07.21.18

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Federal Circuit Judges Moore, Dyk and Reyna Tell Allergan That It is Not Above the Law

Posted in America, Courtroom, Patents at 8:36 am by Dr. Roy Schestowitz

The Court of Appeals for the Federal Circuit (CAFC) in the United States finally says what ought to have been pretty obvious all along

Australian House of Parliament
Australian House of Parliament, where similarly important decisions have been made lately (including de facto ban on software patents as per IP Australia’s policy)

Summary: Allergan and a Native American tribe have lost their ridiculous case; after swapping tens of millions of dollars in pursuit of immunity for patents they’ve lost again (in what’s likely their last resort/appeal); expect the patent microcosm to attempt to distract from it (like they did Oil States)

THE Patent Trial and Appeal Board’s (PTAB) inter partes reviews (IPRs) aren’t just secured by Oil States; the new Director of the USPTO will need to coexist with PTAB, seeing that nothing but a case with his name on it (SAS and Iancu) favours PTAB cutbacks.

The latest boost for PTAB comes from a high patent (and beyond) court. It’s quite likely the final stop. The ‘scammers’ who threatened me with legal action (for speaking out against their bogus patents and dirty tricks) have just lost their case. IP Watch‘s Steven Seidenberg said this: “The strategy was breathtaking in its boldness. Just days before the USPTO was to hear a challenge to Allergan Inc.’s patents on a dry-eye drug, Restasis, the company transferred those patents to a Native American tribe; the tribe then sought to dismiss the USPTO proceedings by asserting sovereign immunity. Following this action, a number of other patentees made similar transfers to Native tribes, in order to protect their patents. More patentees were poised to do so, should this ploy prove effective. It, however, did not. On 20 July, the Federal Circuit Court of Appeals ruled the tribe’s sovereign immunity did not protect its patents from USPTO review. The ruling thus kept intact a key component of America’s patent system.”

“It’s quite likely the final stop.”The remainder is behind a paywall.

“Allergan is not protected from PTAB review by the Saint Regis Mohawk Tribe’s sovereign immunity, says the appeals court in a ruling that relies on the Supreme Court’s FMC opinion,” Michael Loney wrote.

Over at Patent Progress, Josh Landau (CCIA) wrote:

Today, in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, the Federal Circuit held that tribal sovereign immunity does not provide a right of immunity in inter partes reviews (IPR).

In an opinion by Judge Moore, writing for herself and Judges Dyk and Reyna, the Federal Circuit focused on the PTO Director’s ability to decide whether or not to proceed with an IPR, a decision which ensures that “if IPR proceeds on patents owned by a tribe, it is because a politically accountable, federal official has authorized the institution of that proceeding.” This aspect of IPR is sufficient to treat IPR as a proceeding “in which an agency chooses whether to institute a proceeding on information supplied by a private party,” exactly the type of proceeding which the Supreme Court has previously held would not be subject to state sovereign immunity, and by extension to tribal sovereign immunity. (CCIA joined an amicus brief suggesting the Federal Circuit deny tribal immunity on this ground, among others.)

Watchtroll mentioned “an opinion authored by Judge Moore,” choosing not to simply attack the judge, for a change. It’s Mayer whom the site (in)famously attacked, not Moore; “It is time for Judge Mayer to Step Down,” said the headline (there has been more of that since).

“Watchtroll is of course cherry-picking outcomes or cases that serve to distract from the majority of cases…”Moore was recently mentioned in relation to a decision about Alice, with words taken out of context to insinuate that Congress should look into it. We debunked these lies from the patent microcosm at the time. Vis-à-vis Judge Moore, yesterday Watchtroll mentioned her and and her superior Chief Judge Sharon Prost:

On Monday, July 16th, the Court of Appeals for the Federal Circuit issued a precedential decision in Blackbird Tech v. ELB Electronics, which vacated an earlier judgment of non-infringement of a patent asserted by Blackbird in the District of Delaware. The Federal Circuit panel of Chief Judge Sharon Prost and Circuit Judge Kimberly Moore determined that the district court had erred at construing the claim term “attachment surface” in finding non-infringement of the asserted claims. Circuit Judge Jimmie Reyna dissented in this case.

The patent-at-issue is U.S. Patent No. 7086747, titled Low-Voltage Apparatus for Satisfying After-Hours Lighting Requirements, Emergency Lighting Requirements, and Low Light Requirements. Issued in August 2006, it covers an energy-efficient lighting apparatus having a ballast cover, a plurality of ballast cover holes, a circuit board having a plurality of light-emitting diodes (LEDs) which protrude through the ballast cover holes, wherein the lighting apparatus is connected to a wall switch and the illumination of the LEDs is based upon the position of the wall switch. The resulting invention provides a lighting apparatus which meet after-hours or emergency lighting requirements more efficiently and conveniently for commercial building environments.

For those who don’t know (or forgot), Blackbird is a highly notorious patent troll [1, 2, 3, 4, 5]. It calls itself “Blackbird Technologies”, but it makes no such thing. It’s a parasite and the CAFC’s staff ought to recognise this. Watchtroll is of course cherry-picking outcomes or cases that serve to distract from the majority of cases — ones in which SCOTUS decisions are being followed and patents squashed — not just the cases but the underlying patents (for invalidity rather than non-infringement).

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