07.22.18

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Patents Roundup: Patent Litigation is Down and Seems to Have Shifted Away From Software Patents

Posted in America, Courtroom, Patents at 11:42 pm by Dr. Roy Schestowitz

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Summary: A roundup of recent patent cases of interest and what can be deduced from them, especially but not exclusively in the United States

AS THE weeks and months go by we see the USPTO moving further and further away from software patents; it’s hardly a surprise that patent litigation has nosedived and many patent trolls have gone out of ‘business’ (they never had a legitimate business, only a litigation/extortion pipeline). Cemented by a long series of Federal Circuit decisions (especially in 2017) and a growing demand for Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), this trend carries on pretty much unabated. It has been pleasing to watch because we started campaigning on the matter a very long time ago, well over a decade.

Watchtroll has, at least to us, become somewhat of a laughing stock. It’s just attacking courts, attacking judges, and blaming everything on Google. 4 days ago it wrote about Jazz Pharmaceuticals and a Federal Circuit which we covered here before. This isn’t about Secrion 101. Neither is this other case covered by Watchtroll in relation to Power Integrations:

Power Integrations, Inc. owns U.S. Patent Nos. 6,212,079 (“the ‘079 patent”) and 6,538,908 (“the ‘908 patent”). Power Integrations sued Fairchild Semiconductor Corporation and Fairchild (Taiwan) Corporation (collectively “Fairchild”) for infringement.

Notice that these have nothing to do with software. It recently wrote about this rejection of a patent leading to accusations that a company had “committed fraud because it did not notify shareholders” (yes, fraud).

Watchtroll said:

Citron does not allege, and could not credibly allege, that the PolarityTE has been lying to the United States Patent and Trademark Office. Nor did Citron allege subterfuge surround the technology or science underlying the patent application in question. Indeed, Citron specifically says in the report that they “will not discuss the science behind PolarityTE”. Instead, the astonishing claim is made that PolarityTE has committed fraud because it did not notify shareholders that the patent examiner issued a non-final rejection in a patent application.

This case, again, isn’t about software. Yesterday night Florian Müller wrote about Qualcomm (now in our latest daily links) after he had covered this latest twist in Huawei v Samsung — a case covered by him in recent months. To quote:

This week in Huawei v. Samsung delivered two more sethacks for the Chinese Android device maker and increasingly aggressive patent enforcer (I don’t want to call them a “patent bully” just yet, though it may be an appropriate label at a later stage).

First, he trial that Judge William H. Orrick will preside over in the Northern District of California in December is going to be far narrower, and potentially less impactful, than Huawei had hoped. As I had noted toward the end of this recent post, Huawei previously informed of the court of its willingness to withdraw its request for a declaratory judgment on worldwide FRAND licensing terms to its standard-essential patents, subject to an agreement with Samsung on the specifics. That agreement has indeed materialized, suggesting that Huawei saw a high risk of Judge Orrick throwing out the claim (whose dismissal Samsung was already formally seeking) at any rate. Instead of having to make a decision, Judge Orrick merely had to grant the parties’ stipulation of a dismissal that is formally without prejudice, allowing Huawei to try again, but only in a different case and not for at least nine months (this post continues below the document):

It certainly looks like Huawei is losing its momentum; its case against Samsung — like Apple’s cases — is becoming a “winner” only for patent lawyers.

Another new report, this one about a case in New York, has one party “seeking, inter alia, declaratory judgments of noninfringement and invalidity of U.S. Patent No. RE39,470, U.S. Patent No. 7,382,334, and U.S. Patent No. 6,430,603 (collectively, the “Patents-in-Suit”).”

Here are the details:

On July 13, 2018, United States District Judge Laura Taylor Swain (S.D.N.Y.) granted a motion by Plaintiff— BroadSign International, LLC (“BroadSign”) —for leave to file a Second Amended Complaint against Defendant T-Rex Property AB (“T-Rex”), seeking, inter alia, declaratory judgments of noninfringement and invalidity of U.S. Patent No. RE39,470, U.S. Patent No. 7,382,334, and U.S. Patent No. 6,430,603 (collectively, the “Patents-in-Suit”).

BroadSign supplies hardware and software solutions to operators of networks of digital signs. T-Rex has sued several of BroadSign’s customers that make, use, or sell digital signage systems, for direct patent infringement on one or more of the Patents-in-Suit.

It’s too early to tell what will happen, but by the sound of it Section 101 might be applicable here.

One more case of interest is Ariosa Diagnostics v Illumina, wherein prior art is brought into question/scrutiny because “the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date.” To quote:

In the simple case outlined above, the courts all agree that the disclosures found in an issued patent or published application count as prior art as of the patent’s filing date. The difficulty comes when we bring priority-claims into play (such as priority to a provisional application).

In this case, the Federal Circuit ruled that a published application can count as prior art as of its provisional filing date — but only as to features actually claimed in the application. According to the court, features disclosed in the provisional but not claimed in the published application will only be prior art as of their date of public disclosure.

The patent challenger argues that this interpretation is wrong — and particularly that the effect of the priority claim should be governed by 35 U.S.C. §§ 119(e)(1) and 120, which provide for applications properly claiming priority back to an earlier filing “shall have the same effect, as to such invention, as though filed on” the earlier date. On the other side – the statutory hook for the Federal Circuit’s limitation here is the fact that the statute gives priority for “the invention” — i.e., the claimed invention — but not for the disclosure as a whole. In addition Sections 119 and 120 develop the rules for patents claiming priority — not for prior art.

Indecision here too (for now)?

On the difference between knowing about patent infringement and not even being aware (which is the upside of never reading any patents), check out this Docket Report about Olaf Soot Design, LLC v Daktronics, Inc., et al. As the Docket Navigator put it the other day:

The court granted defendants’ motion for summary judgment that they did not willfully infringe plaintiff’s winch system patent because plaintiff presented insufficient evidence of knowledge through the knowledge of defendants’ outside prosecution counsel.

So it’s better not to be aware or to not to do one’s ‘homework’.

Last but not least, there’s this report behind paywall saying that “Philips SEP [is] validated by UK High Court,” which basically means patent tax one cannot work around, even in Europe. To quote:

The High Court has validated a Philips standard essential patent, making it “two-one to Philips as it moves towards the FRAND trial” in its litigation with Asus and HTC

The UK’s position on FRAND was quite covered a lot last year after a judgment had been issued by Colin Birss. Whether or not that spells doom or helps bring software patents to Britain remains to be seen; no doubt the fate of the UPC would play a considerable role.

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