Articles Posted in US Court of Appeals for the Federal Circuit

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Brunetti owns the clothing brand “fuct.” In 2011, individuals filed an intent-to-use application for the mark FUCT for items of apparel. The applicants assigned the application to Brunetti, who amended it to allege use of the mark. The examining attorney refused to register the mark under the Lanham Act, 15 U.S.C. 1052(a), finding it comprised immoral or scandalous matter because FUCT is the past tense of “fuck,” a vulgar word, and is therefore scandalous. The Trademark Trial and Appeal Board affirmed. The Federal Circuit reversed. While substantial evidence supports the Board’s findings and it did not err concluding the mark comprises immoral or scandalous matter, section 2(a)’s bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech. The bar is a content-based restriction on speech; trademark registration is not a government subsidy program that could justify such a bar. Nor is trademark registration a “limited public forum,” in which the government can more freely restrict speech. The bar survives neither strict nor intermediate scrutiny. Even if the government had a substantial interest in protecting the public from scandalous or immoral marks, the regulation does not directly advance that interest because section 2(a) does not directly prevent applicants from using their marks. View "In re: Brunetti" on Justia Law

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The Biologics Price Competition and Innovation Act (BPCIA), governs abbreviated biologics license applications (aBLAs) based on the licensing of a reference product. BPCIA allows patent infringement suits before approval: the applicant provides confidential access to its aBLA. The parties negotiate a list of patents for an immediate infringement action. Under subsection 262(l), the applicant gives notice at least 180 days before commercial marketing, to allow a suit for preliminary injunction. If the applicant discloses information, neither may bring suit based on non-listed patents before notice of commercial marketing. Amgen has marketed Neupogen® since 1991. Sandoz filed an aBLA, for a Neupogen biosimilar. Sandoz notified Amgen that intended to launch its biosimilar upon approval and would not provide its aBLA. In 2015, the FDA approved Sandoz’s aBLA. Sandoz gave notice of commercial marketing. Amgen sued, asserting state law claims of unfair competition based on BPCIA violations; conversion; and patent infringement. The court held that BPCIA permits an applicant not to disclose its aBLA and that the applicant may give notice of commercial marketing before FDA approval. The Federal Circuit affirmed dismissal of Amgen’s state law claims, but directed the court to consider the patent infringement claims. The Supreme Court held that an injunction under federal law is not available to enforce 42 U.S.C. 262(l)(2)(A) and a biosimilar applicant may provide the notice required by 262(l)(8)(A) either before or after FDA approval to start the 180-day clock. The Federal Circuit then affirmed dismissal of the state law claims; Sandoz did not forfeit its preemption defense and the BPCIA preempts state law remedies for failure to comply with section 262(l)(2)(A). View "Amgen Inc. v. Sandoz" on Justia Law

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IH’s patent relates to a method of purchasing goods at a local point-of-sale system from a remote seller. IH sued Bed Bath & Beyond for infringement. Two months later, the district court granted BBB summary judgment, concluding that the Supreme Court’s intervening decision, Alice Corp. v. CLS Bank, rendered the asserted claims invalid under 35 U.S.C. 101 because the asserted claims are directed to the abstract idea of “local processing of payments for remotely purchased goods.” The Federal Circuit affirmed. BBB moved for an award of attorney fees under 35 U.S.C. 285, arguing that, once Alice issued, IH should have reevaluated its case and dismissed the action. The district court granted BBB’s fees motion, holding that, “following the Alice decision, IH’s claims were objectively without merit,” and awarded BBB its attorney fees beginning from the date of the Alice decision, including fees incurred during the section 101 appeal. The Federal Circuit affirmed. IH’s claims were “dubious even before the Alice decision” and Alice was a significant change in the law as applied to the facts of this particular case. View "Inventor Holdings, LLC v. Bed Bath & Beyond, Inc." on Justia Law

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Arctic Cat sued BRP for infringement of the 969 and 545 patents, which disclose a thrust steering system for personal watercraft propelled by jet stream. The district court rejected, as a matter of law, BRP’s argument that the asserted claims would have been obvious (35 U.S.C. 103), that Arctic Cat failed to mark patented products, that the jury’s royalty award was based on improper expert testimony, and that BRP did not willfully infringe the asserted claims. The court awarded treble damages and an ongoing royalty. The Federal Circuit affirmed as to obviousness, the jury’s royalty rate, willfulness, the awards of treble damages and an ongoing royalty. Substantial evidence of industry recognition and “long-felt need” supported a conclusion that a skilled artisan would not have “anticipated success” with the claimed combination. The court vacated as to marking, 35 U.S.C. 287(a), and remanded for further consideration limited to that issue. View "Arctic Cat Inc. v. Bombardier Recreational Products, Inc." on Justia Law

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Addressing appeals in three companion cases from inter partes reviews by the U.S. Patent and Trademark Office Patent Trial and Appeal Board, the Federal Circuit affirmed the “Iron Dome” and “DISH” Final Written Decisions but reversed the Board’s determination on obviousness in the “Hulu” decision. The patent at issue describes methods and systems for “user-directed transfer of an on-going software-based session from one device to another device.” Substantial evidence supported the Board’s findings that five claims of the patent were anticipated and multiple claims would have been obvious over the combination of prior art. View "CRFD Research, Inc. v. Matal" on Justia Law

