• LinkedIn’s Patent Strategy

    LinkedIn was a rapidly growing company with only 22 patents in its portfolio in 2012, putting itself at high risk for patent assertion. With a revenue reaching nearly $1 billion and a growth of 86%, LinkedIn knew it had to develop a patent strategy to reduce its risk profile. So what was LinkedIn’s patent strategy and how did it increase its patent filings? Let’s start at the beginning… The opportunities for risk mitigation can be divided into two categories: increasing organic filings to…

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  • WIPO’s Gurry: Artificial Intelligence, Gene Editing Latest ‘Winners’ In Innovation

    The main winners of innovation are technologies that enable market application, with gene editing and artificial intelligence as two examples, Francis Gurry, director general of the World Intellectual Property Organization, told a panel discussion last week. Thomas Cueni, director general of the International Federation of Pharmaceutical Manufacturers & Associations (IFPMA), said at the same event that everybody benefits from innovation.

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  • PTAB Life Sciences Report

    By John Cravero — About the PTAB Life Sciences Report: Each month we will report on developments at the PTAB involving life sciences patents. Celltrion, Inc. v Genentech, Inc. PTAB Petition: IPR2017-01121; filed March 21, 2017. Patent at Issue: U.S. P…

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  • CAFC affirms ED Tex in ContentGuard v Google

    From ContentGuard v. Google [ Appeals from the United States District Court for the
    Eastern District of Texas in Nos. 2:14-cv-00061-JRG, 2:16-cv-00176-JRG, Judge J. Rodney Gilstrap. ]

    To be clear, there is no defense to infringement of “practicing the prior art”:

    The “practicing the prior art defense typically refers
    to the situation where an accused infringer compares the
    accused infringing behavior to the prior art in an attempt
    to prove that its conduct is . . . noninfringing . . . because
    the accused conduct is simply practicing the prior art.”
    Cordance Corp. v. Amazon.com, Inc., 658 F.3d 1330, 1337
    (Fed. Cir. 2011) (internal quotation marks omitted). We
    have made it “unequivocally clear . . . that there is no
    practicing the prior art defense to literal infringement.”
    Tate Access Floors, Inc. v. Interface Architectural Res.,
    Inc., 279 F.3d 1357, 1365 (Fed. Cir. 2002) (internal quotation
    marks omitted). Therefore, parties are prohibited
    from arguing that a plaintiff “must prove . . . that . . . the
    accused devices embody all the limitations in the asserted
    claims, and in addition, [that the] accused devices must
    not be an adoption of the combined teachings of the prior
    art.” Baxter Healthcare Corp. v. Spectramed, Inc., 49 F.3d
    1575, 1583 (Fed. Cir. 1995).

    Of objecting:

    As an initial matter, ContentGuard concedes that it
    did not object on the grounds that Google raised an improper
    practicing the prior art defense before the District
    Court. Oral Arg. at 6:28–57, http://oralarguments.cafc.
    uscourts.gov/default.aspx?fl=2016-2430.mp3. Instead,
    ContentGuard objected on the grounds of prosecution
    disclaimer. See J.A. 10704–07. Because ContentGuard
    failed to identify the proper grounds for its objection
    below, ContentGuard failed to preserve its claim of error.
    See Fed. R. Evid. 103(a) (“A party may claim error in a
    ruling to . . . exclude evidence only if . . . (1) . . . a party, on
    the record . . . (B) states the specific ground, unless it was
    apparent from the context
    . . . .” (emphasis added)).
    Therefore, these arguments are waived. See Singleton v.
    Wulff, 428 U.S. 106, 120 (1976) (“It is the general
    rule . . . that a federal appellate court does not consider an
    issue not passed upon below.”).2

    footnote 2 relates to undeveloped arguments:

    Although ContentGuard fashions its arguments to
    this court as objections to “practicing the prior
    art/prosecution disclaimer,” see, e.g., Appellant’s Br. 38,
    41, 43 (internal quotation marks omitted), ContentGuard
    provides only bare assertions of prosecution disclaimer
    that we will not review, see SmithKline Beecham Corp. v.
    Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (declining
    to consider undeveloped arguments).

    ***Separately, in ContentGuard v. Apple:

    ContentGuard appeals the District Court’s construction
    of the usage right limitation and denial of its Motion
    for a New Trial. Apple conditionally cross-appeals the
    District Court’s denial of its Motion for Judgment on the
    Pleadings Declaring the Patents-in-Suit Patent-Ineligible,
    Final Judgment that the Asserted Claims are not invalid,
    and the denial of its Motions for JMOL and for a New
    Trial. We affirm.


    ContentGuard argues that a new trial is warranted
    for two reasons. First, ContentGuard argues that the
    “[t]he District Court’s construction [of the] usage
    right[ limitation] was error because it is inconsistent with
    the claims, the specification, the prosecution history, and
    the commercial embodiment ContentGuard built.” Appellant’s
    Br. 30; see id. at 30–47.4 Second, ContentGuard
    contends that the District Court committed “evidentiary
    error.” Id. at 48; see id. at 48–51. After articulating the
    applicable standards of review, we address these arguments
    in turn.

    Of evidentiary error:

    Although ContentGuard describes
    examples of Apple’s purported “gamesmanship,” id. at 51,
    ContentGuard fails to identify any erroneous evidentiary
    rulings by the District Court that “had a substantial effect
    on the outcome of the trial” sufficient to constitute an
    abuse of discretion, Verizon Commc’ns, 761 F.3d at 430;
    see generally Appellant’s Br., even after Apple identified
    the deficiencies of ContentGuard’s contentions, see CrossAppellant’s
    Br. 64 (stating that ContentGuard “fails to
    identify any specific rulings to be overturned on appeal—
    much less explain how they reflect an abuse of discretion”);
    see generally Appellant’s Reply. A party’s failure to
    make arguments under the operative legal framework
    “typically warrants a finding of waiver.” Nan Ya Plastics
    Corp. v. United States, 810 F.3d 1333, 1347 (Fed. Cir.
    2016) (citing, inter alia, Carducci v. Regan, 714 F.2d 171,
    177 (D.C. Cir. 1983) (finding waiver when “counsel has
    made no attempt to address the issue” because “[t]he
    premise of our adversarial system is that appellate courts
    do not sit as self-directed boards of legal inquiry and
    research, but essentially as arbiters of legal questions
    presented and argued by the parties before them”)).
    Because ContentGuard failed to identify the District
    Court rulings purportedly requiring reversal or to apply
    the appropriate legal framework in its analysis, we decline
    to address its arguments here.

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