Federal Circuit: May 2010 Archives
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May 2010 Archives

Decisions in IP Matters, Plus Antidumping Case

In KYD, Inc. v. US, No.09-1366, the Federal Circuit faced a challenge to a decision of the Court of International Trade affirming the Department of Commerce's antidumping duty rate determination for polyethylene retail carrier bags that are manufactured by a Thai company and imported by plaintiff.  In affirming the decision, the court held that substantial evidence supports the antidumping margin assessed against plaintiff, and that the AFA dumping margin determined in accordance with statutory requirements is not a punitive measure.  Furthermore, the court held that the plaintiff does not point to any statute or regulation that would entitle independent importers to a different assessment rate from the rate for importers that are affiliated with the foreign producer/exporters of the goods they import.     

Leviton Mfg. Co., Inc. v. Universal Sec. Instruments, Inc., No. 09-1421, concerned a challenge to the district court's award of attorney fees and costs to plaintiff based on inequitable conduct and vexatious litigation in a patent infringement suit.  In vacating the judgment, the court held that genuine issues of material fact exist that preclude summary judgment for inequitable conduct, and that the district court clearly erred by finding that defendant engaged in vexatious litigation by raising frivolous work-product objections. 

Dow Jones & Co., Inc. v. Ablaise Ltd., No.09-1524,  concerned a patent infringement suit, directed to methods for using a Web server to send individualized content and formatting instructions in the form of Web pages.  In affirming in part, the court held that the district court's grant of summary judgment of invalidity of the '737 patent is correct on grounds of obviousness under the prior art in view of general knowledge in the field.  However, the district court's denial of defendant's motion to dismiss Dow Jones' invalidity claim against one patent is reversed as a covenant not to sue proffered by defendant extinguishes the controversy between the parties and divests the district court of its Article III jurisdiction. 

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Fujifilm Corp. v. Benun, No. 09-1487, concerned a patent infringement suit involving Fujifilm's patents directed to single-use cameras, or lens fitted film packages (LFFP), arising from defendant's conduct of purchasing used LFFPs and selling them as new after refurbishing them. The court ultimately affirmed the judgment of the district court, including denial of defendants' post trial motion for JMOL based on noninfringement of a particular brand of LFFPs and inapplicability of a first sale's location, plus a ruling holding defendants in contempt of a preliminary order enjoining importation of infringing LFFPs.  

Hubbard v. Merit Sys. Prot. Bd., No. 09-3242, concerned a challenge to the judgment of the Merit Systems Protection Board dismissing an appeal from the Office of Personnel Management's (OPM) denial of an application for federal employee's disability retirement annuity benefits. The court affirmed the judgment in concluding that, petitioner's failure even to respond to an administrative judge's order directing her to "file evidence and argument demonstrating that the appeal was timely filed or that good cause exists for the delay" justified the administrative judge's dismissal of the appeal as untimely. 

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In Vizio, Inc. v. Int'l Trade Comm'n, No. 09-1386, the Federal Circuit faced a challenge to the final determination of the International Trade Commission that the importation and sale of certain digital television products violated section 337 of the Tariff Act based on its finding that the accused products infringed a particular patent.  In affirming in part, the court held that the Commission's construction of the term "channel map information" is correct and also, that the Commission correctly concluded that defendants failed to sustain their burden of proving that the asserted claims are invalid.  However, the court reversed the Commission's determination that the "work-around products" infringe as the Commission erred in its finding that the claims do not require that the channel map information be capable of being used.  

Deere & Co. v. Int'l Trade Comm'n, No. 09-1016, concerned a challenge to the judgment of the International Trade Commission finding that the sales of European version self-propelled John Deere forage harvesters in the U.S. by intervenors did not violate section 337 of the Tariff Act.  In vacating the decision, the court held that, although the Commission's determination that the sales of the European-version harvesters in the U.S. by official Deere dealers were authorized is supported by substantial evidence, the Commission improperly applied the "all or substantially all" test.     

