• Course Packs For Education Ruled Legal In India: Triumph For Access To Educational Materials

    On 9 May 2017, a five year court battle between publishers and universities finally came to an end when the Supreme Court of India dismissed an appeal by the Indian Reprographic Rights Organization (IRRO) challenging an earlier judgment of Delhi High Court that ruled course packs in India legal for educational purposes.

    In a case that gained wide international attention, issues such as the cost of textbooks in India were raised, students agitated for fair access to educational materials, and the jurisprudence on copyright in India has taken a leap forward. In this guest blog, Anubha Sinha, Programme Officer on Openness and Access to Knowledge at the Centre for Internet and Society India, discusses the judgment in the case known as the ‘Delhi University photocopy’ case, and what it means for access to educational materials in India.

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  • Qualcomm ramps up its patent battle against Apple by asserting six non-SEPs in Section 337 complaint filed with ITC

    The Qualcomm complaint alleges Section 337 violations of patent infringement caused by the importation and sale of certain mobile electronic devices and radio frequency and processing components facilitated by Cupertino, CA-based consumer mobile electronics giant Apple, Inc… “Qualcomm’s inventions are at the heart of every iPhone and extend well beyond modem technologies or cellular standards,” Dan Rosenberg, executive VP and general counsel at Qualcomm, is quoted as saying. “The patents we…

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  • Patent Portfolio Valuations – Importance of IP and Patents

    Even though traditionally valuation professionals have used a combination of cost-based and market-based valuation, more and more practitioners are using income-based valuation in combination with market data.  The income-based model focuses on what potential monetization or potential impact on business a patent portfolio might have, and as such, it is much more dynamic and reliable… For patent portfolios of potential future value, technology risk is preferred over market risk and one could…

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  • Horizon Pharma patents covering Vimovo arthritis pain relief treatment have validity upheld at district court and PTAB

    Irish biopharmaceutical firm Horizon Pharma announced that two of its patents covering Vimovo, a pain relief treatment for arthritis patients, had their validity upheld in a patent infringement case filed in the District of New Jersey (D.N.J.). The decision allows Horizon Pharma to move forward with its argument that at least one of the two upheld patents would be infringed by generic versions of Vimovo being developed by Indian drugmakers Lupin Limited and Dr. Reddy’s Laboratories as well as…

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  • The Effects of the Actavis Decision on Reverse Payment Settlement Agreements in ANDA cases — Four Years After

    By Kevin E. Noonan — In 2013, the U.S. Supreme Court rendered its decision in FTC v. Actavis, finding that although so-called reverse payment settlement agreements were not per se antitrust violations in cases brought against generic drug makers by under 35 U.S.C. § 271(e)(2), the potential for anticompetitive effects made them subject to antitrust scrutiny under the “rule of reason” standard. Four years on it is instructive to examine the effects of this decision, on the narrow issue of whether parties to ANDA litigation continue to enter into such settlements, and the broader question of whether generic drug products…

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  • Newspapers Fight Back Against Facebook and Google for Stronger IP Protection

    In most intellectual property law courses and many property courses in the U.S., the INS v. AP case is taught.  In that case, the U.S. Supreme Court created the INS misappropriation claim which essentially protects the gathering of “hot” or “fresh” news from free riding competitors.  The decision was a close one and has been criticized over the years.  Occasionally, it rears its head in cases dealing with financial information and in one case seemed to cover paparazzi photos.  My impression has always been that the U.S. Supreme Court was attempting to protect the news gathering business because of the importance of having an informed citizenry in a democracy. 
    Interestingly, at the confluence of fake news and President Trump’s attack on the media, the Washington Post added a slogan to its website: “Democracy Dies in Darkness.”  Prior to the fake news issue and presidential attack on the media, the newspaper business had not done well—arguably because of digital media and the internet.  Newspaper businesses through the News Media Alliance are now attempting to obtain an exemption to antitrust law which will allow them to negotiate collectively against entities such as Facebook and Google.  The Los Angeles Times states:

    By banding together news outlets would have more leverage against two companies that command more than 70% of the $73-billion dollar digital advertising in the U.S.  By comparison, newspaper ad revenue in 2016 amounted to $18 billion, down from $50 billion a decade ago, according to the Pew Research Center. 

