• 凹凸
    in:  | 

    凹凸

                            目次はこちら

    凹凸

    (IRREGULARITIES)
    $$ However, it should be understood that, in reality, the distortion would be in the form of irregularities over the entire surfac…

  • CAFC finds that CD Cal  failed to provide a “full and fair opportunity to ventilate the issues.”
    in: 未分類  | 

    CAFC finds that CD Cal failed to provide a “full and fair opportunity to ventilate the issues.”

    The opinion begins


    Defendant Zinus, Inc., appeals from a summary
    judgment entered in favor of plaintiff Cap Export, LLC,
    and third-party defendants Abraham Amouyal and
    4Moda Corp. (collectively, “Cap Export”) by the United
    States District Court for the Central District of California.
    The district court ordered Zinus, the owner of U.S. Patent
    No. 8,931,123 (“the ’123 patent”), to file a motion for
    summary judgment of validity of that patent. Following
    briefing, the court held two of the asserted claims of
    Zinus’s patent invalid for obviousness. The court then
    dismissed all of Zinus’s counterclaims with prejudice. We
    vacate the district court’s summary judgment and remand
    for further proceedings.

    Of the issues leading to decision to vacate:


    On appeal, Zinus raises a number of objections to the
    district court’s summary judgment ruling. Three of
    Zinus’s arguments are persuasive.

    First, the district court improperly granted summary
    judgment for Cap Export sua sponte, without proper
    notice to Zinus. “It is well established that a district court
    has ‘the power to enter summary judgment[] sua sponte,
    so long as the losing party was on notice that she had to
    come forward with all of her evidence.’” Mikkelsen Graphic
    Eng’g, Inc. v. Zund Am., Inc., 541 F. App’x 964, 972
    (Fed. Cir. 2013) (quoting Celotex Corp. v. Catrett, 477 U.S.
    317, 326 (1986)); see also Albino v. Baca, 747 F.3d 1162,
    1176 (9th Cir. 2014) (“Even when there has been no crossmotion
    for summary judgment, a district court may enter
    summary judgment sua sponte against a moving party if
    the losing party has had a full and fair opportunity to
    ventilate the issues involved in the matter.”). Rule 56(f)
    of the Federal Rules of Civil Procedure provides that
    district courts may grant summary judgment for a nonmovant
    only after “giving notice and a reasonable time to
    respond.” See Mikkelsen, 541 F. App’x at 972–73.

    AND


    When it ordered Zinus to make a motion for summary
    judgment of validity, the district court provided no notice
    that the court was contemplating entering summary
    judgment of invalidity. Normally, if a patent holder were
    to lose a motion for summary judgment of validity, the
    result would be a trial, not a judgment of invalidity. In
    fact, because a patent carries a presumption of validity
    and a challenger must prove invalidity by clear and
    convincing evidence, a patentee need not present any
    factual evidence to prevail on a motion for summary
    judgment of validity. Massey v. Del Labs., Inc., 118 F.3d
    1568, 1573 (Fed. Cir. 1997). The district court gave no
    notice that it might grant summary judgment against
    Zinus.
    Furthermore, Zinus lacked a “full and fair opportunity
    to ventilate the issues.” Gospel Missions of Am. v. City of
    Los Angeles, 328 F.3d 548, 553 (9th Cir. 2003). Because of
    the unusual sequence of briefs and evidence, Zinus did not
    have an opportunity to depose Cap Export’s expert, whose
    declaration was first presented as part of Cap Export’s
    sur-reply filed on November 11, 2016. Nevertheless, the
    district court relied on the expert’s testimony and found it
    “credible.” Zinus was also denied an opportunity to
    present evidence of objective indicia of nonobviousness,
    which could have supported its position that the claims of
    the ’123 patent were not obvious. See, e.g., Cheese Sys.,
    Inc. v. Tetra Pak Cheese & Powder Sys., Inc., 725 F.3d
    1341, 1353 (Fed. Cir. 2013). Although Zinus stated in its
    reply brief in support of its motion for summary judgment
    of validity that it was not “at this time asking the Court to
    consider any objective evidence of nonobviousness,” Zinus
    was entitled to present evidence of nonobviousness,
    including objective evidence of nonobviousness, in defending
    against a motion for summary judgment of invalidity.
    Under these circumstances, Zinus lacked both notice
    that the district court would enter summary judgment of
    invalidity sua sponte and an opportunity to present evidence
    and argument as to why summary judgment should
    not be entered against it. Accordingly, the district court’s
    entry of summary judgment in Cap Export’s favor was
    procedurally improper.

