• CAFC in ALVARADO HOSPITAL.  A dissent by Judge Newman.
    in: 未分類  | 

    CAFC in ALVARADO HOSPITAL. A dissent by Judge Newman.

    One must always keep in mind that the CAFC has jurisdiction in non-patent areas.
    On 22 August 2017:


    Because Prime Hospitals’ breach of contract claim is
    fundamentally a suit to enforce a contract and it does not
    arise under the Medicare Act, we hold that the Court of
    Federal Claims has exclusive jurisdiction over that claim
    under the Tucker Act, 28 U.S.C. § 1491. We also hold
    that the Court of Federal Claims does not have jurisdiction,
    however, over Prime Hospitals’ alternative claims
    seeking declaratory, injunctive, and mandamus relief.
    Accordingly, we affirm the district court’s transfer order
    in-part, reverse-in-part, and remand for further proceedings.

    Judge Newman dissented:


    I respectfully dissent from the ruling that the Medicare
    Act’s jurisdictional assignment to the district courts
    does not apply when there is an offer of settlement of a
    Medicare reimbursement claim.

    (…)
    Nonetheless, my colleagues endorse the transfer of
    this action from the district court to the Court of Federal
    Claims under the Tucker Act, reasoning that the statutory
    assignment of Medicare jurisdiction does not apply
    when the issue includes a proposal for settlement of a
    Medicare claim. However, as precedent has resolved,
    settlement of a Medicare claim does not remove the
    statutory Medicare Act jurisdiction. See Pines Residential
    Treatment Ctr., Inc. v. United States, 444 F.3d 1379 (Fed.
    Cir. 2006)

  • Two CAFC judges in Nidec case:  we question whether the practice of expanding panels
    in: 未分類  | 

    Two CAFC judges in Nidec case: we question whether the practice of expanding panels

    The outcome was that appellant lost:


    Nidec Motor Corporation (“Nidec”) appeals a final
    written decision of the Patent Trial and Appeal Board
    (“Board”) in an inter partes review (“IPR”). The Board
    determined that claims 1–3, 8, 9, 12, 16, and 19 of U.S.
    Patent No. 7,626,349 (the “’349 Patent”) are invalid as
    anticipated or obvious. We affirm.

    What the CAFC did not decide:


    Both Broad Ocean and the Director argue that the
    Board properly applied the joinder and time bar statutes
    to allow joinder and institution in this case. Nidec disagrees.
    We need not resolve this dispute. Nor need we
    address the Director’s and Broad Ocean’s arguments that
    the Board’s joinder determination is non-appealable in
    light of 35 U.S.C. § 314(d)’s bar of judicial review for
    institution decisions or Nidec’s argument that the Board’s
    practice of expanding panels violates due process. For the
    reasons set forth below, we affirm the Board’s conclusion
    that all of the challenged claims are unpatentable as
    obvious over Bessler and Kocybik. Because there is no
    dispute that Broad Ocean timely filed the First Petition
    (containing the obviousness ground), the issues on appeal
    relating only to the Board’s joinder determination as to
    anticipation ultimately do not affect the outcome of this
    case. Both parties agree that, if we affirm as to obviousness,
    we need not address Nidec’s argument that various
    procedural aspects of the Board’s joinder decision require
    reversal of its holding concerning anticipation by Hideji.
    See Oral Arg. at 1:28–2:33 (June 8, 2017), available at
    http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
    16-2321.mp3 (Nidec agreeing that we need not address
    the anticipation ground based on Hideji in any respect if
    we determine that the Board was correct in its obviousness
    determination under Bessler and Kocybik).

    Nidec loses:


    The Board concluded that “the use of
    sinewave commutation and independent Q and d axis
    currents would have provided predictable results to
    address known problems associated with other types of
    motors.” J.A. 29. Nidec asks us to reweigh the evidence
    the Board used to make its determination, which we may
    not do. See In re Warsaw Orthopedic, Inc., 832 F.3d 1327,
    1334 (Fed. Cir. 2016).

    The opinion was per curiam. There was a two judge
    concurring opinion which included:


    Although we do not decide the issues here, we
    have serious questions as to the Board’s (and the Director’s)
    interpretation of the relevant statutes and current
    practices.

    (…)

    The issue in this case is whether the time bar provision
    allows a time-barred petitioner to add new issues,
    rather than simply belatedly joining a proceeding as a
    new party, to an otherwise timely proceeding. Section
    315(c) does not explicitly allow this practice. We think it
    unlikely that Congress intended that petitioners could
    employ the joinder provision to circumvent the time bar
    by adding time-barred issues to an otherwise timely
    proceeding, whether the petitioner seeking to add new
    issues is the same party that brought the timely proceeding,
    as in this case, or the petitioner is a new party.

