Novartis AG v. Torrent Pharmaceuticals, Limited

This is an appeal from the Final Written Decision of the United States Patent and Trademark Office, Patent Trial and Appeal Board (Board) in two consolidated inter partes review (IPR) proceedings of U.S. Patent No. 8,324,283 (the ’283 patent), owned by Novartis AG and Mistubishi Tanabe Pharma Corp. (collectively, Novartis). The Board instituted IPRs on all claims of the ’283 patent based on petitions filed by Torrent Pharmaceuticals Limited, Apotex, Inc. and Mylan Pharmaceuticals Inc. (collectively, Petitioners). After reviewing the claims, receiving extensive briefing, and hearing oral argument, the Board found all original claims of the ’283 patent and Novartis’ proposed substitute claims unpatentable as obvious. See Torrent Pharm. Ltd. v. Novartis AG, Nos. IPR2014-00784, IPR2015-00518, 2015 WL 5719630 (PTAB Sept. 24, 2015) (Final Written Decision). Novartis raises a series of challenges to the Board’s analysis of the evidence and ultimate determination of unpatentability. For the reasons stated below, we affirm.

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Mavrix Photographs, LLC v. LiveJournal, Inc.

Digital Millennium Copyright Act

The panel (1) reversed the district court’s holding, on summary judgment, that the defendant was protected by the safe harbor of the Digital Millennium Copyright Act from liability for posting the plaintiff’s photographs online and (2) vacated a discovery order.

The panel held that the safe harbor set forth in 17 U.S.C. § 512(c) would apply if the photographs were posted at the direction of users. The defendant, a social media platform, posted the photographs after a team of volunteer moderators, led by an employee of the defendant, reviewed and approved them. The panel held that whether the photographs were posted at the direction of users depended on whether the acts of the moderators could be attributed to the defendant. Disagreeing with the district court, the panel held that the common law of agency applied to the defendant’s safe harbor defense. Because there were genuine factual disputes regarding whether the moderators were the defendant’s agents, the panel reversed the district court’s summary judgment and remanded the case for trial. The panel also discussed the remaining elements of the safe harbor affirmative defense. If an internet service provider shows that the infringing material was posted “at the direction of the user,” it must then also show that (1) it lacked actual or red flag knowledge of the infringing material; and (2) it did not financially benefit from infringements that it had the right and ability to control. The panel held that to fully assess actual knowledge, the fact finder must consider not only whether the copyright holder has given notice of the infringement, but also the service provider’s subjective knowledge of the infringing nature of the posts. The panel held that to determine whether the defendant had red flag knowledge, the fact finder would need to assess whether it would be objectively obvious to a reasonable person that material bearing a generic watermark or a watermark referring to the plaintiff’s website was infringing. When assessing the service provider’s right and ability to control the infringements, the fact finder should consider the service provider’s procedures that existed at the time of the infringements and whether the service provider had “something more” than the ability to remove or block access to posted materials.

Finally, the panel vacated the district court’s order denying discovery of the moderators’ identities.

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The Medicines Co. v. Mylan, Inc.

The Medicines Company (“Medicines”) is the owner of U.S. Patent Nos. 7,582,727 (“the ’727 patent”) and 7,598,343 (“the ’343 patent”). In response to an Abbreviated New Drug Application (“ANDA”) submitted by Mylan, Inc. (“Mylan”), Medicines filed suit in the United States District Court for the Northern District of Illinois alleging that Mylan’s ANDA infringed claims 1–3, 7–10, and 17 of the ’727 patent, and claims 1–3 and 7–11 of the ’343 patent. Mylan counterclaimed seeking a declaration that the asserted claims were invalid.

The district court held on summary judgment that the asserted claims of the ’343 patent were not infringed because Mylan did not satisfy the “efficient mixing” limitation of those claims. After conducting a bench trial, the court held that the asserted claims of the ’727 patent were infringed because those claims did not include an “efficient mixing” limitation.

We hold that both the ’727 and ’343 patents include a “batches” limitation that requires batch consistency, which, according to the patents in suit, is achieved through efficient mixing. Efficient mixing is therefore required by the asserted claims of both patents. We further construe efficient mixing as defined by Example 5 of the patents’ specification. We therefore reverse the district court’s judgment of infringement with respect to the ’727 patent, and affirm its summary judgment of noninfringement with respect to the ’343 patent. We do not address the validity of the patents in suit.

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Novartis AG v. Noven Pharmaceuticals Inc.

The instant appeals concern inter partes reviews of U.S. Patent Nos. 6,316,023 (“the ’023 patent”) and 6,335,031 (“the ’031 patent”) (together, “the Patents-inSuit”). In two separate final written decisions, the U.S. Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB”) found that various claims of the Patents-in-Suit (“the Asserted Claims”)1 would have been obvious over the prior art. See Noven Pharm., Inc. v. Novartis AG (Noven I), No. IPR2014-00549, 2015 WL 5782080, at *23 (P.T.A.B. Sept. 28, 2015) (finding the disputed claims of the ’023 patent unpatentable as obvious); Noven Pharm., Inc. v. Novartis AG (Noven II), No. IPR2014-00550, 2015 WL 5782081, at *23 (P.T.A.B. Sept. 28, 2015) (finding the disputed claims of the ’031 patent unpatentable as obvious). The PTAB maintained its findings when asked to reconsider them. See Noven Pharm., Inc. v. Novartis AG (Noven III), No. IPR2014- 00549, 2015 WL 9599194, at *8 (P.T.A.B. Nov. 30, 2015) (denying request to reconsider Noven I); Noven Pharm., Inc. v. Novartis AG (Noven IV), No. IPR2014-00550, 2015 WL 9599195, at *8 (P.T.A.B. Nov. 30, 2015) (denying request to reconsider Noven II). Appellants Novartis AG and LTS Lohmann Therapie-Systeme AG (together, “Novartis”) contest numerous aspects of the Final Written Decisions, including the PTAB’s conclusion that prior judicial opinions did not control its inquiry and the PTAB’s factual findings in support of its obviousness conclusion. We affirm.