    Of the second point

    As neither party raised arguments regarding the validity of
    claim 2, the district court erred in dismissing that claim
    with prejudice. In addition, although a district court may
    decline to exercise supplemental jurisdiction over state
    law claims after dismissing federal claims pursuant to 28
    U.S.C. § 1367(c)(3), any such dismissal must be without
    prejudice. Davila v. Smith, 684 F. App’x 637, 638 (9th
    Cir. 2017) (citing Gini v. Las Vegas Metro. Police Dep’t, 40
    F.3d 1041, 1046 (9th Cir. 1994)). Accordingly, the district
    court erred in dismissing claim 2 of the ’123 patent and
    Zinus’s state law claims with prejudice.

    Of the third point


    Third, the district court improperly relied on the “bed
    in a box” prior art reference despite a factual dispute
    regarding whether the reference predated the ’123 patent.
    Cap Export alluded to the “Amazing Bed in a Box” website
    only in its April 2016 letter to Zinus’s counsel; it did
    not assert the website as prior art in any of its briefs to
    the district court in connection with Zinus’s motion for
    summary judgment of validity. In its opening brief on
    that motion, Zinus argued that the website does not
    predate the priority date of the ’123 patent, which is
    September 25, 2013, because the website appears to have
    been posted in November 2014.2 It appears that Cap
    Export may have abandoned the reference altogether, as
    Cap Export did not address that reference in its opposition
    brief before the district court. See Shakur v. Schriro,
    514 F.3d 878, 892 (9th Cir. 2008) (holding that a party
    abandons claims by not defending them in opposition to a
    motion for summary judgment); Stichting Pensioenfonds
    ABP v. Countrywide Fin. Corp., 802 F. Supp. 2d 1125,
    1132 (C.D. Cal. 2011) (“[I]n most circumstances, failure to
    respond in an opposition brief to an argument put forward
    in an opening brief constitutes waiver or abandonment in
    regard to the uncontested issue.”).
    Nevertheless, the district court relied on that reference
    in concluding that claims 1 and 3 would have been
    obvious. The court explained that “someone with ordinary
    skill in the art would view the Tiffany Bed (with a
    headboard compartment), the Aspelund bed (with legs
    attached to the footboard), and the Bed in a Box (where
    all pieces of the bed fit in one compartment), and combine
    these references . . . .” At best, the disputed fact regarding
    the publication date of the “bed in a box” reference
    precludes reliance on that reference for purposes of summary
    judgment. See Tennison v. City & Cty. of San
    Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009); Lamle v.
    Mattel, Inc., 65 F. App’x 293, 295 (Fed. Cir. 2003).

  • Stryker Seeks Intellectual Property Manager for Mahwah, NJ
    in: Attorneys, Bioengineering, Biomedical Engineering, intellectual property jobs, ip jobs, IP News, IPWatchdog Articles, IPWatchdog JobOrtunities™ Help Wanted, IPWatchdog.com Articles, job, Job Board, Job Board 2.0, jobs, Law Firms, Mechanical Engineering, patent jobs, People, Press Releases, Stryker  | 

    Stryker Seeks Intellectual Property Manager for Mahwah, NJ

    Stryker is seeking an intellectual property manager for it’s Mahwah, NJ Location.  The Stryker IP Manager will provide IP support for the Spine and Joint Replacement Divisions. These are fast paced environments with a focus on innovation and strategy. The IP Manager will be responsible for managing the full patent lifecycle including: preliminary patentability assessments, liaise with outside counsel on the drafting of applications and leading efforts for the maintenance/annuity payment…

