Federal Circuit: April 2010 Archives
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April 2010 Archives

In Bradford Co. v. ConTeyor N. Am., Inc., No. 09-1472, the Federal Circuit faced a judgment in favor of defendant in plaintiff's patent infringement suit, involving patents related to shipping containers used to ship automobile door panels and related parts. 

The court affirmed the district court's decision limiting the priority date of a patent to its own filing date as the applicants' statement to the examiner is a compelling disclaimer of scope that the patent is not entitled to an earlier priority date.  However, district court's finding of noninfringement of two patents is reversed as the court based its finding solely on its revised construction of the term "couple to."  Furthermore, the district court erred in declining to find jurisdiction over a defendant under Rule 4(k)(2) in concluding that plaintiff had not demonstrated that defendant had sufficient contacts with Ohio or Michigan, and that doing so would not comport with due process requirements of the Constitution and federal law. 

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Avid Identification Sys., Inc. v. Crystal Import Corp., No. 09-1216, concerned a plaintiff's suit alleging infringement of a patent directed to a multi-mode radio-frequency identification system for reading encoded biocompatible chips for implantation in aninals. 

In affirming the district court's judgment that the patent was valid and infringed, but unenforceable for inequitable conduct, the court held that the district court did not abuse its discretion in rejecting the argument that plaintiff's founder and president owed no duty of candor to the PTO as he withheld material information regarding his sales demonstrations of products that reflected the closest prior art to claims of the patent.  Furthermore, the founder acted with deceptive intent that is imputed to plaintiff. 

Guillory v. Shinseki, No. 09-7117, involved a challenge to the United States Court of Appeals for Veterans Claims' affirmance of the Board of Veterans' Appeals' finding of no clear and unmistakable error in a regional office decision as well as dimissal of veteran's claims for increased compensation for lack of jurisdiction.

Because the onset and severity of the seizure disorder are questions of fact beyond this court's jurisdiction for review, claimant's challenge to the ruling on the seizure disorder is dismissed. However, the Veterans Court's decision is reversed and remanded with respect to the claim arising from the loss of the use of both buttocks and the right left trunks through the knee as its jurisdictional determination is erroneous. 

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IP Matters Involving Surgical Devices and ADHD Treatment Method

Medtronic Navigation, Inc. v. Brainlab Medizinische Computersysteme GMBH, No. 09-1058, involved an appeal by plaintiff and counsel in a patent infringement action concerning defendant's accused devices, which are image-guided surgical navigation devices that use an array of cameras to detect the position of surgical instruments through triangulation, as well as three other patents.  In reversing an order awarding attorney fees, costs, expenses, and interest in an amount over $4 million in favor of the defendants, the court held that the district court committed clear error in finding this case to be exceptional under section 285.  Furthermore, plaintiff's counsel's use of the FDA submission evidence was not sufficiently egregious to justify the imposition of sanctions under the court's inherent authority.

ALZA Corp. v. ANDRX Pharm., LLC., No. 09-1350, involved a challenge to the district court's finding of noninfringement in plaintiff's patent infringement suit, involving methods for treating ADHD through a methylphenidate drug dosage that has an ascending releas rate over an extended period of time.  The court affirmed the decision as the asserted claims are invalid for lack of enablement under 35 U.S.C. section 112. 

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Veterans Matter, Uruguay Round Agreement Act Issue

Butler v. Shinseki, No. 09-7066, concerned a challenge to the decision of the United States Court of Appeals for Veterans Claims denying petitioner's request for earlier effective dates for various service-connected foot disabilities.  Because factual findings of when a disability was claimed or service connection established are not subject to review by the Federal Circuit, the denial is affirmed.  Furthermore, these unreviewable factual findings appear to provide an independent basis for the Veterans Court decision.

Thyssenkrupp Acciai Speciali Terni S.P.A. v. US, No. 09-1363, concerned a challenge to a decision of the United States Court of International Trade that the Department of Commerce reasonably interpreted section 129 of the Uruguay Round Agreement Act in declining to correct an alleged clerical error in the original investigation that was not raised in the World Trade Organization dispute settlement proceeding.  The Court of International Trade's decision is ultimately affirmed as the court properly applied the Chevron framework to its analysis of Commerce's interpretation of the statute. 

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In Chambers v. Dep't of the Interior, No. 09-3120, the Federal Circuit faced a challenge to the decision of the Merit Systems Protection Board, affirming petitioner's removal from her position as the Chief of the United States Park Police, allegedly due to certain conversations she had with a member of the United States House Representative and a reporter from the Washington Post regarding the underfunding of the U.S. Park Police, which was later published. 

