Michael Borella

Michael Borella

McDonnell Boehnen Hulbert & Berghoff LLP

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Gust, Inc. v. AlphaCap Ventures, LLC (Fed. Cir. 2018)

Almost two years ago, we covered a dispute in the Southern District of New York (which began in the Eastern District of Texas) involving plaintiff AlphaCap, a non-practicing entity that aggressively asserted its patents...more

10/1/2018  /  Attorney's Fees , CLS Bank v Alice Corp , Patents

The Subject Matter Eligibility of Machine Learning: An Early Take

Machine learning is more than just a buzzword. It represents a fundamental shift in how problems are solved across industries and lines of business. In the near future, a machine learning library may become a standard part...more

9/24/2018  /  Patent Applications , Patent-Eligible Subject Matter , Patents

USPTO Makes Ex Parte Jung an Informative Decision

Earlier this month, the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office (USPTO) changed a number of decisions to "informative" status. An informative decision reflects "the Board's general...more

7/26/2018  /  Patent Trial and Appeal Board , Patents , USPTO

Interval Licensing LLC v. AOL, Inc. (Fed. Cir. 2018)

Interval Licensing brought an action against AOL and several other defendants in the Western District of Washington, alleging infringement of U.S. Patent No. 6,034,652. In a previous ruling, all asserted claims of this...more

7/25/2018  /  AOL , Patent Infringement , Patent Invalidity , Patent-Eligible Subject Matter , Patents

Cellspin Soft, Inc. v. Fitbit, Inc. (N.D. Cal. 2018)

Background - Cellspin sued Fitbit and thirteen other defendants in the Northern District of California alleging infringement of U.S. Patent Nos. 8,738,794, 8,892,752, 9,749,847, and 9,258,698. The defendants filed a...more

7/13/2018  /  Fitbit , Patent Infringement , Patent Invalidity , Patents

Zeroclick, LLC v. Apple Inc. (Fed. Cir. 2018)

Most software inventions are functional in nature. The focus is not on what the invention is so much as what it does. The same physical hardware can be programmed by way of software to carry out an infinite number of...more

6/26/2018  /  Apple , Patent Infringement , Patents , Software Patents

Federal Circuit Denies En Banc Review of Berkheimer and Aatrix

One of the more substantive questions in the recent interpretation of what encompasses patentable subject matter under 35 U.S.C. § 101 is whether facts should play any role in the analysis. The Supreme Court has not been...more

6/4/2018  /  Abstract Ideas , CLS Bank v Alice Corp , En Banc Review , Patent-Eligible Subject Matter , Patents

SAP America, Inc. v. InvestPic, LLC (Fed. Cir. 2018)

SAP America, Inc. (SAP) filed a declaratory judgment action in the Northern District of Texas, alleging that U.S. Patent No. 6,349,291 of InvestPic, LLC (InvestPic) was invalid under 35 U.S.C. § 101. The District Court...more

5/21/2018  /  Patent Invalidity , Patent-Eligible Subject Matter , Patents , SAP America Inc.

Ex Parte Reis (PTAB 2018)

The Patent Trial and Appeal Broad (PTAB) of the U.S. Patent and Trademark Office has often been criticized for being particularly harsh when reviewing appeals of claims rejected by an examiner of grounds of patent-ineligibly...more

5/15/2018  /  Ex Parte , Patent Applications , Patent Trial and Appeal Board , Patent-Eligible Subject Matter , Patents

USPTO Updates Patent Eligibility Guidance in View of Berkheimer

The second part of the patent-eligibility test of Alice Corp. v. CLS Bank Int'l involves an inquiry into whether certain elements of a claim directed to an unpatentable judicial exception are "well-understood, routine, and...more

4/24/2018  /  CLS Bank v Alice Corp , Patent-Eligible Subject Matter , Patents , Section 101 , USPTO

DSS Technology Management, Inc. v. Apple Inc. (Fed. Cir. 2018)

Apple filed two petitions for inter partes review (IPR) against DSS's U.S. Patent No. 6,128,290. The Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office instituted the IPRs and issued final written...more

4/4/2018  /  Apple , Inter Partes Review (IPR) Proceeding , Patent Trial and Appeal Board , Patents , USPTO

Berkheimer Files Response to HP's Petition for En Banc Review

In early February, the Federal Circuit published an opinion in HP Inc. v. Berkheimer stating clearly –- for the first time -- that patent-eligibility under 35 U.S.C. § 101 should be determined as a matter of law, but with...more

4/2/2018  /  CLS Bank v Alice Corp , Patent Litigation , Patent-Eligible Subject Matter , Patents , Section 101

Intellectual Ventures I LLC v. Symantec Corp. (Fed. Cir. 2018)

Intellectual Ventures (IV) sued Symantec in the District of Delaware, alleging infringement of U.S. Patent No. 5,537,533. The District Court invalidated the '533 patent on a summary judgment motion as being directed to...more

3/23/2018  /  CLS Bank v Alice Corp , Patent Infringement , Patent Invalidity , Patent Litigation , Patent-Eligible Subject Matter , Patents

Whether Facts Matter in the Patent Eligibility Analysis: HP Files Petition for En Banc Rehearing

