Rivera v. International Trade Commission

Adrian Rivera and Adrian Rivera Maynez Enterprises (collectively, “Rivera”) appeal from a divided decision by the International Trade Commission, finding no violation of Section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, based on the Commission’s holding of invalidity of certain asserted claims of Rivera’s U.S. Patent No. 8,720,320 (“’320 patent”), filed July 13, 2007, titled “Pod Adaptor System for Single Service Beverage Brewers.” In re Certain Beverage Brewing Capsules, Components Thereof, and Products Containing the Same, Inv. No. 337-TA-929 (April 5, 2016) (Final) (“Beverage Capsules” and “Beverage Capsules Dissent”).

Because substantial evidence supports the Commission’s holding that all asserted claims are invalid for lack of written description, we affirm. We need not, and do not, reach any of the alternative grounds for affirmance.

Download Rivera v. International Trade Commission

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Mylan Institutional LLC v. Aurobindo Pharma Ltd.

Aurobindo Pharma Ltd., Aurobindo Pharma USA Inc., and Auromedics Pharma LLC (together, “Aurobindo”) appeal from a decision of the United States District Court for the Eastern District of Texas granting Mylan Institutional LLC’s (“Mylan Inst.”) and Apicore US LLC’s (“Apicore”) (together, “Mylan”) motion for a preliminary injunction precluding Aurobindo from making, using, selling, offering to sell, and importing the accused isosulfan blue (“ISB”) product that allegedly infringes three of Apicore’s patents—U.S. Patent 7,622,992 (“the ’992 patent”), U.S. Patent 8,969,616 (“the ’616 patent”), and U.S. Patent 9,353,050 (“the ’050 patent”). See Mylan Institutional LLC v. Aurobindo Pharma Ltd., No. 2:16-cv-00491, 2017 WL 497593 (E.D. Tex. Feb. 7, 2017) (“Order Adopting R&R”). Because the district court did not err in its grant of the preliminary injunction under the ’050 patent, although it did err in granting the injunction under the ’992 and ’616 patents, we affirm.

Download Mylan Institutional LLC v. Aurobindo Pharma Ltd.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Arcelormittal v. AK Steel Corp.

Plaintiffs sued Defendants in 2010 for infringing U.S. Patent No. 6,296,805. After our most recent remand in this case, the district court invalidated claims 24 and 25 of U.S. Patent No. RE44,153, the reissue of the ’805 patent. We conclude that the district court possessed subject matter jurisdiction when it granted summary judgment, that the court properly followed our most recent mandate, and that the court properly exercised its discretion to deny ArcelorMittal’s Rule 56(d) request. Accordingly, we affirm.

Download Arcelormittal v. AK Steel Corp.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

AT&T Intellectual Property II

AT&T appeals a final decision of the Patent Trial and Appeal Board in an inter partes reexamination. AT&T argues that the Board improperly instituted the reexamination proceedings and erred in finding that the challenged claims are invalid as anticipated. The Board did not exceed its statutory authority when instituting the reexamination and substantial evidence supports the Board’s finding of anticipation. We therefore affirm.

Download AT&T Intellectual Property II

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Rovalma, S.A. v. Bohler-Edelstahl GMBH & Co. KG

Rovalma, S.A. owns U.S. Patent No. 8,557,056, which describes and claims methods for making steels with certain desired thermal conductivities. In October 2014, Böhler-Edelstahl GmbH & Co. KG (Böhler) petitioned the Patent Trial and Appeal Board for an inter partes review of claims 1–4 of the ’056 patent. The Board instituted a review based on Böhler’s construction of the claims at issue. In its final written decision, however, the Board rejected Böhler’s construction and adopted Rovalma’s construction instead. Böhler had not submitted arguments or evidence for unpatentability based on Rovalma’s construction. Nevertheless, the Board determined that Rovalma’s own submissions demonstrated that the claims, construed as Rovalma urged, would have been obvious to a relevant skilled artisan over the same prior art that Böhler invoked.