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Gaston v. Shinseki, No. 09-7104, concerned a petitioner's claim for an earlier effective date for his award of total disability based on individual unemployability (TDIU).  In affirming the judgment of the United States Court of Appeals for Veterans Claims denying his claim,  the court held that under 38 U.S.C. section 5110(b)(2), a veteran is only entitled to an earlier effective date if an increase in his disability occurred during the year before he filed his claim.     

As the court wrote: "It is clear from the plain language of 38 U.S.C. section 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.  Section 5110(b)(2) first specifies that the effective date of an increase 'shall be the earliest date' that the evidence shows 'an increase in disability had  occurred.' The statute then imposes a condition, permitting the application of this earlier date only 'if application is received within one year from such date."

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In Dorbest Ltd. v. US, No. 09-1257, the Federal Circuit faced a challenge to the Court of International Trade's (CIT) affirmance of the Department of Commerce's calculation of the labor rate in an antidumping duty case relating to wooden bedroom furniture imported from China.  First, the court  invalidated 19 C.F.R. section 351.408(c)(3)  and vacated the portion of the CIT's judgment affirming the Commerce's use of the regulation and remanded with instructions to require Commerce to recalculate the normal value using a method wholly in compliance with 19 U.S.C. section 1677b(c)(4).  Second, the court vacated CIT's decision that required Commerce either to justify using all seven Indian surrogate companies for calculating non-production factors or to eliminate from the calculations the four smallest surrogate companies and remanded with instructions to recalculate the non-production factors using all seven surrogate companies.     

In Orion IP, LLC. v. Hyundai Motor Am., No. 09-1130, the court faced a challenge to the district court's ruling of no unenforceability for inequitable conduct and denial of defendant's motion for judgment as a matter of law and a new trial  in plaintiff's patent infringement suit against Hyundai and other automakers related to a method for assisting a salesperson in selecting appropriate parts corresponding to a customer's particularized need using a computerized system. 

The court reversed the district court's judgment that claims 1,7,and 8 are valid in concluding that these claims are anticipated as a matter of law, and held that no new trial is warranted.  However, the court affirmed the district court's ruling that the '627 patent is not unenforceable due to inequitable conduct.

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In Alfred E. Mann Found. for Scientific Research v. Cochlear Corp., No. 09-1447, the Federal Circuit faced a challenge to the dismissal of plaintiff's patent infringement suit, involving patents for cochlear implants, for lack of standing to sue on the ground that plaintiff's 2004 agreement with a third party (AB) granting an exclusive license to the patents at issue was a virtual assignment of the patents-in-suit. 

As stated in the decision: "While AMF's right to choose to sue an infringer does not vest until AB chooses not to sue that infringer, it is otherwise unfettered.  Once its right to sue an infringer activates, AMF can decide whether or not to bring suit, when to bring suit, where to bring suit, what claims to assert, what damages to seek, whether to seek injunctive relief, whether to settle the litigaiton, and the terms on which the litigation will be settled."

 Thus, in concluding that such a broad right to sue and control litigation is inconsistent with an assignment of the patents-in-suit to the third party, the court reversed the dismissal of the case as plaintiff is the sole owner of the patents-in-suit because it retained substantial rights in the patents, including the right to sue for infringement if the third party declines to do so.  

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Hazlehurst v. Sec'y of Health & Human Serv., No. 09-5128, concerned a petition of the Court of Federal Claims' decision affirming the special master's denial of plaintiffs' claim on behalf of their son, seeking compensation under the National Childhood Vaccine Injury Act of 1986, claiming that the measles, mumps, and rubella (MMR) vaccine, which was administered to their son before his first birthday, caused him to develop regressive autism.

In affirming the decision of the Court of Federal Claims, the court held that compensation under the Act is limited to those individuals whose injuries or deaths can be linked causally, either by a Table Injury presumption or by a preponderance of "causation-in-fact" evidence to a listed vaccine.  Here, the special master's conclusion that petitioners' evidence failed to demonstrate the necessary causal link is correct, as  the petitioners have not identified any reversible error in the special master's decision reaching that conclusion. 