Although the charges 3, 5 and 6 are affirmed, the Board's decision to sustain charge 2 is reversed and remanded for reconsideration of whether removal remains a reasonable penalty and whether the agency has presented clear and convincing evidence that it would have taken the same personnel actions against petitioner based on the sustained charges in the absence of her protected disclosures.

ClearPlay, Inc. v. Abecassis, No. 09-1471, concerned a patent license agreement dispute arising from an underlying patent infringement suit involving patents related to systems for filtering objectionable content from certain video media, such as DVDs.  However, the appeal of the district court's order granting the preliminary injunction to plaintiff is transferred to the Eleventh Circuit for lack of jurisdiction as it appears that the district court had jurisdiction over the case based on diversity of citizenship and an appeal to the Eleventh Circuit would have been proper when the appeal was taken to this court. 

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Decision Involving Golf Club Inventorship Claim Against Nike

Gillig v. Nike, Inc., No. 09-1415, involved a suit against Nike, Inc. alleging inventorship claims of various patents relating to golf clubs owned by Nike and that Nike had misappropriated trade sefrets involving golf club technology.

Although the court affirmed the district court's holding that the trade secret claims are barred by statute of limitations, the district court's dismissal of Gillig's inventorship claims are reversed as res judicata in general does not bar the claims, as a dismissal on the ground that the plaintiff is not a real party in interest should not preclude a later action by the real party in interest.  Furthermore, the "control of litigation" exception to establish privity between Triple Tee and Gillig does not apply here.  Lastly, to the extent that Triple Tee is asserting an inventorship correction claim based on a later 2005 asssignment from Gillig, there is no bar.

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Denial of Veteran's PTSD Claim and an IP Matter

Harari v. Holllmer, No. 09-1406 involved a challenge to the Board of Patent Appeals and Interferences' dismissal of a junior party inventor from the interference.  Because Board erred in its determination that the junior inventor's claims were unpatentable for lack of written description due to an insufficient incorporation by reference statement, the dismissal is reversed and remanded.

In Arzio v. Shinseki, No. 09-7107, the Federal Circuit faced a challenge to the U.S. Court of Appeals for Veterans Claims' affirmance of the Board of Veterans' Appeals' denial of petitioner's claim for disability compensation for post-traumatic stress disorder (PTSD).  Because the plain language of section 3.304(f) mandates that a veteran provide credible supporting evidence of an in-service stressor in order to show service connection for PTSD, the denial is affirmed.  Furthermore, the statute's specific requirements take precedents over the general principles related to service connection set forth in section 3.303.

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Today, the Federal Circuit decided two intellectual property matters involving trademark related to toys and games and Verizon's patent infringement suit, and an anti-dumping matter involving importation of warm-water shrimp.

Crash Dummy Movie, LLC v. Mattel, Inc., No. 09-1239, concerned an appeal of the Trademark Trial and Appeal Board's decision sustaining Mattel Inc's challenge to the Crash Dummy Movie, LLC's (CDM) application to register the CRASH DUMMIES mark for a line of games and playthings.  Because substantial evidence supports the Board's finding that Mattel intended to resume use of the mark during the period of non-use, the Board correctly concluded that CDM may not register the mark, CRASH DUMMIES.

Verizon Serv. Corp. v. Cox Fibernet Virginia, Inc., No. 09-1086 involved Verizon's patent infringement suit against Cox Fibernet Virginia, Inc. involving several of its patents related to packet-switched technology which increases the efficiency of the underlying network over traditional circuit switching.  The court affirmed the judgment of the district court's finding of non-infrigement, including the denial of Verizon's motion for a new trial on all issues based on defendant's allegedly improper arguments regarding claim scope and the denial of both parties' motions for JMOL of validity or invalidity.

Gallant Ocean (Thailand) Co., Ltd. v. US, No. 09-1282, concerned a challenge to the Court of International Trade's affirmance of the United States Department of Commerce's decision to apply an adverse facts available (AFA) rate of 57.64% against a Thai exporter of frozen warmwater shrimp.  However, because substantial evidence does not support the unreasonable high rate, which did not and does not represent commercial reality, the decision is vacated and remanded. 

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IP Matter Involving Suit Against US Under Invention Secrecy Act

Hornback v. US, No. 09-1543 the Federal Circuit faced a challenge to the district court's dismissal of plaintiff's suit seeking compensation for the government's use of his invention, titled "Real Time Boresight Error Slope Sensor." 

As stated in the decision: "Section 183 provides for damages to be paid to patent holders in two situations: when the government wrongfully uses the patented device during the period of secrecy, and when the secrecy order itself causes damages."

