Claim Construction

News & Analysis as of

Construction Lien Act reform and promptness of payment

On September 26, 2016, an expert review report titled, "Striking the Balance: Expert Review of Ontario's Construction Lien Act" (the Report) released findings on the problems associated with delinquent payments and the...more

Complainant Cannot Move For Summary Determination Against Its Own Interests

Judge Pender issued Order No. 19 in Certain Access Control Systems and Components Thereof, Inv. No. 337-TA-1016, denying Complainant The Chamberlain Group’s (“CGI”) motion for summary determination that the accused products...more

Internet Advertising Claims Deemed Not Eligible for Covered Business Method Patent Review

In a decision dated February 27, 2017, the Board denied institution of Google Inc.’s petition for Covered Business Method Patent Review of claims 20, 21, 23–26, 28, and 29 of U.S. Patent No. 6,128,651 (“the ’651 patent”)...more

Complaints About Claim Construction Irrelevant Without a Showing of How it Would Make a Difference

In Comcast IP Holdings I LLC v. Sprint Communications Company LP, [2015-1992] (March 7, 2017) the Federal Circuit affirmed a $7.5 million dollar award for infringement of U.S. Patent Nos. 8,170,008, 7,012,916 and 8,204,046...more

Federal Circuit Vacates PTAB Claim Construction and Obviousness Conclusion in Eli Lilly’s IPR against LA BioMed

The Federal Circuit held that a rat study in a provisional application and a conversion method in an uncited reference did not support the claimed human dosage form in Los Angeles Biomed. Research Inst. v. Eli Lilly & Co.,...more

Los Angeles Biomedical Research Institute v. Eli Lilly & Co. (Fed. Cir. 2017); Eli Lilly & Co. v. Los Angeles Biomedical Research...

The Federal Circuit handed down two related opinions last week, Los Angeles Biomedical Research Institute v. Eli Lilly & Co. and Eli Lilly & Co. v. Los Angeles Biomedical Research Institute, one of which raised the question...more

Disavowal is Not Limited to What is Necessary; A Patentee May Give Up More than Necessary

In Technology Properties Limited LLC v. Huawei Technologies Co., Ltd., [2016-1306, 2016-1307, 2016-1309, 2016-1310, 2016-1311] (March 3, 2017), the Federal Circuit vacated and remanded the case because the district court...more

Federal Circuit Vacates and Remands to PTAB Because of Insufficient Analysis of Obviousness in IPR

In a unanimous opinion issued on February 14, 2017, a three-judge panel of the Federal Circuit vacated the Board’s obviousness determination in Apple’s inter partes review against PersonalWeb and remanded for further...more

Judge Chhabria Excludes Damages Survey Based on the Survey’s Reliance Upon a Rejected Claim Construction

On February 14, 2017, Judge Chhabria of the Northern District of California granted, in part, Apple’s motion to exclude the expert report of Unwired Planet’s survey expert, Dr. Allenby. Dr. Allenby was hired to conduct a...more

USPTO Claim Construction Standards for Inter Partes Review Proceedings

Confirming long-standing U.S. Patent & Trademark Office (USPTO) practice, the Supreme Court in the Cuozzo Speed Techs. v. Lee decision (Cuozzo), affirmed the USPTO’s broadest reasonable interpretation standard as the...more

3D Cinema Systems: ITC Declines to Apply Issue Preclusion Based on PTAB’s IPR Decision

In 3D Cinema Systems (Inv. 939), the Commission issued an opinion that explained why it did not give deference to a decision of invalidity by the Patent Trial and Appeal Board (PTAB) in an inter partes review (IPR)....more

PTAB Invokes 35 U.S.C. § 112(6) To Construe Patent Claim Term During IPR Proceeding

In a recent decision (IPR2016-01372) to institute an Inter Partes Review (IPR), The United States Patent Trial and Appeal Board (“PTAB”) invoked pre-AIA 35 U.S.C. § 112 paragraph 6 (now 35 U.S.C. § 112(f)) to interpret the...more

