• More on Hitachi v. Alliance, 2017 U.S. App. LEXIS 12031

    Relevant to Hitachi v. Alliance, 2017 U.S. App. LEXIS 12031 , the first four claims of US Patent 6537385 (granted March 25, 2003 ) state:


    1. A method for manufacturing alloy powder for R—Fe—B rare earth magnets, comprising a first pulverization step of coarsely pulverizing an R—Fe—B alloy for rare earth magnets produced by a rapid cooling method and a second pulverization step of finely pulverizing the material alloy,

    wherein said second pulverization step comprises a step of removing at least part of the powder in which the concentration of rare earth element is greater than the average concentration of rare earth element contained in the entire powder.

    2. The method of claim 1, said second pulverization step including a step of finely pulverizing the alloy using a high-speed flow of a gas.

    3. The method of claim 2, wherein the gas comprises oxygen.

    4. The method of claim 3, wherein the concentration of oxygen is adjusted to be in the range between 0.05% and 3% by volume.

    The first four claims of US Patent 6,491,765 :


    1. A method for manufacturing alloy powder for R-Fe-B rare earth magnets, comprising a first pulverization step of coarsely pulverizing a material alloy for rare earth magnets and a second pulverization step of finely pulverizing the material alloy,wherein said first pulverization step comprises a step of pulverizing the material alloy by a hydrogen pulverization method, and said second pulverization step comprises a step of removing at least part of fine powder having a particle size of 1.0 [mu] m or less to adjust the particle quantity of the fine powder having a particle size of 1.0 [mu] m or less to 10% or less of the particle quantity of the entire powder.
    2. The method of claim 1, wherein the average concentration of the rare earth element contained in the fine powder having a particle size of 1.0 [mu] m or less is greater than the average concentration of the rare earth element contained in the entire powder.
    3. The method of claim 1 or 2, wherein in said pulverization step, the alloy is finely pulverized in a high-speed flow of gas.
    4. The method of claims 3, wherein the gas comprises oxygen.

    Note the text in the CAFC decision:

    We do agree with Hitachi that the Board applied internally inconsistent reasoning in rejecting Hitachi’s evidence on the basis that “commercial [considerations] do[] not control the obviousness determination,” id. at *20, while also finding that one of skill in the art would have been motivated to combine the references due to “design incen-tives,” id. at *21. If the Board’s analysis had stopped there, we might remand for further analysis that is not internally inconsistent.

    (…)

    Hitachi points to countervailing testimony by the same expert that, while a skilled artisan would have known to adjust the settings, they would not have known how to do so, as the “multi-parameter compositional experimentation” required would be beyond the capabilities of one of ordinary skill. J.A. 972. However, we do not “reweigh evidence on appeal.” In re NTP, Inc., 654 F.3d 1279, 1292 (Fed. Cir. 2011). We must accept the Board’s finding so long as a “reasonable mind might accept [the evidence upon which it relied] as adequate to support [its] conclusion.” Consol. Edison Co., 305 U.S. at 217. The Board reviewed the competing evidence and made a factual determination that a skilled artisan would not have been demotivated by the potential reduction in yield. We see no error in that finding, which was a reasonable interpretation of the record evidence.

    In light of the foregoing, the Board found that the claims were directed to nothing more than a “combination of prior art elements according to known methods to yield a predictable result.” ‘385 Decision, 2016 Pat. App. LEXIS 1082, at *21, *24. The Supreme Court has advised that a combination of known elements is likely to be obvious when it yields predictable results. KSR, 550 U.S. at 416. And substantial evidence supports the Board’s findings that the prior art elements were well-known, one of ordinary skill would have known how to combine them, and the results of so doing would have been predictable. See ‘385 Decision, 2016 Pat. App. LEXIS 1082, at *18, *20, *27, *39.