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Decisions in Trademark Cancellation & Exceptional Case Finding

In Fred Beverages, Inc. v. Fred's Capital Mgmt. Co., No. 10-1007, the Federal Circuit dealt with the the decision of the Trademark Trial and Appeal Board (TTAB) denying a motion to leave amend a pending petition in plaintiff's action seeking to cancel a trademark in International Class 32 on the ground of abandonment.  The decision of the TTAB is reversed as its denial of the motion for leave on the grounds that the filing fee did not accompany the motion was arbitrary and capricious.     

Taltech Ltd. v. Esquel Enter. Ltd., No. 09-1344, concerned a supplemental judgment of the district court reinstating its previous judgment, awarding attorney fees and costs under 35 U.S.C. section 285 and post-judgment interest at the rate allowable at the time of the earlier judgment in favor of the plaintiff in the plaintiff's suit against its competitor seeking a declaratory judgment of non-infringement of a patent, which is drawn to seams including thermal adhesive to reduce pucker in garments. 

First, the court held that the district court did not abuse its discretion in finding inequitable conduct as there is no clear error in the materiality or deceptive intent analysis of defendant's failure to disclose the URS.  Next, the court concluded that the district court did not err in finding misrepresentation with respect to the double top-stitch seam.  Lastly, the court concluded that the trial court had ample reasons for concluding that defendant's litigation tactics were abusive.  However, with respect to the post-judgment interest rate, the judgment is reversed as the previous judgment was legally insufficient and the April 10, 2009 judgment and its .58% interest rate applies.     

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Photocure ASA v. Kappos, No. 09-1393, concerned a challenge to the district court's holding that the PTO's denial of petitioner's request for a term extension of a drug product having as its active ingredient the chemical compound, MAL hydrochloride, was not in accordance with law and that the patent on MAL hydrochloride is subject to term extension.  In affirming the judgment the court held that the district court correctly applied 35 U.S.C. section 156 to extend the term of the patented product that is subject to regulatory review.     

Ortho-McNeil Pharm., Inc. v. Lupin Pharm., Inc., No. 09-1362, concerned a challenge to the district court's judgment sustaining the extension of the term of a patent, directed to an enantiomer of a racemic compound that had previously been approved by the FDA, and an order enjoining defendant from infringement during the extended term of the patent.  In affirming the judgment, the court held that the district court correctly ruled that a patent on levofloxacin was properly granted the statutory term extension, for the enantiomer is a different drug product from the racemate ofloxacin, and was subject to regulatory approval before it could be commercially marketed and used.  Furthermore, the court held that the district court did not abuse its discretion in issuing an injunction commensurate with the patent rights of exclusion.     

Patent Rights Prot. Group, LLC v. Video Gaming Tech., Inc., No.09-1391, involved a plaintiff's patent infringement suit, relating to various types of casino-style gaming machines against multiple defendants.  In holding that the district court erred in declining to exercise personal jurisdiction over defendants solely on the basis of reasonableness, and that the court abused its discretion in denying plaintiff's request for jurisdictional discovery, district court's entry of judgment in favor of the defendants is vacated and remanded.

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Decison involving Vaccine Act's statute of limitations

In Cloer v. Sec'y of Health & Human Serv., No. 09-5052, the Federal Circuit faced a challenge to a decision affirming a Chief Special Masters' report denying petitioner's request for compensation under the Vaccine Injury Compensation Program. 

As stated in the decision: "Markovich confirms that, under section 300aa-16(a)(2), in general, a symptom must be recognizable by the medical community at large as constituting a vaccine-related injury.  As this court expressly held, the limitations period begins at the first event objectively recognizable as a sign of a vaccine injury by the medical profession at large."