    Of some interest as to the expanded panel:

    Nidec alleges that the two administrative judges added
    to the panel were chosen with some expectation that
    they would vote to set aside the earlier panel decision.
    The Director represents that the PTO “is not directing
    individual judges to decide cases in a certain way.” Director
    Br. 21 (quotation marks omitted). While we recognize
    the importance of achieving uniformity in PTO decisions,
    we question whether the practice of expanding panels
    where the PTO is dissatisfied with a panel’s earlier decision
    is the appropriate mechanism of achieving the desired
    uniformity. But, as with the joinder issue, we need
    not resolve this issue here. Nor need we address the
    predicate issue of appealability.

  • CAFC in ALVARADO HOSPITAL. A dissent by Judge Newman.

    One must always keep in mind that the CAFC has jurisdiction in non-patent areas.
    On 22 August 2017:


    Because Prime Hospitals’ breach of contract claim is
    fundamentally a suit to enforce a contract and it does not
    arise under the Medicare Act, we hold that the Court of
    Federal Claims has exclusive jurisdiction over that claim
    under the Tucker Act, 28 U.S.C. § 1491. We also hold
    that the Court of Federal Claims does not have jurisdiction,
    however, over Prime Hospitals’ alternative claims
    seeking declaratory, injunctive, and mandamus relief.
    Accordingly, we affirm the district court’s transfer order
    in-part, reverse-in-part, and remand for further proceedings.

    Judge Newman dissented:


    I respectfully dissent from the ruling that the Medicare
    Act’s jurisdictional assignment to the district courts
    does not apply when there is an offer of settlement of a
    Medicare reimbursement claim.

    (…)
    Nonetheless, my colleagues endorse the transfer of
    this action from the district court to the Court of Federal
    Claims under the Tucker Act, reasoning that the statutory
    assignment of Medicare jurisdiction does not apply
    when the issue includes a proposal for settlement of a
    Medicare claim. However, as precedent has resolved,
    settlement of a Medicare claim does not remove the
    statutory Medicare Act jurisdiction. See Pines Residential
    Treatment Ctr., Inc. v. United States, 444 F.3d 1379 (Fed.
    Cir. 2006)

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  • ENERGY

                            目次はこちら

    ENERGY

    –>energise

    $$ This is sometimes known as the "Forster" resonance energy transfer. / これは、しばしば、「Forster」共鳴エネルギー移動とも呼ばれている。(USP7652266)

    $$ The gas cylinder 1 and valve 2 are replaced by a spring-powered energy source. / 上記実施形態におけるガスシリンダ1とバルブ2は、ばね形式のエネルギー源によって置き換えられている。(USP7645265)

    $$ The energy required to open and latch the shutter is around 0.05 J, and zero power is required to hold the shutter in position. / シャッタを開けてラッチするのに要するエネルギーは約0.05Jであり、シャッタを適所に保持するのに必要な電力はゼロである。(USP7619265)

    $$ However, thinner tissue requires less energy to coagulate than thick. (USP02052599)

    $$ The type of high-energy pulse amplifiers and lasers we consider are so-called energy-storage devices in which a pulse extracts significant amounts of energy stored in the gain medium. (USP6445494)

    $$ The inductor 154P then releases its energy into this reverse bias. (USP6416509)

    $$ This energy consumed is then displayed on the LCD display 10 in kilowatt-hours. (USP6414475)

    $$ The crystalline change results from the thermal energy input. (USP6392915)

    $$ This is because 3 dB represents a doubling in energy (the sum of the two components). (USP6370254)

    $$ Energy losses will appear in form of heat release in superconductors. (USP6304015)

    $$ Energy for this snap action is derived from the compressed springs 23. (USP6217311)

    $$ Energy is applied for a period of time chemically to stabilise the coating. (USP5545448)

    $$ Energy is assumed to remain in the low-velocity layer. (USP5260911)

    $$ Energy delivery between pulses is substantially zero and the mark-to-space ratio is typically 1:4 or less. (USP02052599)

                            目次はこちら

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  • Two New Valuation Seminars

    There are two interesting valuation seminars coming up.  The first is by the American Intellectual Property Law Association and is free.  It is tomorrow, Wednesday, August 22, 2017 and remote participation is possible.  The event is titled, “Assessing the Value of Intellectual Property in Rapidly Changing Markets and Law.”  Here is a summary of the event:

    Rapidly changing markets and products affect the value of intellectual property.  Traditional methods of valuation are highly challenged, as comparable transactions, costs to develop “equivalent” IP and measuring income streams are all compromised by abbreviated time lines.  So, too, innovation at an increasing pace in certain sectors and rapidly changing intellectual property law (Alice, PTAB developments) heavily impact valuation approaches and outcomes.  Listen to our panel discuss these intriguing challenges.

