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07.05.18

The Latest Twists in US Patent Courts

Posted in America, Courtroom, Patents at 7:21 am by Dr. Roy Schestowitz

Delaware, where a lot of the legal action has come

27th Street, Wilmington

Summary: A quick look at developments in US patent courts on this Independence Day week

THESE are the times of leadership changes; the EPO has a new President this week and the USPTO got a new Director a few months ago. Do these changes represent improvement? Well, considering the role of their offices, they will be judged based on the quality of patents granted because therein lies the only objective measure of justice.

“Motorola does not make very much anymore (in terms of products), so patent litigation may gradually become this brand’s identity.”But what about the courts? The patent offices do not deal with trials; they do, however, take into account the outcome of trials when drafting examination guidelines. Earlier this week Hytera was dealt a blow [1, 2, 3, 4, 5, 6] after Motorola Solutions had filed a patent complaint. Be sceptical of ITC, however, as it has a track record of ignoring not only the Patent Trial and Appeal Board (PTAB) but also common sense. Motorola Solutions threw 4 patents into the mix, so a proper assessment of the merit of the complaint can take some time. Another part of Motorola was bought by Google and later passed on to another giant. Motorola does not make very much anymore (in terms of products), so patent litigation may gradually become this brand’s identity. Speaking of Google, based on this new update a former Google Vice President may soon be deposed in Space Data Corporation v Alphabet Inc and Google LLC because a “court granted in part defendant’s former employee’s motion for a protective order precluding his deposition under the apex doctrine.”

“Many jurors won’t be technical enough to grasp the claims in the patents and judge them based on merit, complexity, prior art etc.”Well, at least they examine the evidence. In another case, Exmark Manufacturing Company Inc. v Briggs & Stratton Corporation, something interesting has just happened. TC Heartland gets brought up as the case may have been filed in an improper venue. “Following a jury trial,” it says, “a bench trial, appeal, and remand, the court denied defendant’s motion to transfer for improper venue because defendant waived its venue defense through litigation conduct.”

Jury trials for patents are barely suitable for reasons we named here many times before. Many jurors won’t be technical enough to grasp the claims in the patents and judge them based on merit, complexity, prior art etc. There are things for which jury trials are absolutely fine, but patents? Many such trials have typically taken place in East Texas, however litigation is now shifting to Delaware, as we shall explain in our next post.

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