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Wasica Finance GMBH v. Continental Automotive Systems, Inc.

These consolidated appeals come to us following two related inter partes review proceedings before the U.S. Patent & Trademark Office’s Patent Trial and Appeal Board (“Board”). Both proceedings involve now-expired U.S. Patent No. 5,602,524 (“the ’524 patent”) owned by Wasica Finance GmbH and Bluearc Finance AG (“Wasica”). The ’524 patent has 21 claims. Claim 1 is the sole independent claim. The first proceeding, IPR2014-00295, arose from a petition filed by Continental Automotive Systems, Inc. (“Continental”) (“the ’295 proceeding”). In the ’295 proceeding, the Board found claims 1–3, 5, 10–19, and 21 of the ’524 patent unpatentable as anticipated or obvious and claims 6–9 and 20 patentable. The Board declined to institute review of claim 4. Cont’l Auto. Sys., Inc. v. Wasica Fin. GmbH, No. IPR2014-00295, 2015 WL 3811738, at *1, *19 (June 17, 2015) (“Continental Decision”). The second proceeding, IPR2014-00476, arose from a petition filed by Schrader-Bridgeport International, Inc., Sensata Technologies Holdings NV, and SI International (TOPCO), Inc. (collectively, “Schrader”) (“the ’476 proceeding”). In the ’476 proceeding, the Board found claims 1–5, 10, 12–19, and 21 of the ’524 patent unpatentable as anticipated or obvious and claims 6 and 9 patentable. The Board declined to institute review of claim 11.1 Schrader-Bridgeport Int’l v. Wasica Fin. GmbH, No. IPR2014-00476, 2015 WL 4500655, at *1, *20 (July 22, 2015) (“Schrader Decision”).

Wasica now appeals those portions of the Board’s decisions in the ’295 and ’476 proceedings finding claims 1– 5, 10–19, and 21 unpatentable. For their part, Continental and Schrader cross-appeal, respectively, those portions of the Board’s decisions in the ’295 and ’476 proceedings finding claims 6–9 and 20 patentable.

For the reasons set forth below, we affirm the decisions of the Board in the ’295 and ’476 proceedings that claims 1–5, 10–19, and 21 of the ’524 patent are unpatentable as anticipated or obvious. We also affirm the decisions of the Board in the ’295 and ’476 proceedings that claims 6–8 and 20 of the ’524 patent are patentable. We reverse, however, the decisions of the Board in the ’295 and ’476 proceedings that claim 9 of the ’524 patent is patentable.

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BWP Media USA, Inc. v. T & S Software Associates, Inc.

This appeal is about whether “volitional conduct” is required to establish a claim for direct copyright infringement. Defendant T&S Software Associates, an internet service provider, hosted an internet forum on which third-party users posted images that infringed copyrights owned by plaintiffs BWP Media USA and National Photo Group. The plaintiffs sued T&S for direct and secondary copyright infringement. The district court granted summary judgment in favor of T&S. The plaintiffs appeal the district court’s direct infringement holding. We AFFIRM.

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University of Utah v. Max-Planck-Gesellschaft

Defendants-Appellants (“Max Planck”) appeal a decision of the United States District Court for the District of Massachusetts, which found that this case was not “exceptional” within the meaning of 35 U.S.C. § 285 and thus denied Max Planck’s motion for attorney fees. The district court did not abuse its discretion. We therefore affirm.

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TVIIM, LLC v. McAfee, Inc.

TVIIM, LLC (“TVIIM”) sued McAfee, Inc. (“McAfee”) in the United States District Court for the Northern District of California for infringement of U.S. Patent No. 6,889,168 (“’168 patent”). A jury determined that McAfee did not infringe the ’168 patent and that the ’168 patent was invalid. After the jury verdict, TVIIM filed motions for judgment as a matter of law (“JMOL”) and for a new trial. The district court denied both motions, and TVIIM filed this appeal challenging the jury verdict and the district court’s denial of its post-verdict motions. We affirm because substantial evidence supports the jury’s findings of non-infringement and invalidity under a uniform construction of the relevant claim terms, and the district court did not abuse its discretion in denying a new trial.

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Bayer Cropscience AG v. Dow Agrosciences LLC

Bayer appeals the district court’s award of attorney fees to Dow under 35 U.S.C. § 285. The district court awarded attorney fees to Dow upon finding that the case stood out from others and was thus exceptional. Because the district court did not abuse its discretion in finding the case exceptional and awarding fees, we affirm.

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