    The Speakers: Philip W. Kline of 284 Partners, LLC; Brian Scarpelli of ACT | The App Association; and David Stein of Cooper Legal Group, LLC

    Wednesday, August 23rd, 2017, 12:30 PM ET

    The Southern Methodist University Dedman School of Law in Dallas is holding a symposium titled: “The Value of Intellectual Property.”  The description states: “A one-day symposium exploring the latest news, legal developments, and judicial decisions, including panels on: What Drives Innovation; Perspectives on the Value of Intellectual Property; Patent Eligibility; Patent Valuation and Complex Products; The Supreme Court’s Recent IP Cases; and The Patent Trial and Appeal Board.”  The “featured speakers” are: Manny Schecter, Chief Patent Counsel, IBM and Phil Johnson, Senior Vice President – Intellectual Property Strategy and Policy (ret.).  The event is on Friday, September 29, 2017 in Dallas at SMU, Dedman School of Law. 

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  • Senator Toomey changes tune on exclusion orders and patents, supports Comcast against TiVo at ITC

    Toomey’s comments appear to argue against an exclusion order for TiVo, which at first glance probably is hardly surprising to anyone. Senator Toomey is supporting a large constituent, which is to be expected. However, by doing so in this case Senator Toomey but seems to be directly at odds with a letter he sent just three years ago expressing “strong support of the protections afforded by 19 U.S.C. § 1337 (Section 337)” for a different constituent. Back in 2014, Senator Toomey wrote to the ITC…

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  • Content Delivery Networks: Dan Lewin and Tom Leighton solve the “World Wide Wait”

    Content delivery networks (CDNs), distributed networks involving proxy servers and data centers to provide high availability of content, are becoming increasingly valuable as Internet users continue to demand instant access to files or streaming media… Currently, the world’s largest CDN is Akamai, a CDN and cloud services provider based in Cambridge, MA, which operates 216,000 servers across 120 countries and within more than 1,500 networks to deliver up to 30 percent of Internet traffic…

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  • CAFC uses an analogy to a "cookie jar" to rule against appellant Thought

    The relevant portion of a “system” claim contained the
    language


    a first adapter responsive to the object application
    including an application bridge
    receiving an object comprising object attributes
    and an object name from the object
    application, said first adapter
    extracting the object attributes and the object
    name from the object to effect packing
    of the object attributes
    and the object
    name as data, said first adapter unpacking
    the data to effect instantiating the object
    attributes and the object name into a
    new object; and

    From the decision:


    Just as a child might “extract” all of the
    cookies from the cookie jar and leave the cookie jar itself
    behind, the first adapter may extract all of the data
    contained within the object but must leave behind the
    data container of the object itself. Taking, or making an
    exact copy of, the container and all of the contents held
    within the container is not extracting the contents from
    the container

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  • EJECT

                            目次はこちら

    EJECT

    $$ The cigarette ejected therefrom is transferred sequentially to a circumference measuring section, a ventilation-characteristic measuring section a…

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  • Two CAFC judges in Nidec case: we question whether the practice of expanding panels

    The outcome was that appellant lost:


    Nidec Motor Corporation (“Nidec”) appeals a final
    written decision of the Patent Trial and Appeal Board
    (“Board”) in an inter partes review (“IPR”). The Board
    determined that claims 1–3, 8, 9, 12, 16, and 19 of U.S.
    Patent No. 7,626,349 (the “’349 Patent”) are invalid as
    anticipated or obvious. We affirm.

    What the CAFC did not decide:


    Both Broad Ocean and the Director argue that the
    Board properly applied the joinder and time bar statutes
    to allow joinder and institution in this case. Nidec disagrees.
    We need not resolve this dispute. Nor need we
    address the Director’s and Broad Ocean’s arguments that
    the Board’s joinder determination is non-appealable in
    light of 35 U.S.C. § 314(d)’s bar of judicial review for
    institution decisions or Nidec’s argument that the Board’s
    practice of expanding panels violates due process. For the
    reasons set forth below, we affirm the Board’s conclusion
    that all of the challenged claims are unpatentable as
    obvious over Bessler and Kocybik. Because there is no
    dispute that Broad Ocean timely filed the First Petition
    (containing the obviousness ground), the issues on appeal
    relating only to the Board’s joinder determination as to
    anticipation ultimately do not affect the outcome of this
    case. Both parties agree that, if we affirm as to obviousness,
    we need not address Nidec’s argument that various
    procedural aspects of the Board’s joinder decision require
    reversal of its holding concerning anticipation by Hideji.
    See Oral Arg. at 1:28–2:33 (June 8, 2017), available at
    http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20
    16-2321.mp3 (Nidec agreeing that we need not address
    the anticipation ground based on Hideji in any respect if
    we determine that the Board was correct in its obviousness
    determination under Bessler and Kocybik).

