Patents

TomTom Unable to Preempt Suit In Texas By Seeking Declaratory Judgment in Massachusetts

September 11, 2012

As I’ve written before, getting sued for patent infringement in Texas (often the Eastern District, or “EdTX”) is generally viewed as undesirable by corporate America. Apparently seeking to avoid this unpleasantness, TomTom, Inc. filed a suit in Massachusetts, asking the court to declare that it did not infringe several patents held by Norman IP Holdings, Inc., over which Norman had already sued TomTom in EdTX. As its name suggets, and as best I can determine, Norman is a non-practicing entity that has been active in the courts of EdTX. However, TomTom’s strategy of avoiding Texas appears to have failed. Massachusetts U.S. District Court Judge Saylor has upheld a decision by Magistrate Judge Judith Dein concluding that the Massachusetts court did not have jurisdiction over Norman, and therefore could not force Norman to confront it over these issues in Massachusetts. It appears that Texas is where TomTom will have to defend itself against Norman. I will quote, not for the first or last time, the words of General Phillip Sheridan: “if I owned Texas and Hell, I’d rent out Texas and live in Hell.” Words that ring true for Texas patent defendants. TomTom, Inc. v. Norman IP Holdings, LLC (D. Mass. September 4, 2012)  

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Why Can’t We All Get Along? CAFC Fractures Over Divided Infringement

September 9, 2012

“. . . the intolerable wrestle with words and meanings . . .” East Coker, by T.S. Eliot __________ Congress enacts laws.  The courts interpret and apply them in cases. Often, there is disagreement over what the words mean, and judges debate the meaning in published decisions. Judges on the same court may agree, disagree, dissent, concur, and form shifting majorities and minorities. Occasionally, congress will take notice and attempt to clarify a law by amendment. Sometimes, this only adds to the confusion. The eleven active judges on the Court of Appeals for the Federal Circuit, the patent appeals court, exemplify this dynamic in their August 31, 2012 en banc decision in two cases consolidated on appeal, Akamai v. Limelight and McKesson v. Epic Systems (link). The decision, totaling over 100 pages, is comprised of three opinions, each with dramatically different views of a fundamental issue in patent law. The core issue the judges on the CAFC were unable to agree upon on is this: does patent infringement occur when separate entities perform the steps of a patented method? To take a simple example, assume that a patent claim involves just two steps: first, delivering a web page to a customer’s server, second, the some form of manipulation of the page by the customer (e.g., tagging or data hashing).* In fact, this is, in highly simplified form, analagous to some of…

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Apple v. Samsung Jury Verdict Form. Huh?

September 3, 2012

I’ve been meaning to post a link to the jury verdict form in the Apple v. Samsung patent case. Here it is, linked at the bottom of the post. And no, that’s not some weird crossword puzzle on the left, it’s a tiny section of the verdict form. If this isn’t the most complex jury verdict form in American legal history, I can’t imagine what is. The Verge did a nice job of dissecting the jury verdict form pre-verdict, and concluded that a decision on the approximately 700 decision points would “not go quickly.” Turns out The Verge was mistaken; the jury was able to wrap things up in just over two days, awarding over $1 billion to Apple. They did this with the help of a jury foreman who had applied for and obtained a patent – the only juror who had even the slightest familiarity with patents before this trial. Do you think his (presumably) pro-patent views influenced the outcome in this case? Did Apple get really, really lucky? Could make a person wonder …. Jury verdict in Apple v. Samsung (on Groklaw)

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How to Follow the Apple v. Samsung Patent Trial

August 2, 2012

The Internet has made following trials in real time feasible, more or less.  For the press to cover controversial trials is nothing new, but in the past these were mostly criminal cases.  Today, thanks to sites like groklaw.net, people can follow technology industry cases in detail – descriptions of what is going on in the courtroom, documents and (in the case of groklaw), unsparing commentary. Groklaw is following Apple v. Samsung from a distance (at least compared to its recent coverage of Oracle v. Google), and the traditional press appears to be covering the case heavily, but only at a general level of detail.  However, someone has put together a twitter feed consolidating the tweets of several industry reporters.  It’s almost like a shadow jury, but a jury of people more knowledgeable about the companies involved than the average juror.  And, in some cases, openly opinionated. The lawyers involved in this case, and certainly in any case covered in detail by groklaw, must dread the possibility that jurors are reading these materials. The twitter feed is here.