    According to the article, “pushing for” stronger intellectual property protection is part of the goal.  It will be interesting to see whether the Trump Administration grants the exemption. 

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    $$ Terminal equipment has a standard capacitance value. / 端末装置は、標準的なキャパシタンス値を有する。(USP7573824)

    $$ Similarly, the distance to an open circuit is determined by the capacitance to earth between the cable pair. / 同様に、開放回路の距離はケーブルの対間のアースをとるキャパシタンスによって判断される。(USP6912270)

    $$ The trimming capacitors could suitably provide 128 equal steps of total capacitance. / トリミングキャパシタは、全体のキャパシタンスの128等価ステップを適切に提供することができる。(USP6681102)

    $$ Effectively, the inductance is in parallel with the capacitance of the feeder 14. / インダクタンスは給電線14のキャパシタンスと並列であることが有利である。(USP6583685)

    $$ The receiver expects to "see" a pure capacitance on its antenna input. / この無線受信機は、そのアンテナ入力部において純粋なキャパシタンスを「見る」ことを予定している。(USP6583685)

    $$ The required capacitance will be dependent on the switching time and current drawn. / 必要とされる静電容量は、スイッチイング時間および引き出される電流に依存している。(USP6265847)

    $$ In FIG. 3, the capacitance between the A and B wires is shown as having a value C1. 図3では、ワイヤAとワイヤB間のキャパシタンスが値C1を有するとして示されている。(USP7573824)

    $$ The capacitance between the whisker electrode 210 and the return electrode 212 is typically in the region of 0.5 to 5 pF. (USP02022836)


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  • CAFC addresses permanent injunctions in Genband. Apple III and Apple IV mentioned.

    The outcome was remand:

    Appellant Genband US LLC sued Metaswitch Networks Corp. and Metaswitch Networks Ltd. (together, Metaswitch) for patent infringement. After a jury found that Metaswitch infringed various claims of several of Genband’s patents, and that the claims at issue had not been proven invalid, Genband sought a permanent injunction. The district court denied the request, concluding that Genband had not established irreparable harm from the infringing activities. That conclusion, however, may have relied on too stringent an interpretation of the requirement, for an injunction, that the allegedly irreparable harm is being caused by the infringement. Based on the district court’s opinion and the briefing in this court, moreover, we cannot be confident of the answer to the causation question under the standard properly governing the inquiry or whether there is any independent ground for finding no irreparable harm or otherwise denying an injunction. Accordingly, we vacate the denial of the injunction and remand for reconsideration

    At ED Texas:

    The [ED Texas] court also denied Genband’s request for a permanent injunction. Id. at 894–95. The district court rested its denial entirely on the determination that Genband failed to show that it would suffer irreparable harm from Metaswitch’s continued infringement. The court gave two reasons, without indicating that the second reason independently supported its determination. First, the court held that Genband did not demonstrate a causal nexus between the alleged irreparable harm (based on lost sales) and the presence of the infringing features in Metaswitch’s infringing products. Id. at 894–95. In so ruling, the district court stated that “it is Genband’s burden to demonstrate that the patented features drive demand for the product.” Id. at 894. The court borrowed certain language from this court’s decision in Apple, Inc. v. Samsung Electronics Co. (Apple II), 695 F.3d 1370, 1375 (Fed. Cir. 2012) (“The patentee must . . . show that the infringing feature drives consumer demand for the accused product.”), which in turn relied on similar language in Apple, Inc. v. Samsung Electronics Co. (Apple I), 678 F.3d 1314, 1324 (Fed. Cir. 2012) (“If the patented feature does not drive the demand for the product, sales would be lost even if the offending feature were absent from the accused product.”). Before reiterating the “drive demand” principle, the district court quoted this court’s statement in Apple, Inc. v. Samsung Electronics Co. (Apple III), 735 F.3d 1352, 1364 (Fed. Cir. 2013), that “this inquiry should focus on the importance of the claimed invention in the context of the accused product, and not just the importance, in general, of features of the same type as the claimed invention.” Genband, 211 F. Supp. 3d at 894. The district court then noted Genband’s arguments that certain stringency-reducing explanations of “drive demand” are found in both Apple III, 735 F.3d at 1365 and Apple, Inc. v. Samsung Electronics Co. (Apple IV), 809 F.3d 633, 641–42 (Fed. Cir. 2015), cert. denied, 136 S. Ct. 2522 (2016), petition for cert. filed, 85 U.S.L.W. 3460 (U.S. Mar. 10, 2017) (No. 16-1102). But the court did not indicate agreement with Genband that those explanations state the governing law. Genband, 211 F. Supp. 3d at 894.