  • Monday miscellany

    While Tom Gauld‘s humorous look at authorship (right) may not accord with any formal statistical breakdown, anyone who has worked in the field of copyright over the decades will know that there is more than a ring of truth about it: visitations from the dead and divine inspiration have each had their day in court.  Conventional one-person-one-book authorship still predominates, and the demand among readers for light autobiographies of young and sometimes semi-literate sports personalities, sympathetically ghosted by a skilled narrator–cum-amanuensis, ensures that ghost written works will continue to occupy a substantial proportion of supermarket bookshelves for some time to come.  Talented animals are better known for their artistic works, though, and the 9.5% score for ‘nobody knows’ category looks like an overestimate now that the attractions of celebrity authorship and the legal protection of authors’ moral rights make it more profitable to ensure that everyone knows who you are when you write a novel.  Anyway, this cartoon inspired Merpel to ask readers which categories of author Tom Gauld may have overlooked

    Article and sidebar poll on the European Inventor Award.  On Thursday of last week fellow Kat Darren composed a blogpost that took a sharp and unfavourable look at the European Inventor Award. Apart from receiving a bagful of readers’ comments, this post also launched a sidebar poll which has attracted over 200 responses so far — most of which are not at all supportive either of the event itself or of the European Patent Office’s involvement in it. However, there’s plenty of time — ten days — for this to change, so do take the opportunity to cast your vote. If you never visit the IPKat’s home page because you only read posts as emails, you will find the poll on the top of the side bar on the left hand side of that page.

    Sadly, there’s no monopoly
    on financial disappointment

    While on the subject of the European Inventor Award, the IPKat received the following comment by email from Bojan Pretnar. Bojan, who was the first Director of the Slovenian IP Office and held that position for two decades, was also a World Intellectual Property Organization (WIPO) official from 2000 to 2010 and is a proud alumnus of the Max-Planck Institute, Munich. Writes Bojan:

    “During my work at WIPO I was quite frequently, though informally and rather softly, criticising the WIPO medal awards, mainly on the basis of a sad personal experience back in late eighties of the previous century, when a poor inventor from my country (now Slovenia, then still Yugoslavia) was awarded by a similar national award for his invention. The award encouraged the man to spend all his money on filing patent applications abroad, notably in the UK and USA; while the patent was granted in the UK, it was rejected in the USA, where the inventor had the greatest hope to sell or license it. Eventually, the poor man went bankrupt and immediately thereafter he died from a sudden heart attack.

    The lesson I learned from the case is that such awards not only are commercially meaningless, but may even convey false signals to inventors. Though this lesson may not be relevant for the EPO’s awards, it may shed some additional light on such practices. In any case, let me repeat that you are absolutely right that granting such awards are not the task of EPO – at least not under the European Patent Convention.

    To be fair, invention awards competitions do not normally come with any promise of financial success.  However, the point is well made that there is no necessary connection between the commercial potential of a patent on the one hand and inventive merit, social utility or other non-market criterion by which an invention’s excellence may be measured — and this link often exists in the mind of the inventor, who all too often needs no encouragement to believe in the commercial value of his invention.

    Around the weblogs. The 1709 Blog features a post by our good friend Marie-Andrée Weiss on the copyright status — or lack of it — of a 1967 photo of Jimi Hendrix. Over on the Class 46 European trade mark blog, Edith Van den Eede explains the outcome of an opposition to the filing of an application to register as a Community trade mark the figurative mark PORTOBELLO ROAD No. 171 LONDON DRY GIN LONDON ENGLAND, based on nothing other than the word PORTO — which happens to be a Protected Designation of Origin [this doesn’t seem right to Merpel, who likes a gin or two and can’t see any justifiable real-world reason why the applicant’s mark can’t be registered for gin when the PORTO PDO is for Port …]. Over on IP Tango, Patricia Coverrubia, in “Brazil: Federal Court decides for cancellation of a trademark without prior opposition at INPI”, shows how even a fairly conservative and formal legal system can throw up the occasional procedural surprise.

    Continue Reading ...
  • Substandard malaria drugs outnumber fakes, research shows – Daily Trust


    Drug Discovery & Development
    Substandard malaria drugs outnumber fakes, research shows
    Daily Trust
    Substandard or degraded drugs were more prevalent than falsified ones in Enugu, according to the research, and poor quality drugs were frequently found in patent medicine vendors – also known as drug shops, which are the main source of treatment for
    Study in Nigeria Finds 1 in 10 Malaria Drugs Are Poor QualityDrug Discovery & Development

    all 2 news articles »

    Continue Reading ...