in the Board’s determination.

As to indefiniteness

“Indefiniteness, as a subset of claim construction, is a question of law which this court reviews without deference.” Id. at 1311 (citing Kinetic Concepts, Inc. v. Blue Sky Med. Grp., Inc., 554 F.3d 1010, 1022 (Fed. Cir. 2009)). The Board erred in finding that the term “a desired effect” renders substitute claims 17, 20, and 21 indefinite. The “desired effect” has a clear objective meaning: that the conductors curve or change direction by approximately 90 degrees. No “speculation” is necessary to understand “the desired effect”; the term is merely an instance of inartful surplusage rather than a fatal ambiguity. While we generally disfavor claim constructions resulting in surplus language, we have also recognized that “surplusage may exist in some claims.” ERBE Elektromedizin GmbH v. Canady Tech. LLC, 629 F.3d 1278, 1286 (Fed. Cir. 2010) (citing Pickholtz v. Rainbow Tech., Inc., 284 F.3d 1365, 1373 (Fed. Cir. 2002) (concluding that the word “system” was surplusage when the patent at issue used “computer” and “computer system” interchangeably with no indication of a difference in meaning)). Because the “desired effect” is objectively restricted to curvature “near or equal to 90 degrees,” see J.A. 60, substitute claims 17, 20, and 21 are not indefinite. The Board’s determination to the contrary is reversed.

Of interest as to combination of references

UDE also argues that the Board’s finding that substitute claims 22 and 23 are not obvious over the combination of Kan and Hughes is inconsistent with its finding that this combination renders claims 6–8 obvious. With respect to claims 6–8, however, the Board was discussing a different aspect the prior art—finding a motivation to reorient Kan’s internal circuit board in view of Hughes. The fact that the references could be combined for one purpose does not require that they would necessarily be combined for another purpose.