    Of the error:

    The district court’s opinion, however, leaves us uncertain whether the court relied on too stringent an interpretation of the causal-nexus requirement. The court declared that Genband had to prove that “the patented features drive demand for the product.” Genband, 211 F. Supp. 3d at 894; see id. (quoting Apple II’s reference to “drives consumer demand”). But we cannot be sure that the district court, in demanding such proof, used the standard for causal nexus now established to be the governing standard. The “drive demand” formulation, on its face, is susceptible to importantly different interpretations, some stricter, some more flexible, at least in situations where the product at issue has multiple purchasers and multiple features that different purchasers might assign different weights in their purchasing decisions. For example, as the district court in Apple III had assumed, the “drive demand” formulation could require that the infringing feature be “the driver” of decisions by consumers treated collectively as a kind of unit, even requiring proof that no or almost no buyers would buy the product but for the infringing feature. Or it could require less, e.g., that the infringing feature be “a driver” of decisions by a substantial number of individual consumer decision-makers considering multiple features

    The CAFC referenced a “standards” issue:

    In the present case, Genband specifically invoked the standards laid out in Apple III and Apple IV that we have just summarized. The district court, however, referred to those standards only by stating that Genband “argue[d]” for them. Genband, 211 F. Supp. 3d at 894. In these circumstances, we see no sufficient basis for inferring that the district court actually used those standards, rather than an unduly stringent test, to interpret and apply the “drive demand” standard. The clarified standards set forth in Apple III and Apple IV govern the causal-nexus inquiry, at least in a multi-purchaser, multi-component situation in which only a component of a larger product or system is covered by the patent in suit.2 The formulations in those decisions avoid a too-demanding causal-nexus requirement that might be attributed to the “drive demand” language. The standard prescribed by Apple III and Apple IV, as appropriate to the multi-purchaser, multi-component context, lies between the unduly stringent “sole reason” standard we rejected in Apple III and Apple IV and the unduly lax “insubstantial connection” standard we rejected in Apple II. The standards seek to reflect “general tort principles of causation,” Apple III, 735 F.3d at 1361, and to make proof of causal nexus practical “from an evidentiary standpoint,” Apple IV, 809 F.3d at 641, in a multipurchaser, multi-component setting.


    We conclude that a remand is needed. We are not in a position to conclude that applying the Apple III/Apple IV standards would make no difference to the district court’s finding of no causal nexus and, hence, no irreparable injury. In its application of the “drive demand” formulation, the district court included just one paragraph, making only a summary reference to Genband’s evidence, without explaining in that paragraph why that evidence was deficient. See id. at 894–95. And in this court, Genband has not only argued about the evidence the district court mentioned in that paragraph but also pointed to extensive additional evidence, not discussed in that paragraph, as relevant to the inquiry. Given the roles of fact-finding and discretion in the inquiry, it is for the district court, not for this court, to undertake application of the proper causal-nexus standard to the full record in this case.

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