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Vectura Limited v. GlaxoSmithKline LLC et al. Docket No. 2020-1054 (http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-1054.OPINION.11-19-2020_1688174.pdf) PROST, BRYSON, WALLACH November 19, 2020 Brief Summary:  DC finding that GSK’s inhaler composition infringe Vectura’s patent and the ~$90 million damages award affirmed. Summary:  GSK appealed jury finding it infringed Vectura’s US 8,303,991 directed to “[c]omposite active particles for use in a pharmaceutical composition for pulmonary administration” that include magnesium stearate, and the damages award.  Vectura alleged infringement by GSK’s Ellipta-brand inhalers (the Breo, Anoro, and Incruse devices) and awarded almost $90 million in damages (3% royalty on $2.99 billion in sales).  GSK’s “accused inhalers feature[]…
C. R. Bard, et al. v. AngioDynamics, Inc. Docket No. 2019-1756, -1934 (http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1756.OPINION.11-10-2020_1683097.pdf) REYNA, SCHALL, STOLL November 10, 2020 Brief Summary:  DC erroneously granted JMOL based on expert mistake and conclusion that printed matter made claims patent ineligible under section 101. Summary:  Bard appealed DC grant of judgment as a matter of law (JMOL) that the claims of three patents related to assemblies “for identifying a power injectable vascular access port” using “identifiable features” including a “radiographic marker perceivable via x-ray” were not infringed and invalid under section 101 for being directed to printed matter.  Dependent claims require…
SIPCO, LLC v. Emerson Electric Co. Docket No. 2018-1635 (CBM2016-00095) O’MALLEY, REYNA, CHEN September 25, 2019 Update (11/17/20):  FC panel explained that SCOTUS’ 2020 Thryv decision “makes clear that the threshold determination that SIPCO’s ‘842 patent qualifies for CBM review is a decision that is non-appealable under 35 U.S.C. 324(e)” and affirmed the Board’s unpatentability decision without reaching the Board’s decision of patent ineligibility (section 101) decision. (Decision:  http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1635.OPINION.11-17-2020_1686726.pdf) Brief Summary:  PTAB determination of CBM eligibility reversed since, e.g., “SIPCO’s claims combine certain communication elements in a particular way to address a specific technical problem” (not a CBM case…
Donner Technology, LLC v. Pro Stage Gear, LLC Docket No. 2020-1104 (IPR2018-00708) (http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/20-1104.OPINION.11-9-2020_1682293.pdf) PROST, DYK, HUGHES November 9, 2020 Brief Summary:  Board IPR decision vacated and remanded as it “failed to properly identify and compare the purposes or problems” of the patent and the alleged analogous prior art. Summary:  Donner appealed USPTO (“Board”) rejecting its IPR challenge of Pro Stage’s US 6,459,023 relating to guitar effects pedalboards, finding the alleged prior art US patent (“Mullen”) not to be analogous art.  The FC panel opinion explains that the ‘023 patent “explained that there was…a need for ‘an improved pedal…
Chevron U.S.A. Inc. v. University of Wyoming Corp. et al. Docket No. 2019-1530 (http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1530.OPINION.11-4-2020_1680467.pdf) NEWMAN, LOURIE, SCHALL November 4, 2020 Brief Summary:  Board interference decision finding UW to be senior party affirmed based on proper claim construction. Summary:  Chevron appealed USPTO (“Board”) interference decision finding UW to be the senior party regarding the claimed subject matter of US 8,367,425 since Chevron was unable to show a sufficiently early “corroborated conception coupled with diligence”.  The FC panel explained that Chevron presented it “only one, narrow issue:  whether the Board erred in its construction of the limitation ‘gradually and continuously…
Corcamore, LLC v. SFM LLC Docket No. 2019-1526 (http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/19-1526.OPINION.10-27-2020_1675813.pdf) PROST, REYNA, TARANTO October 27, 2020 Brief Summary:  SFM found to have standing to bring trademark cancellation request against Corcamore’s SPROUTS registration in connection with vending machines in view of SFM’s registration for retail grocery stores (e.g., “reasonable believe of damage”). Summary:  Corcamore appealed USPTO Board decision granting SFM’s request to cancel Corcamore’s SPROUTS registration in connection with vending machines in view of SFM’s registration of SPROUTS regarding retail grocery stores.  Corcamore argued the Board erred in applying the FC’s “analysis in Empresa Cubana, instead of the analytical framework…
TecSec, Inc. v. Adobe Inc., et al. Docket No. 2019-2192, -2258 PROST, REYNA, TARANTO October 23, 2020 Brief Summary:  DC incorrectly excluded evidence of induced infringement (“subjective bad faith”) but correctly found patent eligibility (“directed to improving a basic function of a computer”). Summary:  TecSec appealed DC finding direct infringement of its US 5,369,702; 5,680,452; 5,717,755; and 5,898,781 (“DCOM patents”, expired in October 2013) relating to multi-level security systems and its reduction of the jury’s damages award ($1.75 million) “to zero on the ground that there was no proof of any damages from direct infringement and the jury had rejected…
St. Jude Medical, LLC v. Snyders Heart Valve LLC (USPTO as Intervenor) Docket No. 2019-2108-9, -2140 (IPR2018-00105-00106) PROST, REYNA, TARANTO October 15, 2020 Brief Summary:  Board anticipation finding of certain claims reversed based on FC panel’s revised claim construction (claims “interpreted with an eye toward giving effect to all terms in the claim”). Summary:  St. Jude appealed Board IPR-105 and IPR-106 final written decisions (FWDs) finding St. Jude had not established unpatentability (anticipation) of some of the challenged claims of SHV’s US 6,540,782 directed to an artificial hear valve and system for inserting the valve.  In IPR-105, “the Board essentially…