    Nidec loses:


    The Board concluded that “the use of
    sinewave commutation and independent Q and d axis
    currents would have provided predictable results to
    address known problems associated with other types of
    motors.” J.A. 29. Nidec asks us to reweigh the evidence
    the Board used to make its determination, which we may
    not do. See In re Warsaw Orthopedic, Inc., 832 F.3d 1327,
    1334 (Fed. Cir. 2016).

    The opinion was per curiam. There was a two judge
    concurring opinion which included:


    Although we do not decide the issues here, we
    have serious questions as to the Board’s (and the Director’s)
    interpretation of the relevant statutes and current
    practices.

    (…)

    The issue in this case is whether the time bar provision
    allows a time-barred petitioner to add new issues,
    rather than simply belatedly joining a proceeding as a
    new party, to an otherwise timely proceeding. Section
    315(c) does not explicitly allow this practice. We think it
    unlikely that Congress intended that petitioners could
    employ the joinder provision to circumvent the time bar
    by adding time-barred issues to an otherwise timely
    proceeding, whether the petitioner seeking to add new
    issues is the same party that brought the timely proceeding,
    as in this case, or the petitioner is a new party.

    Of some interest as to the expanded panel:

    Nidec alleges that the two administrative judges added
    to the panel were chosen with some expectation that
    they would vote to set aside the earlier panel decision.
    The Director represents that the PTO “is not directing
    individual judges to decide cases in a certain way.” Director
    Br. 21 (quotation marks omitted). While we recognize
    the importance of achieving uniformity in PTO decisions,
    we question whether the practice of expanding panels
    where the PTO is dissatisfied with a panel’s earlier decision
    is the appropriate mechanism of achieving the desired
    uniformity. But, as with the joinder issue, we need
    not resolve this issue here. Nor need we address the
    predicate issue of appealability.

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  • Senator Toomey changes tune on exclusion orders and patents, supports Comcast against TiVo at ITC

    Toomey’s comments appear to argue against an exclusion order for TiVo, which at first glance probably is hardly surprising to anyone. Senator Toomey is supporting a large constituent, which is to be expected. However, by doing so in this case Senator Toomey but seems to be directly at odds with a letter he sent just three years ago expressing “strong support of the protections afforded by 19 U.S.C. § 1337 (Section 337)” for a different constituent. Back in 2014, Senator Toomey wrote to the ITC…

    Continue Reading ...
  • Atari files suit against Nestlé for Kit Kat ad campaign that infringed on Breakout video game

    Atari Interactive Inc. filed a lawsuit alleging trademark and copyright infringement claims against Swiss food and drink company Nestlé SA (VTX:NESN). The suit targets a worldwide and multi-platform advertising campaign produced by Nestlé for the company’s Kit Kat candy bars, which uses elements of Atari’s Breakout video game. The suit is filed in the Northern District of California. Atari’s suit alleges that Nestlé leveraged the look of Breakout for its Kit Kat ad campaign 40 years after Steve…

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  • Federal Circuit Provides More Guidance On Biosimilar Patent Litigation

    In Amgen Inc. v. Hospira, Inc., the Federal Circuit held that Amgen could not obtain discovery related to activities that might infringe a patent that it had not asserted in its biosimilar patent litigation against Hospira. In particular, the court held that it lacked jurisdiction—under the collateral order doctrine—over the district court’s denial of Amgen’s motion to…… Continue reading this entry

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  • CAFC in Walter declines to enter into a highly subjective inquiry depending “on the unpredictable vagaries of any one person’s opinion.”

    The outcome of an ex parte re-exam of a patent directed to artificial reefs
    for cultivating marine life was that appellant Walter lost at the CAFC:


    David Walter appeals the decision of the Patent Trial
    and Appeal Board (“Board”) in an ex parte reexamination
    proceeding involving U.S. Patent No. 7,513,711 (“the ’711
    patent”). See Ex parte David Walter, No. 2015-006121,
    2015 WL 5144184 (P.T.A.B. Aug. 31, 2015). In its decision,
    the Board ruled that all twelve claims of the ’711
    patent lack adequate written description and are indefinite
    under 35 U.S.C. § 112. Id. at *2–3. We affirm.