    Of claim 4 of the ‘765 patent:

    Hitachi separately argues that claim 4 would not have been obvious over Ohashi and Hasegawa. Hitachi contends that the Board improperly construed claim 4.
    Hitachi argues that the specification contradicts the Board’s construction—i.e., that a high-speed flow of gas for particle classification, as taught by Ohashi, satisfies the limitations of claims 3 and 4—because it distinguishes between the two sub-steps of fine pulverization and particle classification as separate steps, rather than one continuous step. Hitachi points to the language of claim 1, which recites that the “second pulverization step of finely pulverizing the material alloy . . . comprises a step of removing at least part of the fine powder,”‘765 patent col. 13 ll. 24-31 (emphasis added), and argues that the fine pulverization step must be finished before the [*24] particle classification step, otherwise there would be no fine powder to remove. Furthermore, Hitachi argues, the written description repeatedly distinguishes the act of fine pulverization conducted in the milling chamber of the apparatus from the particle classification performed in the classifier, and requires a high-speed flow of gas for the pulverization. Finally, Hitachi argues that Ohashi leads away from claim 4 by teaching that the pulverization should be conducted in a “non-oxidizing or inert gas” and oxygen is indisputably an oxidizing gas.
    The Alliance responds that the Board properly interpreted the specification. First, the Alliance argues, claim 1 recites “a second pulverization step of finely pulverizing the material alloy, . . . wherein said second pulverization step comprises a step of removing at least part of the fine powder,” id. col. 13 ll. 24-31 (emphasis added), and thus indicates that the particle classification (i.e., “remov[al]”) is part of the “second pulverization step.” Second, the Alliance contends that the written description repeatedly describes “fine pulverization” as including a step of removing the fine powder. See, e.g., id. Abstract (“In the second pulverization [*25] step, easily oxidized superfine powder . . . is removed . . . “); id. col. 4 ll. 56-62 (“In the method according to the present invention, after a material alloy . . . is coarsely pulverized and before a fine pulverization step is finished, at least part of R-rich superfine powder . . . is removed. . . .”) (emphasis added).
    We agree with Hitachi that the Board misconstrued claim 4. As an initial matter, the parties seem to agree that, as recited in claim 1, the fine pulverization and particle classification are sub-steps of the umbrella “second pulverization step.” They disagree only as to whether claim 4’s requirement of a high-speed flow of gas comprising oxygen pertains to the umbrella step or to the first sub-step. We agree with Hitachi that claim 4 requires the use of a high-speed flow of gas comprising oxygen for the first sub-step of claim 1—the fine pulverization—rather than the umbrella “second pulverization step.”
    The passages of the written description which the Alliance cite merely confirm that the particle classification step is a sub-step of the umbrella “second pulverization step,” which, as we noted above, the parties do not dispute. The issue is whether claim 4 requires [*26] a high-speed oxygen-containing gas for the umbrella step, or for the first sub-step. We conclude that it refers to the latter; and the passages relied on by the Alliance do not contradict that interpretation.
    The written description explains that “[i]n the second pulverization step, the alloy is preferably finely pulverized using a high-speed flow of gas” containing oxygen, id. col. 3 ll. 27-30, and that “[t]he alloys may be finely pulverized using a jet mill,” id. col. 3 l. 46. Thus, it is clear that the high-speed gas is associated with the fine pulverization conducted in the jet mill. And the written description clearly distinguishes the jet milling apparatus from the particle classifier for performing the two distinct sub-steps—fine pulverization and particle classification, respectively. For example, the patent explains that “when a jet mill is used to perform fine pulverization under a high-speed flow of inert gas, a gas flow classifier . . . may be provided following the jet mill to enable effective removal of R-rich super-fine powder . . . . [A] jet mill is used for the fine pulverization.” Id. col. 5 ll. 23-30 (emphases added). See also, e.g., id. col. 3 ll. 47-50 (“The alloys may be [*27] finely pulverized using a jet mill. In a preferred embodiment, a classifier is provided following the jet mill for classifying powder output from the jet mill.” (emphases added)); id. col. 6 ll. 55-57 (“Next, the coarsely pulverized powder . . . is finely pulverized (or milled) with a jet mill. To the jet mill used in this embodiment, a cyclone classifier is connected for removal of the fine powder.” (emphasis added)).

    The term “broadest reasonable” does not appear in 2017 U.S. App. LEXIS 12031 .

    Note also All. of Rare-Earth Permanent Magnet Indus., IPR 2014-01266, 2016 Pat. App. LEXIS 1083, (P.T.A.B. Feb. 8, 2016) (“‘765 Decision”)

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  • Warner Bros. settles $80M copyright suit brought by Tolkien estate over LOTR online video and casino gambling games

    On July 5th a federal judge entered an order granting the dismissal of a copyright case, which had been filed by the estate of famed English fantasy author J. R. R. Tolkien and American entertainment company Warner Bros. The case arises out of the Tolkien estate’s allegations that Warner Bros. was in breach of contract in using their merchandising rights to The Lord of the Rings and The Hobbit to develop video games based on those properties.