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Apple’s “Bounce Back” Patent

August 2, 2012

It seems that Google’s “bounce back” patent is going to play a big role in the trial between Apple and Samsung, underway in federal district court in Palo Alto.  References to it in Apple’s opening statement highlighted this patent. I wasn’t sure what the “bounce back” was, but I think I’ve tracked it down. How do you know that you’ve reached the bottom or top of a page on an iPhone or iPad?  The screen “bounces back” in the opposite direction.  Or, as described in patentese in U.S. patent  7,469,381, issued to Apple in December 2008: In accordance with some embodiments, a computer-implemented method for use in conjunction with a device with a touch screen display is disclosed. In the method, a movement of an object on or near the touch screen display is detected. In response to detecting the movement, an electronic document displayed on the touch screen display is translated in a first direction. If an edge of the electronic document is reached while translating the electronic document in the first direction while the object is still detected on or near the touch screen display, an area beyond the edge of the document is displayed. After the object is no longer detected on or near the touch screen display, the document is translated in a second direction until the area beyond the edge of the document is no…

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Judge Posner Puts the Kabosh on Apple/Google Smartphone Patent Suit

July 6, 2012

“It’s not clear that we really need patents in most industries . . .. You just have this proliferation of patents. “It’s a problem.” Judge Richard Posner, Silicon Valley MercuryNews.com, July 5, 2012   Do you recall the final scene in Monty Python and the Holy Grail?  After 90 minutes of farcical medieval/King Arthur-inspired humor the film concludes with a big attack scene (cliché visuals of swords, spears and knights in armor, opposing armies lined up in a field, battle music ….).  King Arthur makes a Crusades-inspired speech and yells charge.  Just as the armies are about to engage a police car pulls up with siren blaring.  20th century British bobbies jump out and arrest some of the knights, who put up no resistance.  Others are simply told to go home.  The war is cancelled.  (video). This is not very different from what just happened in the patent war between Apple and Motorola Mobility (owned by Google) over smartphone patents.  In that case, initially filed in federal court in Wisconsin in late 2010, a year before Steve Jobs’ death, each side accused the other of multiple patent infringements. To put things in context, this case was part of the war against Google’s Android OS that Jobs initiated before his death.  According to the Isaacson biography of Steve Jobs, Jobs stated that Android’s use of Apple’s ideas equated to “grand theft,” and that…

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Judge Young Issues Mea Culpa on Expert Witness Testimony in Patent Case, Orders a Do-Over

January 27, 2010

Massachusetts U.S. District Court William Young has been teaching evidence law for as long as I can recall, even as far back as his pre-federal court days, when he was on the Superior Court bench (Judge Young was appointed to the federal bench in 1985, and had been a Massachusetts Superior Court Judge from 1978 to 1985). So it comes as a surprise to many when Judge Young admits he made an evidence-related error during a recent patent trial, and that as a result he will order a new trial. The case is NewRiver, Inc. v. Newkirk Products, Inc.  In brief, NewRiver’s patent claimed as an invention a computer-assisted method for manipulating securities information in the SEC EDGAR database to extract only certain information, such as mutual fund prospecti.  After trial the jury held some claims to have been infringed, and others to be invalid as obvious. The issue that has attracted attention is contained in Judge Young’s decision addressing the usual tsunami of post-trial motions for judgment notwithstanding the verdict. The problem arose in connection with NewKirk’s challenge to the validity of NewRiver’s patent. On this issue Newkirk’s expert testified as follows: Q:  Dr. Szymanski, please read claim 9. This is the independent claim. It states: A system for providing access to mutual fund compliance information comprising: An obtainment subsystem for acquiring securities information from one or more database sources and…

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Mister Softee Bitten By Waiver Under FRCP 50

January 18, 2010

I’ve written before about how dangerous waiver is for lawyers.  It lurks everywhere, like sharp coral just a few inches beneath the water off an inviting tropical beach. In Microsoft’s recent loss to i4i in federal court in Texas affirmed by the Federal Circuit, Mister Softee (stock trader slang for Microsoft), found itself hung up on a reef with razor sharp coral when the Federal Circuit may have refused to reverse a $290 million trial verdict on what the court considered a waiver technicality. As every experienced trial lawyer knows, trials are a virtual waiver landmine – if you don’t proffer the evidence a judge excludes, you’ve waived it on appeal.  If you don’t object to jury instructions, you waive the right to challenge them on appeal.  This list seems almost endless, and there’s nothing a federal court of appeals likes more than to dismiss an argument on the grounds that it was, somehow, waived during trial. This having been said, there are a few potential waivers points that lawyers absolutely MUST keep in mind – to the point where the documents that will avoid the waiver should be prepared before trial, subject only to updating as the trial progresses and the moment of truth (or waiver) is reached.  These waivers arise under FRCP 50, and are: Before the case goes to the jury the defendant MUST move for judgment…

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Listen to Oral Argument in Bilski v. Kappos