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Presidio alleged infringement of its patent, which claims a multilayer capacitor design and teaches a multilayer integrated network of capacitors electrically connected in series and in parallel. While the suit was pending, ATC sought an ex parte reexamination of the patent in light of new prior art. The examiner rejected the claims as anticipated and obvious. Presidio amended the claims. The Patent and Trademark Office issued a reexamination certificate for the patent. Based on the amended claims, a jury found direct infringement and induced infringement of six claims by the accused products and that Presidio had proven by clear and convincing evidence that ATC’s infringement of the asserted claims was willful. The jury awarded Presidio $2,166,654 in lost profit damages and issued an advisory verdict that ATC failed to prove by clear and convincing evidence that claim 1 was indefinite. The district court upheld the findings, in favor of Presidio, but denied Presidio’s motion for enhanced damages. The Federal Circuit affirmed that the claims are not indefinite, that enhanced damages were appropriate, and that ATC is entitled to absolute intervening rights because a substantive amendment was made during reexamination but held that the evidence did not support an award of lost profits, vacated an injunction, and remanded for determination of a reasonable royalty. View "Presidio Components, Inc. v. American Technical Ceramics Corp." on Justia Law

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BASF’s patent describes and claims systems for performing catalytic conversion of nitrogen oxides (NOx) in an exhaust gas stream, with a partly-dual-layer arrangement of coatings on a substrate over which exhaust gas passes—a coat along the full length of the substrate containing “a material composition B effective to catalyze selective catalytic reduction (SCR) of NOx”; and beneath part of that coat, on the outlet end of the gas passage, a partial-substrate undercoat containing “a material composition A effective for catalyzing NH3 oxidation” (ammonia oxidation, or AMOx). BASF sued its competitor for infringement. The district court held that the “effective for catalyzing”/“effective to catalyze” language was indefinite and entered judgment of invalidity. The Federal Circuit reversed. Under the Supreme Court’s decision in “Nautilus,” the question is: would the “composition . . . effective to catalyze” language, understood in light of the rest of the patent and the knowledge of the ordinary skilled artisan, have given a person of ordinary skill in the art a reasonably certain understanding of what compositions are covered? The district court’s reasoning supplied no basis to answer that question in defendant’s favor; the inference of indefiniteness simply from the scope finding is legally incorrect: “breadth is not indefiniteness.” View "BASF Corp. v. Johnson Matthey Inc." on Justia Law

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LifeTech sold genetic testing kits to detect the presence of “short tandem repeat” (STR) sequences of DNA. Its “STR kits,” were assembled in the United Kingdom and consisted of five components. At least one component was supplied from the U.S. Promega, the exclusive licensee of the U.S. “Tautz patent,” which expired in 2015 and claimed methods and kits for analyzing DNA to determine the identity and kinship of organisms, sued LifeTech for infringement. In 2014, the Federal Circuit held that a multi-component product assembled overseas could infringe a U.S. patent under 35 U.S.C. 271(f)(1)1 when only a single component is supplied from the U.S. The Supreme Court reversed, holding that section 271(f)(1) does not cover the supply of a single component of a multicomponent invention. On remand, the Federal Circuit first reaffirmed: that the asserted claims of four Promega patents were invalid for failure to comply with the enablement requirement, 35 U.S.C. 112; that certain of LifeTech’s alleged acts of infringement were not licensed under a license agreement between LifeTech and Promega; and that LifeTech was not required to “actively induce” a third party to combine the components of the accused products to be liable under section 271(f)(1)--that requirement could be met if LifeTech had the specific intent to combine the components itself. The court then reinstated the district court’s grant of judgment as a matter of law that Promega failed to prove infringement under 35 U.S.C. 271(a)3; 271(f)(1). View "Promega Corp v. Life Technologies, Inc." on Justia Law

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Sanofi’s patents describe and claim compositions and uses of the cardiovascular (antiarrhythmic) drug dronedarone. The 800 patent, which expires in 2019, claims pharmaceutical compositions containing dronedarone. The 167 patent, which expires in 2029, claims methods of reducing hospitalization by administering dronedarone to patients having specified characteristics. In 2009, Sanofii received New Drug Application approval for 400 mg tablets of dronedarone, sold as Multaq®. Both patents are listed in the FDA publication Approved Drug Products with Therapeutic Equivalence Evaluations (Orange Book) as patents claiming either Multaq® or a method of using Multaq®. Defendants, hoping to market generic versions of Multaq®, filed abbreviated new drug applications with the FDA, certifying under 21 U.S.C. 355(j)(2)(A)(vii)(IV), their beliefs that both patents were invalid and/or that the manufacture, use, and sale of the proposed generic drugs would not infringe either patent. Sanofi sued for infringement under 35 U.S.C. 271(e)(2)(A). The district court ruled, and the Federal Circuit affirmed, that as to the 167 patent, Sanofi proved that sale of the proposed generic drugs, with the proposed labels, would induce physicians to infringe, and defendants did not prove that any asserted claims were invalid for obviousness. As to the 800 patent, the courts rejected the non-infringement argument. View "Sanofi v. Watson Laboratories Inc." on Justia Law

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Two-Way’s patents, entitled “Multicasting Method and Apparatus,” generally relate to a system for streaming audio/visual data over a communications system like the internet. The patents explain that internet systems typically operate on a point-to-point, unicast, basis. In unicast systems, a message is converted into a series of addressed packets which are routed from a source node to a destination node. Unicast systems cannot broadcast a message from a source node to all the other recipients in a network, as this type of operation could easily overload the network. IP Multicasting provides a way to transmit one packet of information to multiple recipients; packets destined for several recipients are encapsulated in a unicast packet and forwarded from a source to a point in a network where the packets are replicated and forwarded on to all desired recipients. The patents explain that this technology had previously been used to provide internet-based audio/visual conferencing servicing and radio-like broadcasts and describe the invention as an improved scalable architecture for delivering real-time information. The Federal Circuit affirmed a holding that certain claims are directed to patent-ineligible subject matter under 35 U.S.C. 101. The claims are directed to abstract ideas and contain no additional elements that transform them into an application of the abstract ideas. View "Two-Way Media Ltd. v. Comcast Cable Communications, LLC" on Justia Law