Intellectual Property Law News - Federal Circuit
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It's been a while since we covered the Federal Circuit, and they have busy little bees indeed, publishing 13 precedential opinions since September 9. Today, we bring you a patent infringement case involving Apple's FaceTime technology.

The U.S. District Court for the Eastern District of Texas -- every patent litigant's favorite venue -- determined that FaceTime infringed on several valid patents held by VirnetX, awarding it a total of $368 million. (VirnetX is considered a patent troll, reported Ars Technica back in June.)

VirnetX purchased patents that allow secure communication links between a computer and a target network address. Apple was alleged to have infringed on this patent through its FaceTime technology, which allows video calls over a secure connection. Part of the technology involves creating a secure VPN tunnel "on demand," something that the plaintiffs had already patented.

Those of us deeply nerded into patent litigation -- and let's face it, if you're reading this now, that's you -- were pleased and surprised when the U.S. Supreme Court decided Alice Corp v. CLS Bank International last term. With Alice, the Court said that taking an obvious, otherwise non-patentable idea and adding "on a computer" to the end of it doesn't suddenly make it patentable. In Alice, that was a calculation of risk in a financial transaction, something Justice Thomas said has been around forever.

Post-Alice, the nerds (you know, you and me) hoped and prayed that the decision signaled the end of "patent trolls" that claimed a right to inventions only because the person filing the patent did little more than take a universal concept and make software out of it. From the Federal Circuit, here comes the first post-Alice appeal to invoke Alice.

Does a data connection have to be completely established before it can transmit data? You'd think so, and if you didn't, you'd have lost a $147 million jury award and be out about $200,000 in court costs.

A company called mFormation Software Technologies (MST) claimed that BlackBerry infringed its patent to "the wireless activation and management of an electronic device without the need to have physical access to the device" -- in this case, basically remotely deleting the contents of the phone.

Following the Federal Circuit's 2011 opinion in Therasense Inc. v, Becton, Dickinson & Co., the "inequitable conduct" defense -- described by one Quinn Emanuel article on the subject as "the 'atomic bomb' of patent law" -- became much harder to invoke.

Last week, the Federal Circuit proved that news of its death had been greatly exaggerated, as it used inequitable conduct to invalidate a plaintiff's patent.

The Federal Circuit on Monday rejected a plea by a well-known patent troll to remain in federal court. MPHJ Technology purported to own the patents to scan-to-email technology. It sent demand letters to small businesses that use scan-to-email in their copy machines (which is to say, all of them) asking for license fees in the amount of $1,000 per employee, Ars Technica reported last year.

The State of Vermont had it up to here with MPHJ demanding license fees from Vermont corporations and nonprofits, so it filed a lawsuit in state court, alleging unfair and deceptive trade practices.

June's U.S. Supreme Court decision in Alice Corp. v. CLS Bank International struck a blow to software patents -- or at least the ones that didn't make any sense in the first place. To briefly recap: The Court invalidated a patent for a very generic, unpatentable abstraction whose only claim to patentability was that the abstract concept had been reduced to a computer program. The Court unanimously declared that merely attaching the words "on a computer" doesn't transform an unpatentable idea into a patentable one.

Where does that leave the venerable Federal Circuit, which has always been loath to invalidate a patent?

A lawsuit about an insomnia medication has kept lawyers awake at night for the last five years. Who would have thought?

Tyco Healthcare manufactures Restoril, an insomnia medication. The patent covers formulations of Restoril with a particular surface area. Its competitor, Mutual Pharmaceutical, wanted to make a generic version of Restoril with a larger surface area. Tyco sued for patent infringement, but a district court agreed with Mutual, finding that a generic version of Restoril with a larger surface area couldn't possibly infringe on Tyco's patent. It also ultimately invalidated Tyco's patent, which it acquired from another company, as being prior art.

After that lawsuit didn't work, Tyco filed a citizen petition with the FDA, urging it to reconsider its guidelines for generic makers of Restoril -- and conveniently, those guidelines suggested that the same larger surface area that Mutual wanted to manufacture shouldn't be approved for use. For safety, you know. The FDA denied the petition, which "reli[ed] entirely on uncorroborated generalities and theoretical speculation." Mutual then counterclaimed that Tyco was engaging in "sham" litigation and antitrust behavior to keep Mutual from selling generic Restoril.

For 17 years, two companies -- one American, the other Cuban -- have fought over who owns the U.S. trademark to the venerable Cohiba cigar brand. Both Cubatabaco, the original Cuban manufacturer of Cohiba cigars, and the U.S.-based General Cigar Co. claim a right to the trademark.

Last year, the U.S. Trademark Trial and Appeal Board (TTAB) granted summary judgment in favor of General Cigar on the issue of Cubatabaco's standing to General Cigar's trademark. But last month, the Court of Appeals for the Federal Circuit reversed.

Patent trolls have a bad rap, understandably so, and recently the Federal Circuit ruled against a patent troll whose actions were described as "unethical to say the least," by one print media consultant.

The Federal Circuit brings to a close litigation that the troll brought against the likes of Xerox, EFI, Konica Minolta, Fujifilm and Ricoh.

Alice Corp. v. CLS Bank International was one of the most anticipated patent decisions this term, as companies and attorneys alike, were eager to see how the Supreme Court would determine the fate of software patents.

And all that waiting with bated breath was for naught. Instead, the Court gave us a ruling that did little to change the existing legal landscape.