    The post Warner Bros. settles $80M copyright suit…

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  • BY (A by B) A×B

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    BY (A by B) A×B

    $$ The overall assembly has a channel size of 100 μm by 50 μm, an overall size of 36 by 25 by 6 mm, and is retained in position by t…

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  • Spotlight on Upcoming Oral Arguments – July 2017

    Authors: Courtney Kasuboski* Editor: Caitlin O’Connell & Lily Robinson Monday, July 10, 2017 Nalco Company v. Chem-Mod, LLC, No. 17-1036, Courtroom 201 This appeal arises from a Northern District of Illinois decision dismissing Nalco’s infringement complaint with prejudice and denying its motion for reconsideration. Nalco argues that the law does not require pleading all underlying evidence, but rather […]

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  • Lipoic acid and secondary progressive multiple sclerosis

    There are various reports on work by Dr. Rebecca Spain (leading an Oregon Health & Science University research team) on the use of lipoic acid [LA] on patients with secondary progressive multiple sclerosis. The paper is available on the internet. Published online June 28, 2017. doi: http:/​/​dx.​doi.​org/​10.​1212/​NXI.​0000000000000374. Neurol Neuroimmunol Neuroinflamm September 2017 vol. 4 no. 5 e374.

    The conclusion of a study involving 51 participants [27 LA and 24 placebo ]: Lipoic Acid demonstrated a 68% reduction in annualized percent change brain volume [PCBV] and suggested a clinical benefit in SPMS while maintaining favorable safety, tolerability, and compliance over 2 years.

    Of the MRI: The following sequences were acquired using a Philips Achieva 3.0T X-series with Quasar Dual gradient systems: (1) 3D high-resolution magnetization-prepared rapid acquisition gradient echo (3D MP-RAGE) with 1 mm3 voxels for high-resolution structural (T1-weighted) information. The upper cervical spinal cord was intentionally included in the series through positioning; (2) 3D fluid-attenuated inversion recovery (3D FLAIR) series with 1 mm3 voxels; (3) conventional 3 mm (0.3 gap) axial 2D proton density/T2-weighted sequences with in-plane resolution 1 mm2; and (4) 3-mm sagittal 2D proton density/T2-weighted spinal cord sequences. No intravascular contrast was used.

    The paper also noted:


    The reduction in the brain atrophy rate compares favorably with a large phase 3 trial of ocrelizumab (n = 731), reporting a 17.5% reduction in the whole-brain atrophy rate over 120 weeks.26 In contrast to the present study, the ocrelizumab trial included only primary progressive MS patients with more men (51% vs 39%) who were younger (45 vs 59 years), had shorter disease duration (6.5 vs 30 years), and less disability (EDSS 4.7 vs 5.4). The ocrelizumab trial limited inclusion to those with inflammatory CSF, a characteristic not assessed in this study. Other disease-modifying therapy trials in progressive MS populations have not demonstrated robust changes in brain atrophy rates or have not used this outcome measure.27,–,29

    One notes that the study by Rebecca Spain recognizes that the disease-modifying agent ocrelizumab [tradename OCREVUS] does lower the rate of brain volume reduction (atrophy) BUT it finds that lipoic acid is more effective in reducing the rate:


    From Spain paper:

    for 600mg (racemic) lipoic acid: This change corresponds to a 68% reduction in the rate of brain atrophy in LA vs placebo (figure 2A, table 3).

    for ocrelizumab : The reduction in the brain atrophy rate compares favorably with a large phase 3 trial of ocrelizumab (n = 731), reporting a 17.5% reduction in the whole-brain atrophy rate over 120 weeks

    68/17.5 = 3.89

    Consider some background material from Vollmer et al., Journal of the Neurological Sciences
    Volume 357, Issues 1–2, 15 October 2015, Pages 8-18:


    In this study, the average multiple sclerosis patient receiving first-generation disease-modifying treatment or no disease-modifying treatment lost approximately 0.7% of brain volume/year, well above rates associated with normal aging (0.1%–0.3% of brain volume/year).

    (…)

    Arnold et al. found that the median percentage change in brain volume from baseline to 24 months was − 0.64% and − 0.77% for delayed-release DMF [Tecfidera] twice daily and thrice daily, respectively [56]. The DMF results show that there is a significant 21% reduction in the PBVC among patients treated with DMF twice daily compared with patients in the placebo arm (p = 0.04).

