Federal Circuit Oral Argument Summaries – September 2007

These are VERY ROUGH summaries of the cases argued to the Federal Circuit in September 2007.  I listen to the arguments in my car – often when I am distracted. So use these only for issue spotting, and listen to the MP3 yourself (and get copies of the briefs) if you want a 100% accurate story.

2007-1108 MAURICE MITCHELL INNOV V INTEL CORP (Rader Moore Yeakel) 09-04-07 (2 of 5 stars)

Another case where the prosecutor messed things up by using “means” limitations without thinking.  The relevant terms were “switch means,” and “means for causing….”  The issue on the “switch means” limitation was whether it was subject to 112/6 and then if so, what it corresponding structure (if any) was.  The issue on the second limitation was a failure to link the three functions in the limitation to any structure in the specification.  The appellant argues that the level of skill in the art should be high, and such a smart person could figure it out (Cf. Overhead Door.).  [Whenever someone’s main argument relates to what “one of ordinary skill in the art” would understand, with no connection to any evidence, there is a problem.]

2007-1093 PHARMA RESOURCES V ROXANE LABS (Michel Moore Cote) 09-05-07 (2 of 5 stars)

The patent covers a steroid for treating AIDS that is provided with a surfactant and is “stable.”  The district court agreed with the patentee that the term “stable” did not require stability for a particular period, but then apparently granted summary judgment of nonenablement because the specification said very little about the enormous number of surfactants that could/would be used.

2007-1133 DIGEO INC V AUDIBLE INC (Michel Moore Cote) 09-05-07 (3 of 5 stars)

This is a section 285 exceptional case appeal.  Audible won as a defendant and then sought additional discovery to show that Digeo did not conduct a competent pre-suit investigation.  The district court denied the discovery and relied on a declaration from Digeo.  I think the Audible attorney had a very good, relaxed, conversational style that more people should try to emulate.

      

2006-1633 SINORGCHEM V ITC (Newman Dyk Yeakel) 09-05-07  (3 of 5 stars)

This is a chemical case dealing with nitrobenzene, where the claims require that a certain item interfere with a reaction.  The issue is whether the ITC erred in adopting an express definition in the patent, but not including an “e.g.” clause that was in the definition.  The ITC reasoned that the example conflicted with a particular embodiment in the patent.  The definition, including the “e.g.” clauses, was even in quotes.  So the issue is whether, and when, plainly stated lexicography can be trumped. 

2006-1641 BIOVAIL LABS V ANCHEN PHARMA (Newman Dyk Yeakel) 09-05-07 (2 of 5 stars)

This appeal is from a summary judgment of noninfringement.  The claims require that a tablet be “free of stabilizer,” and the question seems to be whether the presence of something (HCL) that is nominally a stabilizer, but in an amount too small to stabilize, is “free of stabilizer.”  There was lots of discussion regarding whether this was a legal claim construction issue or, instead, a factual issue.  The discussion was also interesting because the court was looking at an ANDA description, and not an actual product.

2007-1097 ELBEX VIDEO V SENSORMATIC ELECTRON (Dyk Moore Cote) 09-06-07 (1 of 5 stars)

The panel was not thrilled with this case – noting that the parties’ briefs were like “ships that pass in the night” and questioning the appellant about characterizations of the accused system.  The patent relates to a security system that associates a break-in sensor with a camera, and allows an operator to control a particular camera (and not other cameras in the system) by sending commands using an address from the most recent sensor to trigger an alarm.  The district court granted summary judgment, and the issue seems to be a failure of proof, i.e., whether the appellant established that actual control signals are sent to the accused cameras.  There is a separate issue about whether an alleged error in the patent should be recognized and forgiven.

2006-1275 RESEARCH CORPORATION V MICROSOFT (Newman Friedman Rader) 09-06-07 (3 of 5 stars)

The district court found inequitable conduct based on failure to disclose certain test results to the examiner.  The panel seems to think the results did not really relate to the claimed invention, and tht they showed that a certain approach was not as good as other approaches, but not that the certain approach (which apparently was tied to the patent) was inferior   The panel questioned whether it had the power to reassign a case on remand (Judge Real had already found the inventors to not be credible).  The appellant also asserts error in a grant of summary judgment of noninfringement.

2007-1069 IN RE BENZER (Newman Friedman Rader) 09-06-07 (1 of 5 stars)

The invention relates to some sort of “input and output pad” (or something like that), and although the prior art labels its pad only as an “input” pad, it also shows current going to and coming from the pad – so the Board concluded that the claims were anticipated.  There was some discussion, which I did not understand, regarding the distinction between an anticipation rejection and a rejection because the claims as drafted are too broad (I thought they were the same thing).  Also, the appellant argued that the Solicitor had made a new argument in its brief, and that the appellant was prejudiced by not being able to introduce evidence to counter the argument.

2007-1154 INTL FLORA V DESERT WHALE (Rader Clevenger Dyk) 09-07-07 (2 of 5 stars)

This is a res judicata case, where the prior decision found a lack of standing in an TM opposition, and the current case involves a TM cancellation proceeding.  Judge Dyk was skeptical because the allegations for standing were the same both times – he also did not think a particular case supported the appellant.  Judge Clevenger also has a great colloquy with the appellant – classic style.

2007-1162 SYSTEMS DIVISION V TEKNEK (Michel Newman Moore) 09-07-07 (3 of 5 stars)

This case seems to have a huge back story.  APPARENTLY, there was prior litigation on patents, the defendant lost, and the principals of the defendant moved money out of the defendant while the suit was pending (and perhaps after the case was clearly going badly).  The patentees then brought a separate suit in California to get the money from the principals (who apparently are from Scottland).  The principals-appellants assert that there was no personal jurisdiction because the only harm in California was harm to he patentee, and all specifi personal jurisdiction cases have required harm to others in the forum (distinction w/o a difference?).  The panel wondered why fraudulent transfers were not affronts to the court and to the people of California.  The appellants also argued for forum non convience, but the panel questioned whether the issue was really just forum less convenient.

2006-1602 HONEYWELL INTL V HAMILTON SUNDSTRAN (Newman Rader Dyk) 09-07-07 (2 of 5 stars)

This is a Festo case.  The accused equivalent appeared to involve using the position of guide vanes on a jet engine to determine where in its operation the engine is, and then to control the engine with respect to surge control.  HS argued that the equivalent was foreseeable because people already knew that inlet vane position affected engine operation; Honeywell argued instead that the use of inlet vanes for control was not known.  Apart from the “foreseeability” issue, there was also a tangentiality issue, but I forget what it is because I listened to this one long ago.  (Hey, you aren’t paying for this.)

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