Posts Tagged ‘Federal Circuit’

Fed. Cir. Rules Requirements for Direct Infringement by Multiple Parties

Friday, August 14th, 2015

CAFC Decides Akamai v Limelight–Holds For Infringement By Limelight–Defines Criteria For Directing And Controlling Customers’ Performance

iStock_000005967663_SmallIn Akami Technologies v. Limelight Networks, App. No. 2009-1372, -1380, -1416, -1417 (Fed. Cir., August 13, 2015), the court, sitting en banc after a remand from the S. Ct., set out the requirements for direct infringement involving acts by two or more parties under s. 271(a). The unanimous ruling held that an entity is responsible for others’ performance of method steps (1) where that entity directs or controls the acts of another, or (2) where the actors form a joint enterprise. (A copy of this decision is found at the end of this post.)

The court explained:

“… we have held that an actor is liable for infringement under s. 271(a) if it acts through an agent … or contracts with another to perform one or more steps of a claimed method. See BMC, 498 F.3d at 1380-81. We conclude, on the facts of this case, that liability….can also be found when an alleged infringer conditions participation in an activity or receipt of a benefit upon performance of a step or steps of a patented method and establishes the manner or timing of that performance…. In those instances, the third party’s actions are attributed to the alleged infringer such that the alleged infringer becomes the single actor chargeable with direct infringement.”

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Eisenberg Analyzes the 101 Exception for Patents Claiming Diagnostic

Tuesday, August 4th, 2015

iStock_000011677313_SmallPatentlyO recently posted a nearly final draft of a paper writer by Professor Rebecca Eisenberg that will be published in the Journal of Science and Technology Law (note to author – fix fn 23). (A copy can be found at the end of this post.) She and I have been on the opposite side of issues such as patents for genes at various times, but she nails the purposeful and logically unsupportable rationales of the Fed. Cir. and the Supreme Court that she believes have already ended patent-eligibility for claims directed to diagnostic methods. While I have argued that, even post-Ambry and Ariosa, there should be room for focused claims to diagnostic methods based on the discovery of naturally-occurring correlations, this paper suggests that “It ain’t over ’til it’s over” is hopelessly optimistic.

In some of my earliest posts, pre-Myriad and pre-Prometheus (“Mayo”), I argued that the Metabolites Labs. dissent by Justices Breyer, Stevens and Souter conflated the in vivo existence of cobalamin and homocysteine in the blood with the human act of correlating an elevated level of one with a deficiency of the other. On April 27, 2009, I wrote:

 “Justice Breyer, I respectfully submit that nature may contain [the basis for] correlations but it does not analyze, much less correlate, anything. Nature doesn’t care if your homocysteine level is low or high and what consequences may befall you if it is too high or low. Just as nature doesn’t care what your PSA level is, even though it is certainly a natural phenomenon that men have PSA in their blood. But a claim: ‘Human blood containing PSA’ does not anticipate a claim to a method of detecting prostate cancer by assaying blood for PSA and correlating an elevated PSA level to the presence of prostate cancer. Good thing those patents have expired; they yielded workable life-saving test before they expired.”

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In re Cuozzo – Still no changes for the claim interpretation standard during inter partes review proceedings

Monday, July 13th, 2015

iStock_000040556240_SmallA guest post from Theresa Stadheim, attorney at Schwegman Lundberg & Woessner.

In In re: Cuozzo Speed Technologies, LLC, Appeal No. 2014-1301 (Fed. Cir. July 8, 2015, decision by Dyk), the Federal Circuit decided not to review the Patent Trial and Appeal Board (the “Board”) practice of construing patents under the broadest reasonable interpretation (BRI) standard.

Garmin petitioned the Board for inter partes review (IPR) of claims 10, 14 and 17 of Cuozzo’s U.S. Patent No. 6,778,074 (the ‘074 patent). Garmin contended that claim 10 was invalid as anticipated under 35 U.S.C. § 102(e) or as obvious under 35 U.S.C. § 103(a) and that claims 14 and 17 were obvious under § 103(a). Claim 10 recited:

A speed limit indicator comprising:
a global positioning system receiver;
a display controller connected to said global positioning system receiver, wherein said display controller adjusts a colored display in response to signals from said global positioning system receiver to continuously update the delineation of which speed readings are in violation of the speed limit at a vehicle’s present location; and
a speedometer integrally attached to said colored display.

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Senate Confirms Finnegan Partner Kara Stoll to Federal Circuit

Wednesday, July 8th, 2015

Kara Stoll

Without a single “nay” vote, and with at least some noting that she will be the first woman of color to join the Fed. Cir., the Senate has confirmed Kara Fernandez Stoll, a litigation partner at Finnegan, to fill the seat vacated by Judge Rader’s resignation at the end of June. Soon-to-be Judge Stoll holds an BSEE degree from Michigan State and worked as an Examiner in computer/electronics art units before joining Finnegan.

As an EE, Stoll must have taken some chemistry, and she lists medical devices as an area of expertise on her resume. She also represented WARF in the Consumer Watchdog appeal, which, although the focus of the appeal was standing, involved a challenge to stem cell patents. The Fed. Cir. has been in need of more Judges with technical backgrounds. Judge Lourie was a chemist and Judge Moore holds an EE degree, but that’s about it. Congratulations to Ms. Stoll and to President Obama, who has appointed a number of Fed. Cir. judges with excellent qualifications.

IP LAW 360 – Senate Confirms Finnegan Atty To Fed. Circ. Seat