Thus, in affirming the dismissal of the claim for failure to state a claim, the court held that the Invention Secrecy Act, 35 U.S.C. section 1983 does not provide plaintiff with a cause of action for the government's use of an invention subject to a secrecy order after the issuance of a patent on that invention. 

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IP Matters, Including Drug Maker's Counterclaim Under Hatch-Waxman

Novo Nordisk A/S v. Caraco Pharm. Labs., Ltd., No. 10-1001 concerned an action brought under the Drug Price Competition and Patent Term Restoration Act of 1984, as amended by the Medicare Prescription Drug Improvement and Modernization Act of 2003 (Hatch-Waxman Act), arising from Novo Nordisk's patent infringement action against a generic drug manufacturer involving the drug repaglinide under the brand name Prandine. 

The Hatch-Waxman Act authorizes a counterclaim by a generic manufacturer only if the listed patent does not claim any approved methods of using the listed drug, and the terms of the counterclaim provision do not authorize an order compelling the patent holder to change its use code narrative.  Therefore, defendant does not have a statutory basis to assert a counterclaim requesting injunctive relief and district court's grant of summary judgment in favor of defendant and its injunction order directing Novo Nordisk to request the FDA to replace its patent use code U-968 for Prandin in the Orange Book with the former U-546 listing is reversed and vacated.

In re Suitco Surface, Inc., No. 09-1418 involved a challenge to the decision of the PTO rejecting certain claims of '514 patent directed to floor finishing material for use on athletic courts, bowling alleys, and other floor surfaces, as anticipated during a reexamination proceeding.  However, because the PTO based its rejection on its unreasonable construction of the phrase "material for finishing the top surface of the floor," the decision is vacated in part.  With respect to its "uniform" limitation, PTO's decision is affirmed as its finding is supported by substantial evidence. 

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Decisions in IP Matters, Including Nintendo's Video Controller

In re Mighty Leaf Tea, No. 09-1497, involved a challenge to the decision of the Trademark Trial and Appeal Board affirming the refusal of plaintiff's application to register the mark, ML, in a standard character form, for use with certain personal care and skin care products.  In affirming the denial, the court held that the customer confusion is likely between plaintiff's ML and ML MARK LEES when used on nearly identical goods. 

Anascape, Ltd. v. Nintendo of Am., Inc., No. 08-1500, concerned a challenge to the distrrict court's award of damages, and judgments of validity and infringement on the ground that certain Nintendo video game controller infringed certain claims of plaintiff's '700 patent.  However, because plaintiff's '700 claims are not entitled to the '525 filing date of July 5, 1996, the district court's judgment of validity and infringement cannot stand and is thus reversed. 

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Decision in a Vaccines Case Involving Sudden Infant Death Syndrome

Doe v. Sec'y of Health & Human Serv., No. 09-5096, involved a challenge to the decision of the U.S. Court of Federal Claims upholding the special master's denial of claimant's request for compensation on the ground that the claimants failed to prove that their daughter's death was caused by hepatitis B vaccination. 

In affirming the denial of compensation, the court concluded that the claimants failed to meet their burden of proving that their daughter's death was caused by the vaccine as the special master's factual findings were not arbitrary or capricious and did not commit legal error in considering evidence of Sudden Infant Death Syndrome, as an alternative cause, as there is nothing in the Vaccine Act that prohibits the government from presenting evidence that plaintiff's death or injury was due to factors unrelated to the vaccine. 

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MBO Lab., Inc. v. Becton, Dickinson & Co., No. 08-1288, involved a patent infringement suit relating to a patent design for a hypodermic safety syringe.  In rejecting the plaintiff's claim that the district court erred in holding that RE '885 claims 27, 28, 32, and 33 violate the rule against recapture, the court held that under step 2 of the three-step recapture test, the plaintiff violated the rule against recapture by claiming relative movement between the guard body and needle in the '885 patent.  However, the district court's invalidation of all other claims is reversed and the matter is remanded to address defendant's motion for summary judgment of non-infringement on claims 13, 19, and 20 as the district court erred in holding the entire RE '885 patent invalid.

SiRF Tech., Inc. v. Int'l Trade Comm'n, No. 09-1262 concerned a challenge to the International Trade Commission's finding that the defendants violated section 337 of the Tariff Act of 1930 through the unlawful importation, sale for importation, and sale after importation of certain Global Positioning System devices and products containing these devices that infringe certain patents owned by Global Locate Inc.  In affirming the decision of the Commission, the court held that there is substantial evidence to support the finding that Global Locate had standing to assert the '346 patent and that the Commission did not err in concluding that the defendant directly infringed certain claims of '651 patent and the '000 patent.  Lastly, the court held that the claims at issue are properly directed to patentable subject matter as they explicitly require the use of a GPS receiver and could not be performed without the use of such a receiver.

