Gibbons Law Alert

Gibbons Law Alert

Author: Robert E. Rudnick

Patent Law Bill to Rein in Litigation Abuses . . . (No really)!

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Posted in Patent

On October 31, 2013

Last week, House Judiciary Committee Chairman Bob Goodlatte (R-VA) introduced H.R. 3309, entitled “Innovation Act,” a 51-page bill proposing a number of significant amendments to the Patent Act (Title 35 U.S.C.). We reported last month on an earlier proposed draft of this bill. As we noted last month, among the more noteworthy provisions of the bill is a proposed new 35 U.S.C. § 281A, which heightens the pleading requirements for patent cases. Specifically, the proposed new section mandates providing detailed information about the patents alleged to be infringed, identifying each accused product/process, and providing information with “detailed specificity” regarding how the product infringes. This provision also sets forth that, for any required information not disclosed, the plaintiff must establish why such undisclosed information was not readily accessible, and the efforts made by such party to access it.

The Texas Two Step, A Tale of Two Texas District Courts’ Differing Views Concerning Stay Requests Pending Inter Partes Review

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Posted in Patent

On August 16, 2013

The District Courts for the Southern and Western Districts of Texas appear to have taken different positions with regard to estoppel in an inter partes review (“IPR”) context, in e-Watch v. FLIR Systems, Case No. 4-13-00638 (S.D. Texas) and e-Watch v. ACTi Corp., Case No. 5-12-cv-00695, (W.D. Texas), respectively. The apparent split arose when the courts were confronted with motions to stay their respective patent infringement lawsuits pending disposition of a petition for IPR brought by another defendant in a related patent lawsuit, e-Watch v. Mobotix Corp., Case No. 5-12-cv-00492, (W.D. Texas). Interestingly, the petition for IPR has not yet been decided by the Patent Trial and Appeal Board (PTAB) of the U.S. Patent & Trademark Office.

Third Circuit District Courts Take Aim at Non-Patent Eligible Patents Under § 101

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Posted in Patent

On August 8, 2013

In a pair of recent decisions issued just days apart, the District of Delaware and the District of New Jersey have found patents relating to online transaction guaranties and financial services to be non-patent eligible pursuant to 35 U.S.C. § 101. Practitioners may wish to take heed …. In buySafe, Inc. v. Google, Inc., C.A. No. 11-1282-LPS, Dkt. 69 (D. Del. July 29, 2013) (Stark, J.), buySafe asserted its online transaction guaranty patent, and Google moved for judgment on the pleadings pursuant to Rule 12(c). Ultimately, Judge Stark of the Delaware District Court granted defendant’s motion on the grounds that the patent-in-suit was invalid under 35 U.S.C. § 101 because it is directed to non-patent-eligible subject matter. In so ruling, the Court noted that on the face of the patent, it described that the entire inventive process could be performed by a human.

The USPTO Launches the Global Patent Search Network

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Posted in Patent

On July 22, 2013

On July 8, Teresa Stanek Rea, Acting Director of the United States Patent and Trademark Office (“USPTO”), announced on her official blog the launch of the Global Patent Search Network (“GPSN”). The GPSN is the result of a cooperative effort between the USPTO and China’s State Intellectual Property Office (“SIPO”). Users of the GPSN will be able to search full text Chinese patent documents and English machine translations, thus enabling searches in both English and Chinese. The initial database of documents will include published applications, granted patents, and utility models dated from 2008 to 2011. The database will be periodically updated. In addition, the USPTO anticipates the network will expand to include patent documentation from other foreign intellectual property offices.

Whither or Wither the A/C Privilege?

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Posted in Patent

On July 15, 2013

The attorney-client privilege is one of the most sacrosanct and inviolable, allowing full and frank dialogue between client and counsel. The recent decision in BSP Software LLC v. Motio, Inc., 1-12-cv-02100 (ND Ill. July 9, 2013) DN 141, Order has broad implications for this well-established privilege, and important lessons-learned for when it might be waived.

High Court Seeks Government Input on Akamai v. Limelight

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Posted in Patent

On June 25, 2013

The Supreme Court asked the U.S. Solicitor General to weigh in on whether to hear an appeal from the Federal Circuit’s decision in Akamai Technologies Inc. et al v. Limelight Network, Inc. on induced infringement. This is a very closely watched case for the software industry, but may have far reaching implications in the pharmaceutical field as well.

Uniloc v. Rackspace – 35 U.S.C. § 101 Lockdown in the Eastern District of Texas

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Posted in Patent

On April 4, 2013

In Uniloc USA, Inc. v. Rackspace Hosting, Inc., Eastern District of Texas Chief District Judge Leonard Davis granted Rackspace’s motion to dismiss Uniloc’s complaint under Fed. R. Civ. P. 12(b)(6) for failure to allege infringement of a patentable claim under 35 U.S.C. § 101. This ruling is notable for several reasons: the Court granted an early motion to dismiss for the defendant in a historically pro-patentee jurisdiction (E.D. Texas), and the early dismissal resulted from the court finding the patent invalid under 35 U.S.C. § 101.

PTO Announces Software Partnership Roundtable Meetings

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Posted in Patent

On January 9, 2013

In an effort to “enhance the quality of software patents,” the United States Patent and Trademark Office (“PTO”) has announced a partnership with the software community. The Software Partnership will provide roundtable discussions between stakeholders and the PTO to share ideas and insights on software-related patents. The PTO will sponsor two roundtable events, one in Silicon Valley on February 12, and the other in New York City on February 27. In addition, the PTO plans to make each roundtable event available via Web cast, and will post Web cast information on its Internet Web site before the events.

Apple v. Motorola – An End to the Smart Phone Wars or the Harbinger of New Standards for Proving Damages and Injunctions?

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Posted in Patent

On June 29, 2012

Judge Posner’s ruling in Apple v. Motorola last week may have brought an end to the patent war between the parties, but may be a harbinger for tougher standards for proving patent damages and injunctions. Apple and Motorola have accused each other of infringing patents directed to cell phone technology. Following a Daubert hearing, Judge Posner excluded the parties’ damages experts as unreliable. Because the parties cannot prove their respective damages without admissible expert opinion, the Court dismissed the case with prejudice.

Prometheus Re-bound: Supreme Court Reverses in Mayo v. Prometheus Labs

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Posted in Patent

On March 20, 2012

In a much anticipated decision, a unanimous Supreme Court today reversed the ruling of the Federal Circuit Court of Appeals, and held that Prometheus’ process is not patent eligible. Mayo Collaborative Servs. v. Prometheus Labs., Inc., No. 2008-1403, slip. op. (Fed. Cir. Dec. 17, 2010), rev’d, 566 U.S. __ (2012). Mayo purchased and used medical diagnostic tests based on Prometheus Labs’ patents, but later sold and marketed its own diagnostic test. Prometheus Labs brought suit, asserting that Mayo’s test kits infringed its patents.

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