    ****Separately, from the Genzyme website:


    Through year five, 33 percent and 43 percent of patients who had some disability before receiving Lemtrada in CARE-MS I and CARE-MS II, respectively, had improvement in EDSS score confirmed over at least six months as compared with pre-treatment baseline.

    Through year five, patients who received Lemtrada in CARE-MS I and II experienced a slowing of brain atrophy as measured by brain parenchymal fraction on magnetic resonance imaging (MRI). In years three, four and five, the median yearly brain volume loss was -0.20 percent or less, which was lower than what was observed during the two-year pivotal studies.

    link: http://news.genzyme.com/press-release/treatment-effects-maintained-over-five-years-majority-patients-relapsing-remitting-mul

    AND


    In the comparator group of the CARE-MS-1 study, the EDSS decreased from baseline (–0.14), whereas an increase of 0.24 was seen in the same group in the CARE-MS-2 study (patients who had failed first-line treatment). The unexpected improvement in EDSS (rather than a slowing in progression) in the comparator group of the CARE-MS-1 study may explain in part why alemtuzumab failed to meet the disability endpoint in the CARE-MS-1 trial. In addition, the low baseline EDSS would also have made it more difficult to detect differences in changes from baseline.

    (…)

    The drug was found to be more effective in patients with less cerebral inflammation in the pretreatment phase. The authors suggested that the progressive disability and increasing brain atrophy could be attributed to axonal degeneration. This axonal degeneration seemed to depend in part on prior inflammation and progressed despite suppression of inflammation. As a result, subsequent development of alemtuzumab focused on relapsing-remitting MS rather than secondary progressive MS.

    link: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3959804/

    Also, from Filippi M, Rovaris M, Inglese M, Barkhof F, De Stefano N, Smith S et al. Interferon beta-1a for brain tissue loss in patients at presentation with syndromes suggestive of multiple sclerosis: a randomised, double-blind, placebo-controlled trial. Lancet. 2004;364(9444):1489-96.:


    A sub-analysis from the ETOMS study that assessed the efficacy of [sc] interferon beta 1-a sc in patients with CIS showed a significant difference in mean annual percentage brain volume change (PBVC) between patients who had disease progression and those who did not (-0.92% and -0.56%, respectively)

    ALSO from NeuroImage: Clinical
    Volume 13, 2017, Pages 9-15

    Indeed, white matter lesion load detected by MRI is only weakly correlated with clinical symptoms (Zivadinov and Cox, 2007). There is a growing body of evidence from both pathology and MRI to suggest that grey matter (GM) degeneration is prevalent in MS (Bermel et al., 2003), (Bakshi et al., 2005), (Chard et al., 2004), (Sanfilipo et al., 2006) and may be a stronger predictor of clinical decline than WM measures (Fisniku et al., 2008; Pirko et al., 2007). I

    ALSO, from Journal of Clinical Neuroscience (7 June 2017)


    Cognitive impairment affects 40–70% of patients with Multiple Sclerosis (MS), with most frequent deficits of memory, processing speed, attention and executive functions [1,2]. Although cognitive decline can be present from the early stages of the disease, it is more frequent and pronounced in secondary progressive MS (SPMS) [3]. Cognitive impairment is an important predictor of employment status in MS patients [4,5]. Unemployment rates of 50–80% of MS patients have been observed within 10 years of disease onset [2]. A wide range of cognitive domains have been found to be predictive of unemployment in MS patients, including information processing efficiency, memory and executive functions [6].

    ALSO, from Neurology, Psychiatry and Brain Research
    Volume 22, Issues 3–4, December 2016, Pages 173-177


    This study demonstrates that aCC [annualized corpus callosum ] atrophy is associated with severity of cognitive dysfunction in MS patients. Based on a linear multivariate regression we could determine that aCC reduction is a predictive factor for cognitive impairment. We did not find any association between aCCI reduction and gender, age, disease duration as reported in the studies by Martola et al. (2007) and Yaldizli et al. (2011). Over 90% of MS patients display CC structural changes and atrophy (Mesaros et al., 2009). Our study confirms previous imaging study findings. In our investigation CC contracted by a mean of 0.7% per year. This is in the range of 0.8% aCC reduction reported in a recent study (Yaldizli et al., 2011) and is consistent with the annual brain volume loss of 0.5–1.3% measured by other studies in multiple sclerosis patients (Anderson, Fox, & Miller, 2006; Chard et al., 2004; De Stefano, Battaglini, & Smith, 2007; Hardmeier et al., 2003).