Rovalma appeals. It argues both that substantial evidence does not support the Board’s determination and that the Board committed prejudicial procedural errors in relying on Rovalma’s own submissions when determining that the claims would have been obvious under Rovalma’s construction. We conclude that the Board did not set forth its reasoning in sufficient detail for us to determine what inferences it drew from Rovalma’s submissions. We therefore cannot determine whether the Board’s decision was substantively supported and procedurally proper. We vacate the Board’s decision and remand for further proceedings.

Download Rovalma S.A. v. Bohler-Edelstahl GMBH & Co. KG

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Aylus Networks, Inc. v. Apple Inc.

Aylus Networks, Inc. appeals the United States District Court for the Northern District of California’s grant of summary judgment finding that Apple Inc.’s AirPlay feature does not infringe the asserted claims of U.S. Patent No. RE 44,412. For the reasons below, we affirm.

Download Aylus Networks Inc. v. Apple Inc.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Nova Chemicals Corp. v. Dow Chemical Co.

NOVA Chemicals Corp. (Canada) and NOVA Chemicals Inc. (Delaware) (collectively, “NOVA”) appeal the district court’s award of approximately $2.5 million in attorney fees to Dow Chemical Co. (“Dow”) under 35 U.S.C. § 285. NOVA filed the underlying action in equity, seeking relief from a prior judgment that it had infringed certain Dow patents. The only issue in this appeal is whether the district court abused its discretion in finding this case exceptional for purposes of § 285. Because it did not abuse its discretion, we affirm.

Download Nova Chemicals Corp. v. Dow Chemical Co.

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Cisco Systems, Inc. v. Cirrex Systems, LLC

This case arises from Cisco Systems, Inc.’s (Cisco) request for inter partes reexamination before the U.S. Patent and Trademark Office of all claims of U.S. Patent No. 6,415,082 (’082 patent), which is owned by Cirrex Systems, Inc. (Cirrex). The ’082 patent originally issued with claims 1–34, and Cirrex added claims 35–124 during reexamination and subsequently amended and canceled several original claims.1 As relevant here, the Examiner found claims 56, 57, 76, 102, and 103 patentable and rejected claims 38–41, 43–47, 49–50, 58–61, 75, 84–87, 89–93, 95–96, 104–107, and 121 for lack of written description support. The Board affirmed. Cisco Sys., Inc. v. Graywire LLC, No. 2012-006121, 2013 WL 4782204 (P.T.A.B. Sept. 5, 2013).

Cisco appeals the Board’s patentability finding for claims 56, 57, 76, 102, and 103, and Cirrex cross-appeals the Board’s rejections. Because all the claims on appeal are unpatentable for lack of written description support, we affirm, in part, and reverse, in part.

Download Cisco Systems Inc. v. Cirrex Systems LLC

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

In re: Affinity Labs of Texas, LLC

This appeal arises from two inter partes reexaminations and an ex parte reexamination of U.S. Patent No. 7,324,833 (the ’833 patent), owned by Affinity Labs of Texas, LLC (Affinity). Richard King requested ex parte reexamination of all original claims of the ’833 patent, based on multiple asserted grounds of unpatentability. Volkswagen Group of America, Inc. (Volkswagen) requested inter partes reexamination of all claims based on additional, different asserted grounds of unpatentability. And Apple Inc. (Apple) requested inter partes reexamination of all claims based on still different asserted grounds of unpatentability. The United States Patent and Trademark Office (PTO) granted all three requests and sua sponte merged these three reexaminations into a single proceeding.