Immunex Corp. v. Sanofi-Aventis U.S. LLC et al. (USPTO as Intervenor) Docket No. 2019-1749, -1777 (IPR2017-01879, -01884) PROST, REYNA, TARANTO October 13, 2020 Brief Summary:  Immunex appealed two IPR final written decisions (FWDs) invalidating the challenged claims of US 8,679,487 directed to human anti-IL4R antibodies (“”[a]n isolated human antibody…wherein the light chain…comprises the amino acid sequence of SEQ ID NO:10 and the heavy chain…comprises the amino acid sequence of SEQ ID NO:12”).  The FC panel opinion explains that “[t]his appeal concerns what ‘human antibody’ means in this patent…must a ‘human antibody’ be entirely human?  Or may it also be ‘partially…
GlaxoSmithKline LLC, et al. v. Teva Pharmaceuticals USA, Inc. Docket No. 2018-1976, -2023 PROST, NEWMAN, MOORE October 2, 2020 Brief Summary:  GSK appealed DC judgment of a matter of law (JMOL) finding no induced infringement of RE40,000 by Teva’s Coreg® (carvedilol) ANDA.  GSK’s RE40,000 issued on Jan. 8, 2008 following reexamination of US 5,760,069 (issued in 1998) directed to “[a] method of decreasing mortality caused by congestive heart failure”, RE’000 adding the limitation “wherein the administering comprises administering to said patient daily maintenance dosages for a maintenance period to decrease a risk of mortality caused by congestive heart failure, and…
Network-1 Techs., Inc. v. Hewlett-Packard Co. et al. Docket No. 2018-2338-39, -2395-96 PROST, NEWMAN, BRYSON September 24, 2020 Brief Summary:  DC claim construction affirmed and reversed (“ordinary meaning”); joinder rule did not prevent HP from raising new obviousness arguments that could have been raised during IPR; no improper broadening during reissue. Summary:   Network-1 appealed DC finding that HP does not infringe US 6,218,030 relating to methods for “remotely powering access equipment in a data network” and the DC’s construction of the claim terms “low level current” and “main power source”.  HP cross-appealed the DC’s finding that Network-1 did not improperly…
Biogen MA Inc. v. EMD Serono, Inc. et al. (Pfizer Inc., Bayer, Novartis) Docket No. 2019-1133 NEWMAN, LINN, HUGHES September 28, 2020 Brief Summary:  DC instructed to reinstate jury verdict of invalidity for anticipation of Biogen’s IFN-b method of treatment claims that include product-by-process limitations (e.g., “an old method of administration of an old product made by a new process is not novel and cannot be patented”). Summary:   Serono appealed DC judgment as a matter of law (“JMOL”) ruling Biogen’s claims (US 7,588,755) directed to methods of treatment using recombinant interferon b (“IFN- b”, sold as Rebif for multiple sclerosis…
Siemens Mobility, Inc. v. USPTO Docket No. 2019-1732, -1752 (IPR2017-01669, -02044 LOURIE, MOORE, O’MALLEY September 8, 2020 Non-precedential Brief Summary: Board IPR claim construction and obviousness conclusions affirmed (e.g., insufficient evidence nexus between claims and secondary considerations (license agreements)). Summary: Siemens appealed two IPR final written decisions (FWDs) holding certain claims of US 6,609,049 and US 6,824,110 directed to methods and systems for automatically activating a train warning device unpatentable for obviousness. The method claims included “maintaining a database of locations…and corresponding regulations”, “obtaining a position of the train” (and speed in ‘049 claims), “select[ing] a next upcoming location”, “determining…
Egenera, Inc. v. Cisco Systems, Inc. Docket No. 2019-2015, -2387 PROST, REYNA, STOLL August 28, 2020 Brief Summary: DC claim construction affirmed; refusal to allow Egenera to correct inventorship vacated/remanded (“AIA did not narrow the meaning of ‘error’”). Summary: Egenera appealed DC claim construction of the claims of US 7,231,430 relating to enterprise server systems and application of judicial estoppel to prevent Egenera from relisting an inventor delisted during a copending IPR proceeding, leading to its holding of invalidity for failing to name all inventors. Egenera argued the DC misconstrued the “logic to modify” limitation (“at least one control node…
Baxalta, Inc. et al. v. Genentech, Inc. et al. Docket No. 2019-1527MOORE, PLAGER, WALLACH August 27, 2020 Brief Summary:  DC non-infringement finding vacated and remanded due to erroneous construction of “antibody” and “antibody fragment”. Summary:    Baxalta appealed DC judgment based on its construction of “antibody” and “antibody fragment” for US 7,033,590.  Baxalta alleged Genetech’s Helibra (emicizub-kxwh) bispecific antibody for treating hemolphilia infringed the ‘590 claims.  Claim 1 of the ‘590 patent is directed to “[a]n isolated antibody or antibody fragment thereof that binds Factor IX or Factor IXa and increased the procoagulant activity of Factor IXa” while dependent claims 4…
Phytelligence, Inc. v. Washington State University Docket No. 2019-2216 PROST, REYNA, STOLL August 27, 2020 Brief Summary: DC grant of SJ to WSU affirmed since option agreement was “an unenforceable agreement to agree”, not an “agreement with open terms” that could be deciphered by the court. Summary: Phytelligence (“PT”; in receivership) appealed DC grant of summary judgment (SJ) in favor of WSU regarding sale and delivery of a specific type of apple tree (WA 38) and infringement of its COSMIC CRISP trademark. In 2012, PT and WSU entered into a Propagation Agreement that “forbid [PT] from selling WA 38 trees…