Federal Circuit Case Highlights the Importance of a Well Designed Provisional Patent Application Strategy

Recently, the Court of Appeals for the Federal Circuit decided MPHJ Technology Investments, LLC v. Ricoh Americas Corporation, et al., No. 2016-1243 (Fed. Cir. Feb. 13, 2017). This case highlights the importance of a...more

Federal Circuit Knocks Out Patents After CBM Challenge

Apple successfully invalidated three patents for failure to recite patent eligible subject matter. Apple, Inc. v. Ameranth, Inc., 2015-1792, 2015-1793 (Fed. Cir. 2016). The patents relate to synchronous communication systems...more

PTAB Changes Final Written Decision Upon Rehearing and Finds Additional Claim Unpatentable

The Patent Trial and Appeal Board (PTAB or “Board”) granted a petitioner’s request for rehearing and modified its Final Written Decision finding an additional claim unpatentable. Previously, the PTAB issued a Final Written...more

PTAB Terminates Interference Involving Revolutionary Gene Modification Technology

On February 15, 2017, the Patent Trial and Appeal Board (PTAB) terminated a patent interference between the Broad Institute and the University of California, finding the parties’ respective claims to CRISPR-Cas9 systems and...more

2016’s Top Patent and Trade Secret Developments for Chemistry and Nanotechnology

While 2016 saw several significant IP developments regarding the USPTO claim construction standard and the standard of review of USPTO decisions, the following three developments may have the greatest impact on how in-house...more

Just Because One Could Doesn’t Mean One Would

In Personal Web Technologies, LLC v. Apple, Inc., [2016-1174] (February 14, 2017), the Federal Circuit affirmed the Board’s claim construction but vacated the Board’s obviousness determination because the Board did not...more

Federal Circuit Review | January 2017

PTAB’s Final Written Decision in IPR Must Explain Its Basis for a Motivation to Combine References - In In Re: Nuvasive, Inc., Appeal No. 2015-1670, the Federal Circuit vacated the PTAB’s obviousness finding in an IPR,...more

Can You Be Reasonably Certain a Water Balloon Is Substantially Filled? Indefiniteness in Tinnus v. Telebrands

In Tinnus Enterprises, LLV v. Telebrands Enterprises (Fed. Cir. 2016-1410), the CAFC considered whether a claim requiring that a container (think water balloon) be “substantially filled” was indefinite under 35 USC §112....more

Briefing Complete in Appeal in Amgen v. Apotex

The parties in Amgen v. Apotex have completed briefing in Amgen’s appeal to the Federal Circuit from the district court’s judgment of noninfringment. As we have previously reported, in September 2016 the District Court for...more

Recursive and Iterative Algorithms in Patent Claims

Some inventions operate in a recursive or iterative manner. This could be so of a machine that repeats actions or functions on a single article or to produce multiple articles, or operates on data. ...more

PTAB Grants Rare IPR Request for Rehearing in WesternGeco LLC v. PGS Geophysical AS

The PTAB recently granted a request for rehearing and modified the final written decision in WesternGeco LLC v. PGS Geophysical AS, IPR2015-00313, Paper 43 (P.T.A.B., Feb. 3, 2017). This is an extremely rare event....more

Managing Patent Portfolios and Drafting Applications To Withstand IPR Challenges

Since implementation of the Leahy-Smith America Invents Act, inter partes review (“IPR”) and other post-grant proceedings have been used successfully to challenge and invalidate thousands of patent claims. Over 2,000 IPR...more

Full Disclosure: The Northern District Amends Its Local Rules to Require Early Damages-Related Disclosures

Patent litigants in the Northern District of California will have something new to argue over following the Court’s approval in January of Patent Local Rule amendments that impose damages-related disclosure requirements. The...more

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