Category: Civil Procedure
 By: Jesus Hernandez, Blog Editor/Contributor 
TitleSCA Hygene Prod. Aktiebolag v. First Quality Baby Prods., LLC, No. 2013-1564 (Fed. Cir. Sept. 17, 2014).
[1: Laches] SCA argues that the reexamination proceedings preclude application of the laches presumptions in this case because the reexamination period should be excluded from the total delay. The district court rejected that theory. In its view, because SCA filed suit more than six years after first learning of First Quality’s allegedly infringing activities, the laches presumptions applied.
SCA Hygene Prod. Aktiebolag at *9.
[2: Equitable Estoppel] The district court ruled that “SCA unquestionably misled First Quality though [sic] its 2003 letter and subsequent inaction.” [...] The court focused on SCA’s failure to respond to First Quality’s letter addressing the ’646 patent and on SCA’s decision to write First Quality regarding different products and a different patent.
Id. at *16 (internal citations omitted).
[1: Laches] Because more than six years elapsed between the time SCA first learned of First Quality’s allegedly infringing activities and the time SCA filed infringement claims directed to those activities[, during which SCA monitored the infringing activities of First Quality], the district court properly found that the laches presumptions applied.
Id. at *9 (text added).
[2: Equitable Estoppel] SCA almost immediately filed a request for ex parte reexamination of the ’646 patent to address the issues raised by First Quality—an action that could reasonably be viewed as inconsistent with SCA’s alleged acquiescence. Thus, record evidence supports a version of events that differs from First Quality’s. A reasonable juror could conclude that First Quality raised an issue SCA had overlooked and that SCA, rather than acquiescing, took immediate action.
Id. at *19.

Category: ITC   
By: Roy Rabindranath, Contributor 
TItleAlign Tech., Inc. v. International Trade Commission (Fed. Circ. July 18, 2014).
IssueThe International Trade Commission's regulations authorize the Commission to review a decision of an administrative law judge (ALJ) when that decision is designated as an "initial determination." [...] Here, the ALJ denied a motion via an order. This case requires us to consider whether the Commission's review of that order was procedurally sound.
Align Technology, at *2.
HoldingBecause the Commission circumvented its own rules without waiving, suspending, or amending them, we find that its review of Order No. 57 was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law."
Id. at *10. 
 Category: 103
By: Jesus Hernandez, Blog Editor/Contributor 
TitleScientific Plastic Prod., Inc. v. Biotage AB, No. 2013-1219, -1220, -1221 (Fed. Cir. Sept. 10, 2014).
IssuesThe examiner concluded that it would have been obvious to combine the cartridge of Yamada with the cap of either King or Strassheimer. On appeal to the Board, SPP challenged (1) the examiner’s determination that King and Strassheimer were “analogous art” and (2) that it would have been obvious to combine the LPLC cartridge of Yamada with the pressure-resistant resealable cap of either King or Strassheimer.
Scientific Plastic Prod., Inc., at *5 (emphasis added).
[(1)] [T]he King and Strassheimer references address the problem of providing a fluid tight seal at elevated pressures, between a container and a resealable cap. This is sufficiently close to the problem addressed by the claimed invention; substantial evidence supports the Board’s finding that King and Strassheimer are available as prior art
Id. at *9 (text added).
[(2)] We conclude that the Board did not err in holding that it would have been obvious for a person of ordinary skill in the field of the invention to modify the chromatography cartridge of Yamada with the resealable threaded cap of King or Strassheimer [because by providing for the presence of an O-ring, the Yamada reference implicitly acknowledges that there is a potential leakage issue between the cap and column body of the plastic cartridge that could be cured by either King or Strassheimer].
Id. at *11 (text added).
 Category: Civil Procedure
 By: John Kirkpatrick, Contributor 
TitleMicrosoft Corp. v. Motorola, Inc., No. 2014-1089 (Fed. Cir. May 5, 2014) (non-precedential).
Issue[Does the Federal Circuit have jurisdiction under 28 U.S.C. § 1338(a)] based on the district court’s consolidation of Microsoft’s contract action with its patent infringement action[?]
Microsoft Corp. at *6 (text added).
HoldingThe patent infringement complaint is not part of this appeal, not having been decided by the district court. Under such circumstances, it is plausible to conclude, as the Ninth Circuit seems to have done here, that the act of “consolidation d[id] not merge the suits into a single cause, or change the rights of the parties.” Id. at *6 (internal citations removed).
Category: Licensing  
By: Christian Hannon, Contributor 
TitleWi-LAN USA Inc. v. Ericsson, Inc., No. 2013-1566 (Fed. Cir. Aug. 1, 2014).
IssueThe parties disagree about the correct interpretation of multiple parts of the [Most-Favoured Licensee ("MFL")] Provision, including whether it applies to patents that Wi-LAN acquried after the execution of the PCRA.
Wi-LAN USA, Inc., at *7.
HoldingBecause we conclude that the MFL Provision does not apply to patents acquired after the execution of the PCRA, Ericsson's rights under the MFL Provision were not triggered by the Texas suit. We therefore, reverse the Florida court's dismissal of Wi-LAN's infringement suit with respect to the Florida Patents. [...] We also affirm the Texas court's finding that the MFL provision did not bar Wi-LAN's Texas suit, albeit on different grounds.
Id. at *17. 
Category: Claim Construction   
By: Jesus Hernandez, Blog Editor/Contributor  
TitleEpos Tech. Ltd. v. Pegasus Tech. Ltd., No. 13-1330 (Fed. Cir. Sept. 5, 2014).
[1: "Drawing Implement"] The district court construed “drawing implement” as “a conventional writing utensil that can be used alone or together with the invention.” […] [It] explained that the language of the claims is “exceedingly broad,” but that the remainder of the patent is not “so broad as to contemplate using something like ‘a piece of charcoal.’” […]
Epos Tech. Ltd. at *7 (internal citations omitted, text added).
[2: “Given Time Interval”] The district court construed “given time interval” as “fixed at a few seconds or less.” […] [It] explained that, “while the words of the claims do not limit the time interval, all evidence suggests there must be some upper-bound to the interval contemplated by the patentee.” […]
Id. at *8-9 (internal citation omitted, text added).
[3: "Marking Implement"] The district court construed “marking implement” as “an implement that has a marker tip (and not a pen tip).” […] It determined that, “while the specifications occasionally reference a ‘pen’ and ‘pen tip,’ the totality of the specifications makes clear that the patentee was merely using those terms as synonyms for a dry-erase marker.”
Id. at *11.
[4: “Temporary Attachment”] The district court construed “temporary attachment” as “an element that can be removed from the device’s ‘retrofittable apparatus.’”
Id. at *14.
[1: "Drawing Implement"] Although it is true that the specifications recite embodiments including “conventional” writing implements, there is no clear indication in the intrinsic record suggesting that the claims are limited to “conventional” drawing implements [since the claims do not state the term, and the specification lists multiple drawing implements, only one of which is a “conventional” implement].
Id. at *8 (text added).
[2: “Given Time Interval”] Although the word “given” may indicate that a time interval is fixed, specified, or predetermined by an operator or a programmer, the intrinsic evidence does not limit “given time interval” to “fixed at a few seconds or less[,]” [because the patents do not require an upper bound for a period of time, but rather state that the disclosed periods of time as ‘preferable’ and ‘typical.’]
Id. at *9 (text added).
[3: "Marking Implement"] Given […] broad disclosures [which interchangeably refers to a “marking implement” as either a marker or a per], the district court erroneously construed “marking implement” to require a “marker tip” and to exclude implements with a “pen tip.”
Id. at *11 (text added).