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In Bid for Position LLC v. AOL, LLC, No. 2009-1068, the circuit court addressed an appeal in a patent infringement suit against defendants Google and AOL involving a patent describing a method for conducting a continuous auction, such as a consumers' auction on the internet for goods or services, or a vendors' auction for positions in an internet advertising display.

The court upheld a final judgment of noninfringement in favor of defendants as there was no error in finding noninfringment by Google's internet advertising system, AdWords, which runs continuous auctions to determine the placement of advertisements on Google's search results pages.   

Vanderbilt Univ. v. Icos Corp, No. 2009-1258 was a patent action brought by Vanderbilt University against defendant claiming that certain Vanderbilt scientists should be added as joint inventors on two patents involving compounds and methods for treating erectile dysfunction. A ruling against the university was affirmed as: 1) the district court correctly concluded that the school failed to establish by clear and convincing evidence its claim of joint inventorship; and 2) although the district court opinion contains some erroneous statements regarding the law of joint inventorship and a misunderstanding of the relevance of American BioScience to the facts of this case, such errors do not affect the outcome of the appeal and were harmless in context.   

In Nucor Corp. v. US, No. 2009-1234, the circuit court dealt with a ruling affirming the International Trade Commission's (ITC) second sunset review determination concerning antidumping and countervailing duty orders on corrosion-resistant carbon steel products from Australia, Canada, France, Germany, Japan, and Korea. The circuit court upheld the decision finding that the ITC has discretion to consider the likely differing conditions of competition among the subject imports in deciding whether to cumulatively assess their volume and effect under 19 U.S.C. section 1675a(a)(7).   

Last, Yorkey v. Diab, No. 2008-1577, was an appeal involving a patent and patent application claiming inventions for measuring the concentration of oxygen in blood. A decision of the Board of Patent Appeals and Interferences against appellant was affirmed in part and reversed in part since: 1) a motion seeking invalidity of various claims of appellees' patent was properly denied as the asserted claims of appellees' application meet the written description requirement of section 112; but 2) the Board erred in finding that appellant failed to establish a prima facie case of actual reduction to practice.   

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Waters v. Shinseki, No. 09-7071, involved a challenge to the United States Court of Appeals for Veterans Affairs' dismissal of petitioner's action challenging the Department of Veterans Affairs refusal to give him a medical examination to aid it in determining whether his medical disability during military service had a causal relationship to the different medical disabilities he suffered after his service.

In addressing the petitioner's assertions to support his claim of a nexus between his military illness and his present medical problems, the court rejected petitioner's interpretation of the Veterans Court's ruling as holding that establishing such a nexus necessarilly requires medical evidence.  Thus, the court affirmed the dismissal of petitioner's claim and rejected his argument that medical examinations are to be automatically provided to all veterans in disability cases involving nexus issues.

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Deseado Int'l., Ltd. v. US, No. 09-1355, involved a challenge to the Court of International Trade's affirmance of Department of Commerce's refusal to consider a Hong Kong based company's contention that a 1986 antidumping duty order covering petroleum wax candles from China does not cover the candles it exported to the U.S.

However, in affirming the dismissal of plaintiff's claim that the order does not cover its candles containing less that fifty percent petroleum wax, the court held that plaintiff's failure to participate and litigate in the anticircumvention proceeding its contention precluded it from litigating the issue in Commerce's eighth annual review or before the Court of International Trade. 

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Decisions in Patent Infringement Cases Involving Medical Devices

Innovative Therapies, Inc. v. Kinetic Concepts, Inc., No09-1085, involved a district court's dismissal of plaintiff's declaratory judgment action involving patents related to medical devices for treatment of chronic wounds.  In affirming the district court's dismissal on the ground of absence of an actual controversy within the contemplation of the Declaratory Judgment Act, the court agreed that plaintiff's supplemental complaint did not establish an actual controversy at the time of the original pleading and that jurisdiction based on subsequent events did not relate back to the filing date of the initial complaint.  Furthermore, there is no abuse of discretion in the district court's decision to dismiss the action based on facts and circumstances of the case.

Hearing Components, Inc. v. Shure Inc., No. 09-1364, concerned a patent infringement action involving patents related to hearing aid ear piece devices.  The court reversed the district court's conclusion that claims 1 and 2 of plaintiff's '920 patent are indefinite and also reversed the district court's grant of JMOL that defendant's straight-nozzled products do not infringe.  However, the court affirmed the district court's denial of JMOL that defendant's barbed-nozzled products infringe.  Finally, the court held that the district court correctly denied JMOL and upheld the jury's verdict of nonobviousness as legally permissible and supported by substantial evidence and in determining that laches did not apply. 

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