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  • CAFC explicates "means plus function" in IPCom / HTC case


    IPCom GmbH & Co. (IPCom) is the owner of U.S. Patent
    No. 6,879,830 (’830 patent), which describes and
    claims a method and system for handing over a mobile
    phone call from one base station to another base station.
    After IPCom sued HTC Corporation (HTC) for infringing
    the ’830 patent, HTC requested that the U.S. Patent and
    Trademark Office (PTO) conduct inter partes reexamination
    of claims 1, 5–26, and 28–37 of the ’830 patent, which
    the PTO granted. The reexamination went through two
    rounds of review by the Examiner and the Patent Trial
    and Appeal Board (Board). In the first round, the Examiner
    concluded that the claims were patentable, but HTC
    appealed to the Board, which issued a new ground of
    rejection for claims 1 and 5–30. In the second round,
    IPCom amended claims 1, 5–26, and 28–37,1 but the
    Board found that these amended claims were obvious
    under 35 U.S.C. § 103 in view of various combinations of
    McDonald,2 Anderson,3 GSM,4 and PACS.5

    In its appeal, IPCom alleges that, even though it had
    amended the scope of claims 31–37 during its second
    round before the Examiner, the Board lacked jurisdiction
    to review the Examiner’s patentability determination of
    these amended claims in the Board decision now on
    appeal. IPCom also argues that the Board’s obviousness
    rejections were based on a flawed claim construction,
    because the Board never identified the structure in the
    patent specification that corresponds to the “arrangement
    for reactivating the link” means-plus-function claim
    limitation. IPCom also appeals the Board’s factual findings
    for several other claim limitations and the motivation
    to combine the prior art references in the manner
    claimed by the ’830 patent.

    We conclude that, under the circumstances of this
    case, the Board properly had the authority to consider the
    patentability of claims 31–37 and thus reject IPCom’s
    procedural challenge to the Board’s rejection of these
    claims
    . But we agree with IPCom that the Board failed to
    conduct a proper claim construction of the “arrangement
    for reactivating the link” claim limitation, and we vacate
    and remand the obviousness rejections based on that
    limitation
    . We affirm the Board’s findings in all other
    respects.

    The problem with the Board’s analysis:


    The Board’s analysis was erroneous because it never
    specified what it believed was the actual algorithm disclosed
    in the ’830 patent for performing the “arrangement
    for reactivating the link” function. It was not enough for
    the Board to reject the individual steps of IPCom’s proposed
    three-step algorithm
    . As we explained in Donaldson,
    “the PTO may not disregard the structure
    disclosed in the specification corresponding to such language
    when rendering a patentability determination.”
    Donaldson, 16 F.3d at 1195. And in HTC Corp., we held
    that “the functional claiming in claims 1 and 18 of the
    ’830 patent must include an adequate algorithm.” HTC
    Corp., 667 F.3d at 1283. Here, as in Donaldson, the
    Board never engaged in a comparison of the asserted prior
    art’s disclosure to the “structure” disclosed in the ’830
    patent, due to the Board’s failure to determine what the
    ’830 patent describes as the structure (i.e., the algorithm
    in combination with the processor and transceiver)
    for
    performing the “arrangement for reactivating the link”
    function. Like Donaldson, the Board here impermissibly
    treated the means-plus-function limitation in its patentability
    analysis as if it were a purely functional limitation.

    Of Donaldson


    In Donaldson, the PTO rejected Donaldson’s claims by
    construing a means-plus-function limitation to encompass
    any means capable of performing the recited function,
    giving no consideration to the content in the specification.
    Id. The PTO argued that such a practice was permissible
    under the broadest reasonable interpretation standard
    used by the agency. Id. at 1194–95. We rejected the
    PTO’s view, holding that the agency must follow the plain
    language of §112 ¶ 6.7 Id. at 1193. We explained that the
    construction of a means-plus-function limitation under
    § 112 ¶ 6 “must look to the specification and interpret
    that language in light of the corresponding structure,
    material, or acts described therein, and equivalents
    thereof, to the extent that the specification provides such

    disclosure.” Id. We “h[e]ld that paragraph six applies
    regardless of the context in which the interpretation of
    means-plus-function language arises, i.e., whether as part
    of a patentability determination in the PTO or as part of a
    validity or infringement determination in a court.” Id. In
    other words, § 112 ¶ 6 “sets a limit on how broadly the
    PTO may construe means-plus-function language under
    the rubric of ‘reasonable interpretation,’” and “the PTO
    may not disregard the structure disclosed in the specification
    corresponding to such language when rendering a
    patentability determination.”8 Id. at 1194–95.