    As to “written description,” the CAFC wrote:


    Compliance with the written description requirement
    is a question of fact we review for substantial evidence.
    ULF Bamberg v. Dalvey, 815 F.3d 793, 797 (Fed. Cir.
    2016) (citing Harari v. Lee, 656 F.3d 1331, 1341 (Fed. Cir.
    2011)). Substantial evidence justifies a finding if a reasonable
    mind might accept the evidence to support it.
    Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).

    As to indefiniteness:


    At the outset, we decline to adopt the Board’s implicit
    determination that a patent claim is indefinite because
    the specification uses a term differently from its dictionary
    definition. See Ex parte Walter, 2015 WL 5144184, at
    *2. The specification is “always highly relevant to the
    claim construction analysis. Usually, it is dispositive.”
    Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed. Cir.
    2005) (en banc) (internal quotation marks omitted) (quoting
    Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576,
    1582 (Fed. Cir. 1996)). If there is a conflict between the
    specification and a general purpose dictionary as to a
    claim’s proper meaning, the specification controls. Id. at
    1318–24.

    BUT


    Here, “block-like” is a term of degree without any accompanying
    guidance in the intrinsic record for determining
    its scope. The term ostensibly covers a range of
    shapes that are sufficiently “like” a “block” and excludes
    those that are not. But nothing in the intrinsic record
    offers “objective boundaries” for ascertaining whether a
    given shape falls into either category. See Interval Licensing,
    766 F.3d at 1371. And because the “present invention
    10 can be fabricated in any shape without deviating
    from the objectives thereof,” see ’711 patent, col. 3 ll. 52–
    54 (emphasis added), determining whether a particular
    shape is “block-like” thus strikes us as devolving into a
    highly subjective inquiry depending “on the unpredictable
    vagaries of any one person’s opinion.” Interval Licensing,
    766 F.3d at 1371 (quoting Datamize, LLC v. Plumtree
    Software, Inc., 417 F.3d 1342, 1350 (Fed. Cir. 2005)).
    When, as here, “nothing in the specification, prosecution
    history, or proper art provides any indication as to what
    range of [structures] is covered by the term,” the claim is
    indefinite. Amgen, Inc. v. Chugai Pharm. Co., Ltd. 927
    F.3d 1200, 1218 (Fed. Cir. 1991).

    (…)

    And even if it were possible to
    harmonize all of Mr. Walter’s statements, it is not enough
    “that a court can ascribe some meaning to a patent’s
    claims; the definiteness inquiry trains on the understanding
    of a skilled artisan at the time of the patent application,
    not that of a court viewing matters post hoc.”
    Nautilus I, 134 S. Ct. at 2130. Here, the term’s ill-defined
    boundaries coupled with the patentee’s erratic use of the
    term fails to inform skilled artisans about the scope of the
    invention with reasonable certainty. Id. at 2124. The
    term is indefinite.

    Of interest


    Citing to Mr. Miller’s expert declaration, Mr. Walter
    urges that “block-like” is a term of art in the structural
    engineering field. Appellant’s Br. 12, 17–18, 23. We are
    not persuaded by this argument. First, Mr. Miller does
    not support his opinion with evidence or analysis, and his
    testimony is wholly conclusory. See J.A. 178 ¶ 6.
    “[C]onclusory, unsupported assertions by experts as to the
    definition of a claim term are not useful to a court,” Phillips,
    415 F.3d at 1318, and thus we give Mr. Miller’s
    testimony no weight. See SkinMedica, Inc. v. Histogen
    Inc., 727 F.3d 1187, 1210 (Fed. Cir. 2013) (giving “no
    weight” to expert testimony in similar circumstances).
    Second, it is difficult to fault the Board for purportedly
    overlooking Mr. Miller’s declaration when Mr. Walter
    never relied on it. In both his opening and reply briefs to
    the Board, Mr. Walter argued that the claims were consistent
    with the examiner’s construction of “block” and did
    not urge that the phrase implicated a term of art. See
    J.A. 401–02, 482–83. Nor did Mr. Walter rely on
    Mr. Miller’s declaration during the oral hearing before the
    Board. See J.A. 509–13. We therefore see no error in the
    Board’s decision to disregard Mr. Miller’s testimony.

    In the end, “written description” was not addressed:


    Having determined that claims 1–12 of the
    ’711 patent, as amended, are indefinite, we do not reach
    the issue of whether they are also unpatentable for failing
    to comply with the written description requirement under
    35 U.S.C. § 112, first paragraph.

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