December 10, 2009

Well, sort of. You can wait until the end of the term to hear oral argument in Bilski v. Kappos, or you can listen to Professor Doug Lichtman’s students’ impassioned reading of the transcript, on the superb Intellectual Property Colloquium.  I found this reading to be very accessible – a new twist on audiobooks. IP Colloquium is by far my favorite legal podcast.  Professor Lichtman has great guests and provides thoughtful commentary.  This Shakespearean treatment of an appeal hearing is inspired. (Nice summary of the background of Bilski, and what’s at issue, on Bill Trout’s blog). And, some nice quotes from the justices, trying to figure out the limits of patent protection.  Could a patent protect – “somebody who writes a book on how to win friends and influence people?””horse whisperers?””a method for speed dating?” “a great wonderful, really original method of teaching antitrust law?” “actuarial tables and risk formulas?” In the meantime the CAFC is applying its “machine or transformation” test from its en banc ruling in In re Bilski.  A recent example of this is Prometheus Labs v. Mayo, issued on September 16, 2009, where the patentable invention was a “pro-drug that upon administration to a patient converts to 6M-P, which are used to treat inflammatory bowel diseases (“IBD”) such as Crohn’s disease and ulcerative colitis.” The CAFC held, among other things, that patent law does protect the…

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Judge Michel Announces Resignation, Lays it On the Line (and promises more to follow)

November 25, 2009

CAFC Chief Judge Paul Michel doesn’t pull punches when he states his views on problems with the U.S. patent system and the federal courts more generally, and he didn’t pull too many when he announced his upcoming retirement from the CAFC on on November 20, 2009.  A few notable quotes from his speech: On interlocutory appeals of claim construction rulings to the CAFC: A provision in a Senate patent reform bill would allow interlocutory appeals of Markman rulings.  Predictably, Judge Michel doesn’t like the idea.  He states that interlocutory appeals would double or triple the case load on the CAFC, and the court “can’t handle it.” The median time to adjudicate a patent case before the CAFC?  One year “from filing, to the opinion going up on the Internet.”  Interlocutory appeals would double this to two years. And, interlocutory appeals are unnecessary as a practical matter, he argues.  Some interesting statistics from Judge Michel:  “About 3,000 [patent cases] are filed a year, about 2,700 settled spontaneously. Of the remaining 300, about 200 are resolved on summary judgment, almost always based on claim construction. . . . The remaining 100 go to trial. . . . there almost are never second trials. There usually aren’t even first trials.” On Upcoming Retirements from the CAFC: The CAFC has 11 active judges and five senior judges. . . .  [t]he . . . …

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Expect a "Perilous Future for Most Business Method Patents," Saith Judge Marylin Patel

April 6, 2009

Judge Marylin Hall Patel, a federal district judge in the North District of California (San Francisco/Silicon Valley) since 1980 and Chief Judge in the District from 1997 – 2004, is a well known federal judge when it comes to intellectual property matters. For example, Judge Patel decided the Grokster case at the district court level, which eventually was affirmed by the Supreme Court, and she has decided many patent cases.  When she speaks on IP matters, one would do well to listen Therefore, her March 26, 2009 decision in Cybersource v. Retail Decisions is of no small significance. In this case Judge Patel applied In re Bilski to invalidate two business method patent claims in U.S. Patent No. 6,029,154, titled “Method and system for detecting fraud in a credit card transaction over the Internet.” The CAFC’s decision in Bilski requires that a process either be tied to a machine or apparatus or involve a transformation, and Judge Patel held that the ’154 patent failed this “machine-or-transformation” test. Judge Patel held that a credit card number is not a physical object, thereby failing the “transformation” test, and she rejected the argument that because the claims were tied to the Internet they satisfied the “machine” test, since “one cannot touch the Internet.” At the conclusion of her opinion she stated: In analyzing Bilski, one is led to ponder whether the end has…

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Andy Updegrove's Thoughts on the Microsoft v. TomTom Patent Case, on Consortiuminfo.org

March 20, 2009

It would be an understatement to observe that Microsoft’s patent suit against Dutch GPS vendor company TomTom has been closely watched. Why? Because Microsoft alleges that several of the patents at issue are infringed by TomTom’s implementation of the Linux kernel. In this first month of the dispute, the most urgent question has been this: will TomTom fight or fold? Now we have the answer: TomTom has decided to fight – and perhaps fight hard. Yesterday, it brought its own suit against Microsoft in a Virginia court, alleging that Microsoft is guilty of infringing several of TomTom’s own patents. The question that many Linux supporters are now asking is this: is this good news for Linux, or bad? Here are my thoughts on that important question. Continue reading ….

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