Volkswagen subsequently received an adverse final judgment in a parallel district court proceeding, upholding the validity of claims 28 and 35 of Affinity’s ’833 patent. In response, Affinity petitioned the PTO to vacate the entire merged reexamination proceeding, arguing that the estoppel provision in pre-America Invents Act (AIA) 35 U.S.C. § 317(b)1 extends to all parties, not just Volkswagen, and all claims challenged in the three reexaminations, not just litigated claims 28 and 35. The PTO denied Affinity’s termination request, but it severed the Volkswagen reexamination from the merged proceeding and held that no rejection could be maintained in that reexamination as to the claims at issue in the district court action. The Examiner then evaluated the Volkswagen reexamination separately from the merged King/Apple reexamination and ultimately issued a Right of Appeal Notice in each proceeding, rejecting numerous claims of the ’833 patent as unpatentable. The Patent Trial and Appeal Board (Board) affirmed the Examiner’s rejections. See Apple Inc. v. Affinity Labs of Tex., LLC, No. 2015-004281, Reexamination Nos. 95/001,264 and 90/010,333, 2015 WL 4038964, at *1 (P.T.A.B. June 30, 2015) (-4281 Board Decision); Apple Inc. v. Affinity Labs of Tex., LLC, No. 2015-006122, Reexamination No. 95/001,223, 2015 WL 5092841, at *1 (P.T.A.B. Aug. 26, 2015) (-6122 Board Decision). Affinity appealed to this court and the Director of the United States Patent and Trademark Office (Director) intervened. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A).

Affinity first argues that the PTO erred in maintaining the reexaminations in light of the final decision that Volkswagen failed to prove invalidity of two of the patent’s claims, which were asserted in the co-pending litigation and, therefore, the Board’s decisions in the reexaminations should be reversed pursuant to the section 317(b) estoppel provision. Affinity also asserts that, assuming the reexaminations were properly maintained, the Board’s decisions are based on misreadings of the asserted prior art and a misevaluation of Affinity’s objective indicia evidence of nonobviousness. Because the plain language of pre-AIA section 317(b) precludes Affinity’s estoppel argument and because we see no error in the -4281 Board Decision upholding the Examiner’s findings of unpatentability as to all claims at issue, we affirm. We, therefore, dismiss as moot Affinity’s appeal of the -6122 Board Decision upholding the unpatentability of a subset of claims affirmed as unpatentable in the -4281 Board Decision.

Download In re Affinity Labs of Texas LLC

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.

Affinity Labs of Texas, LLC

This appeal arises from the inter partes reexamination of all claims, claims 1–42, of U.S. Patent No. 7,440,772 (the ’772 patent), owned by Affinity Labs of Texas, LLC (Affinity). Apple Inc. (Apple) requested the present reexamination after Affinity brought an action against it in district court, asserting infringement of claims 1, 4, and 11–13 of the ’772 patent. While the reexamination was pending, the parties settled their dispute and filed a joint stipulation of dismissal with the district court. Affinity’s infringement action was dismissed with prejudice and Apple’s invalidity counterclaims were dismissed without prejudice. Apple also filed a notice of non-participation in the reexamination. Affinity petitioned the United States Patent and Trademark Office (PTO) to terminate the patent reexamination that had been requested by Apple in view of the dismissal of Apple’s district court counterclaims pursuant to preAmerica Invents Act (AIA) 35 U.S.C. § 317(b).1 That statutory section prohibits the PTO from maintaining an inter partes reexamination after the party who requested the reexamination has received a final decision against it in a civil action concluding “that the party has not sustained its burden of proving the invalidity of any patent claim in suit.”2 The PTO dismissed Affinity’s termination request because it did not view the district court’s dismissal, without prejudice, of Apple’s invalidity counterclaims as meeting section 317(b)’s required condition for terminating the reexamination. The Examiner ultimately rejected all of the patent’s claims,3 and Affinity appealed to the Patent Trial and Appeal Board (Board), which upheld the Examiner’s rejection.

Affinity now appeals the Board’s decision. The Director of the United States Patent and Trademark Office (Director) has intervened. We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A) to review the Board’s decision. Affinity argues that the PTO improperly maintained the reexamination in view of § 317(b) and, on that basis, the Board’s decision upholding the rejection of the ’772 patent’s claims should be reversed. Affinity also argues that the Board’s finding that all claims are unpatentable is based on an improper claim construction of three related limitations, the so-called dual download feature.

Because we conclude the estoppel provision of § 317(b) did not prohibit the PTO from maintaining the reexamination of the ’772 patent’s claims and the Board’s construction of the dual download feature is consistent with the broadest reasonable interpretation, we affirm the Board’s decision.

Download Affinity Labs of Texas LLC

Please visit Gehrke & Associates, SC to learn more about how to enhance and defend your intellectual property.  Thank you.