Thus, the denial of petitioner's request is reversed and remanded as the Vaccine Act's statute of limitations, 42 U.S.C. section 300aa-16(a)(2), does not begin to run where a claimant experiences a symptom of injury, but the medical community at large does not recognize that the symptom is related to a vaccine and the claimant has not received medical information suggesting a connection. 

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Optimum Corp. v. Emcore Corp., No. 09-1265, concerned a patent infringement suit related to methods for improvements in an optical communication system.  In affirming the grant of defendant's motion for summary judgmentthe court held that the defendant did not commit inequitable conduct in obtaining the patents in suit, and thus the the district court correctly ruled that, on plaintiff's version of the facts, it had offered no evidence that could succeed on proving deceptive intent by clear and convincing evidence. 

Robertson v. Timmermans, No. 09-1222, concerned a challenge to the Board's denial of plaintiff's preliminary motions in an interference proceeding before the Board of Patent Appeals and Interferences relating to patents for light-emitting diode replacement tubes for fluorescent light tubes, claiming that defendant's copied claims were unpatentable for lack of written description support as required by 35 U.S.C. section 112.  

However, because the Board erred in construing defendant's claims in view of defendant's disclosure rather than plaintiff's closure, as Agilent Techs., Inc. v. Affymetrix, Inc., 567 F.3d 1366 (Fed. Cir. 2009) held that when a party challenges written description support for an interference count or the copied claim in an interference, the originating disclosure provides the meaning of the pertinent claim language, and as such, the Board's denial is vacated. 

In Prati v. US, No. 08-5117, the court faced a challenge to the Court of Federal Claims' dismissal of the claims  in taxpayers' action for administrative refund claims with the IRS, arising from the IRS' investigation and subsequent issuance of Notices of Final Partnership Administrative Adjustment, relating to a number of limited partnerships managed by a corporation that promoted tax shelter partnerships during the 1980s.

In affirming the Court of Federal Claims' decision, the court held that the statute of limitations issue is a partnership item and the taxpayers were required to raise the limitations issue in the partnership-level proceeding prior to either entering settlement or stipulating to judgment in the Tax Court.  Furthermore, because taxpayers' challenge to the penalty interest assessments is inherently a dispute over the proper characterization of the partnerships' transactions, this is barred by section 7422(h) from being litigated in the refund action before the Court of Federal Claims.     

Rolls-Royce, PLC v. United Tech., Corp., No. 09-1307, concerned a patent interference proceeding, relating to swept fan blades used on turbofan jet engines.  The district court's reversal of the Board's judgment against Rolls-Royce is affirmed as the claims of Rolls-Royce's '077 patent are patentable over defendant's '931 application because the '931 application does not render the '077 patent obvious.     

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In Wyeth Holdings Corp. v. Sebelius, No. 09-1368, the Federal Circuit faced a challenge to the district court's rejection of petitioner's challenge to the FDA's determination of the date on which the approval phase of its phased regulatory review process begins for purposes of calculating patent term extensions, related to an animal drug for the treatment and control of parasites in beef and dairy cattle.  First, the court rejected the petitioner's argument that section 156(g) unambiguously indicates that an application is initially submitted when a sponsor submits its first technical section in concluding that the section 156(g) is ambiguous.  Second, the court held that FDA's interpretation is permissible and that it is not arbitrary and capricious, in affirming the district court's judgment. 

Bright v. US, No.09-5048, involved a putative class action lawsuit, brought by landowners seeking compensation under the Fifth Amendment pursuant to the Tucker Act for the alleged taking of their respective property interests under the National Trail Systems Act, 16 U.S.C. sections 1241-1251.  In reversing the United States Court of Federal Claims' dismissal of the second amended complaint as to all named plaintiff except for one, the court held that when a class action complaint is filed in the Court of Federal Claims and a class certification is sought prior to expiration of the section 2501 limitations period, the limitations period is tolled, and is tolled during the period the court allows potential class members to opt into the class. 

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