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  • Federal Circuit Again Finds an Abuse of Discretion in Denying a Fee Award

    Judge Reyna’s opinion, Adjustacam, LLC v. Newegg, Inc., was handed down Wednesday and is available here.  From the opinion (pp. 10-16):
    The district court erred by ignoring our mandate “to evaluate whether this case is ‘exceptional’ under the totality of the circumstances and a lower burden of proof” in the first instance. Remand Order, 626 F. App’x at 991. Instead of engaging in an independent analysis, the district court adopted the previous judge’s factual findings wholesale. . . .

    The district court’s failure to follow our mandate is sufficient reason to find an abuse of discretion. Separate and apart from that issue, however, the district court’s clearly erroneous findings about the substantive strength of AdjustaCam’s case independently support reversal. . .  .

    The district court found that the strength of AdjustaCam’s litigation position was not exceptional because Newegg’s ball-and-socket products were constrained in such a way that AdjustaCam could reasonably argue they rotated on a single axis. J.A. 6. But AdjustaCam did not advance that argument. Instead, AdjustaCam argued that the constraint on Newegg’s ball-and-socket joint limited the rotation to a single axis at a time. See J.A. 482–83; see also J.A. 484 (acknowledging “two axes” but arguing “they are separate”). AdjustaCam did not introduce any evidence that Newegg’s ball-and-socket products were limited to a single axis of rotation. We find no dispute that Newegg’s cameras rotate about at least two axes. As such, there is no possible way for Newegg’s products to infringe the ’343 patent. No reasonable factfinder could conclude that Newegg’s products infringe; therefore, AdjustaCam’s litigation position was baseless. These are traits of an exceptional case. The district court’s contrary conclusion was based on “a clearly erroneous assessment of the evidence.” Highmark, 134 S. Ct. at 1748 n.2. Fees are warranted. 

    Octane disclosed another reason why this case is exceptional that was not considered by the district court: AdjustaCam litigated the case in an “unreasonable manner.” Octane, 134 S. Ct. at 1756. This measure of exceptionality is evident through AdjustaCam’s repeated use of after-the-fact declarations. . . .

    Finally, we take note of AdjustaCam’s damages model. We agree with the district court that there is no minimum damages requirement to file a patent infringement case. J.A. 7. Asserting seemingly low damages against multiple defendants—or settling with defendants for less than the cost of litigation—does not necessarily make a case “exceptional” under § 285. But here, AdjustaCam asserted nuisance-value damages against many defendants, settled with them for widely varied royalty rates, and continued to press baseless infringement contentions well past an adverse Markman order and expert discovery. The original judge stated that AdjustaCam’s damages theory was not “so outrageous and unreliable to support an award of attorney fees,” J.A. 9, which the subsequent judge repeated, J.A. 1_6. Under the governing clearly erroneous standard of review, we would be inclined to affirm if AdjustaCam’s damages methodology were the only issue. In light of AdjustaCam’s frivolous infringement argument and unreasonable manner of litigation, however, we conclude that the district court clearly erred by failing to consider AdjustaCam’s damages methodology as part of a totality-of-the-circumstances analysis. The irregularities in AdjustaCam’s damages model and the purported nuisance value of many of its settlements should have played a role in the evaluation of whether this is case exceptional.

    Meanwhile, in a nonprecedential opinion handed down the same day (Parallel Networks, LLC v. Kayak Software Corp.), the court (per Judge Chen) affirmed a denial of a fee award, on the ground among others that there was some room for debate (albeit not enough to overcome a motion for summary judgment) over whether the defendants’ “applets” infringed.  See pp. 7-8 (“The defendants first contend that the district court abused its discretion in concluding that Parallel Networks had a plausible infringement theory because their applets  were no different than those accused applets we previously held were non-infringing. But that is not quite so. . . .  [S]ome daylight existed between the accused applets from our earlier decision and the accused applets here.”).  Overall, though, the Federal Circuit over the past month arguably seems to be showing a somewhat greater willingness to require fee awards, see previous discussion on this blog here and here.

    For coverage of the Adjustacam case on Patently-O, see here.

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