[4: “Temporary Attachment”] The district court’s construction is incorrect because it reads out preferred embodiments [and there is no highly persuasive amount of evidentiary support for such an exclusion].
Id. at *14 (text added).

Category: 101    
By: Jesus Hernandez, Blog Editor/Contributor 
TitlebuySAFE, Inc. v. Google, Inc., No. 13-1575 (Fed. Cir. Sept. 3, 2014).
IssueThe district court granted Google’s motion for judgment on the pleadings, holding that the asserted claims fall outside section 101. The court concluded that the patent “describes a well-known, and widely-understood concept—a third party guarantee of a sales transaction— and then applied that concept using conventional computer technology and the Internet.”
buySAFE, Inc. at *4.
HoldingUnder the approach to section 101 affirmed by the Supreme Court in the recent decision in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), the district court’s holding is correct [because: (1) the claims encompass only a contractual relationship, an abstract idea; and (2) the claimed computer functionality of receiving and transmitting ‘an offer of guarantee’ is a generic implementation that does not add an inventive concept.].
Id. at *2 (text added).
Category: Infringement 
By: Samuel Dillon, Contributor 
TitleIntouch Technologies, Inc. v. VGO Comm., Inc., No. 2013-1201 (Fed. Cir. May 9, 2014).
[1] Claim construction[Whether the district court erred in construing] the ’030 patent claim term [a] “arbitrating to control” and the ’357 patent claim terms “arbitrator” and [b] “call back mechanism.”
InTouch at *17 (text added).
[2] Infringement[Whether the district court was correct to find that] all three [jury] verdicts of non-infringement [were] supported by substantial evidence [when considering certain] limitations: [a] arbitrator/arbitrating, [b] call back mechanism, [c] camera movement [...]
Id. at *22 (text added).
[3] Invalidity[Whether the district court was correct to find] that the record supports the jury’s verdict of invalidity for the ’357 and ’030 patents.
Id. at *33 (text added).
[1] Claim construction
[a: Arbitrator/Arbitrating] [I]t is clear that, for the arbitrator to control access, it needs the capability to consider and resolve access requests from and among multiple users. . . . For these reasons, we conclude that the district court did not err in construing the terms “arbitrator” and “arbitrating” to require a determination of which user among multiple users has exclusive control of the robot.
InTouch at *18-19.
[b: Call Back Mechanism] The plain language of the claim supports the district court’s construction. The phrase, “call back mechanism,” on its face connotes an intention to call back a user that was previously denied access.
Id. at *20.
[2] Infringement
[a: Arbitrator/Arbitrating] Because others cannot access the robot until the user releases control, the VGo system never considers and resolves competing requests for that robot, and thus, does not “determine” which user has exclusive control of the robot. Consequently, the VGo system lacks an “arbitrator.”
Id. at *24.
[b: Call Back Mechanism] [T]he VGo system cannot even identify any user that wants access, and it certainly does not know who may have previously sought access, but was denied. . . . Based on these conclusions, we find that substantial evidence supports the jury’s finding of non-infringement of claim 79 of the ’357 patent.
Id. at *30.
[3] InvalidityWhile our standard of review regarding the jury’s implied factual findings is a stringent one, we agree with InTouch that the evidence on which VGo relies is not substantial enough to support an obviousness finding. Indeed, it did not even come close. Dr. Yanco’s testimony was plagued with numerous problems, including her failure to: (1) identify sufficient reasons or motivations to combine the asserted prior references; (2) focus on the relevant time frame of 2001; or (3) consider any objective evidence of nonobviousness. Dr. Yanco’s testimony was nothing more than impermissible hindsight; she opined that all of the elements of the claims disparately existed in the prior art, but failed to provide the glue to combine these references.
Id. at *34-35.

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