In Franz Kafka's novel The Trial, a man is accused of a non-specified crime by a shadowy governmental agency. The man repeatedly attempts to understand the nature of his alleged wrongdoing and his accusers. Ultimately, he...more

3/21/2018  /  Patent Invalidity , Patent Litigation , Patent-Eligible Subject Matter , Patents , USPTO

Aatrix Software, Inc. v. Green Shades Software, Inc. (Fed. Cir. 2018)

Aatrix brought an infringement action against Green Shades in the Middle District of Florida, alleging infringement of U.S. Patent Nos. 7,171,615 and 8,984,393. Green Shades filed a 12(b)(6) motion to dismiss on the grounds...more

2/19/2018  /  Patent Infringement , Patent Litigation , Patent-Eligible Subject Matter , Patents

Berkheimer v. HP Inc. (Fed. Cir. 2018)

This first five or so weeks of 2018 have been busy for Federal Circuit 35 U.S.C. § 101 jurisprudence. At last count, four substantive decisions have come down so far (including this one, but not including Rule 36 judgments...more

2/9/2018  /  Patent Infringement , Patent Litigation , Patent-Eligible Subject Matter , Patents , USPTO

Move, Inc. v. Real Estate Alliance Ltd. (Fed. Cir. 2018)

One of the more frustrating aspects of the current judicial patent eligibility framework is the propensity for courts, even the Federal Circuit, to carry out the two-part test from Alice Corp. v. CLS Bank Int'l in a...more

2/5/2018  /  CLS Bank v Alice Corp , Patent Infringement , Patent Litigation , Patent-Eligible Subject Matter , Patents

Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc. (Fed. Cir. 2018)

As patent-eligibility stands in 2018, it can be difficult to determine whether a graphical user interface (GUI) with an innovative layout and/or functionality meets the requirements of 35 U.S.C. § 101. On one hand, a GUI is...more

1/26/2018  /  LG Electronics , Patent Infringement , Patent Litigation , Patent-Eligible Subject Matter , Patents

Wordlogic Corp. v. Fleksy, Inc. (N.D. Ill. 2017)

Wordlogic brought an action against Fleksy in the Northern District of Illinois, alleging infringement of U.S. Patent Nos. 7,681,124 and 8,552,984. Flesky moved to dismiss the case under Rule 12(b)(6), on the grounds that...more

1/15/2018  /  Patent Infringement , Patent Litigation , Patent-Eligible Subject Matter , Patents

Finjan, Inc. v. Blue Coat Systems, Inc. (Fed. Cir. 2018)

The year's first substantive patent-eligibility decision from the Federal Circuit is a rare victory for the patentee. It is also further evidence that the outcome of an eligibility analysis may be more dependent upon how the...more

1/12/2018  /  Patent Litigation , Patent Validity , Patent-Eligible Subject Matter , Patents

Mastermine Software, Inc. v. Microsoft Corp. (Fed. Cir. 2017)

Mastermine brought a patent infringement action against Microsoft in the District of Minnesota. At issue were four claims of U.S. Patent No. 7,945,850 and three claims of U.S. Patent No. 8,429,518. After claim construction...more

11/21/2017  /  Claim Construction , Microsoft , Patent Infringement , Patent Invalidity , Patents

Intellectual Ventures I LLC v. Erie Indemnity Co. (Fed. Cir. 2017)

Intellectual Ventures I (IV) brought an action against Erie Indemnity Company in the Western District of Pennsylvania, alleging infringement of U.S. Patent No. 7,757,298. Erie filed a motion to dismiss under Rule 12(b)(6),...more

11/15/2017  /  CLS Bank v Alice Corp , Patent Infringement , Patent Litigation , Patent-Eligible Subject Matter , Patents

Two-Way Media Ltd. v. Comcast Cable Communications, LLC (Fed. Cir. 2017)

Two-Way Media brought an action against Comcast in the District of Delaware, claiming infringement of U.S. Patent Nos. 5,778,187, 5,983,005, 6,434,622, and 7,266,686. The District Court dismissed the case on the pleadings,...more

11/6/2017  /  CLS Bank v Alice Corp , Comcast , Patent Infringement , Patent Litigation , Patent-Eligible Subject Matter , Patent-in-Suit , Patents

Smart Systems Innovations, LLC v. Chicago Transit Authority (Fed. Cir. 2017)

Three years ago, the Supreme Court's Alice Corp. v. CLS Bank Int'l case set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under 35 U.S.C. § 101. One must first decide...more

10/24/2017  /  Abstract Ideas , CLS Bank v Alice Corp , Patent Litigation , Patent-Eligible Subject Matter , Patents

Visual Memory LLC v. NVIDIA Corp. (Fed. Cir. 2017)

When considering the patent-eligibility of claims, size usually matters. Claims that are longer and recite more detailed inventions tend to be more likely to survive 35 U.S.C. § 101 challenges than those that are shorter and...more

8/16/2017  /  Abstract Ideas , Nvidia , Patent Litigation , Patent-Eligible Subject Matter , Patents , Prior Art
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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

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Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

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How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
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You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
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  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

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  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
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Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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