California Patent Attorney® Blog

Apple Unable to Secure Permanent Injunction on Samsung Devices

January 3, 2013,

apple-store.jpgCalifornia - A California federal judge rejected Apple's request for a United States sales ban on a number of smartphones made by Samsung Electronics Co Ltd. that were found to infringe Apple's patents and trade dress.

Just before the holidays U.S. District Judge Lucy Koh said Apple was unable to establish that the patented features in question are features that drive sales of the iPhone, thus Apple was unable to prove the company would suffer irreparable harm because of Samsung's sale of the infringing products.

Apple requested the injunction, which would have removed 26 of Samsung's current and future products from store shelves during the heart of the holiday season, after a California jury ruled in August that Samsung had infringed six utility and design patents which Apple owns.

Apple wanted the injunction in order to force Samsung to overhaul its product lines and to give Apple a piece of the popular Galaxy S II's sales, which would have made the injunction more valuable to Apple than the $1.05 billion it was awarded by the San Francisco jury.

Apple argued that the patents Samsung is infringing cover features of the iPhone design, including its black color, metal edges, reinforced glass and glossiness, which it argued are important to consumers when purchasing a smartphone. However, Judge Koh said the entire design of the phone, not the isolated characteristics Apple pointed out, is what is protected by its patent.

Judge Koh also said it is unclear how much a consumer considers design when making a smartphone purchase. Even if it was clear that design played a large part in a consumer's decision-making, Apple did not provide evidence that the specific design features Samsung was found to have infringed actually influence a consumer's decision to purchase a specific smartphone.

"Apple makes no attempt to prove that any more specific element of the iPhone's design, let alone one covered by one of Apple's design patents, actually drives consumer demand," Judge Koh said.

In addition to denying Apple's bid for a permanent injunction, Judge Koh also denied Samsung's request for a new trial.

Samsung claimed that juror Velvin Hogan withheld information during the voir dire process regarding his involvement in litigation with Seagate Technology PLC, a company Samsung recently invested in. Judge Koh dismissed the request saying Samsung waived its arguments during the voir dire process.

Both Apple and Samsung Argue That $1.05 Billion Patent Infringement Verdict is Unfair

December 11, 2012,

ipad-iphone.jpgCalifornia - After a $1.05 billion verdict was found in favor of Apple in August, both Samsung and Apple are back in court arguing that the ruling is unfair.

The arguments regarding several post-trial motions filed since the August verdict will be heard by U.S. District Judge Lucy Koh in the Northern District Court in San Francisco.
Samsung claims that the $1.05 billion verdict goes too far and is asking for a reduction in the verdict or for the verdict to be overturned all together. On the other hand, Apple wants $535 million more in enhanced damages, based on the jury's finding that Samsung willfully infringed Apple's patents.

Samsung claims that Apple has not shown it suffered any damages the jury did not account for and so it is not entitled to enhanced damages.

Beyond that argument, Samsung claims that a reasonable jury would not have found that it infringed Apple's patents and that the jury's findings and damage calculations are faulty and inconsistent, thus Apple is not entitled to the $1.05 billion in damages the jury awarded.

Samsung also claims that the jury foreman, Velvin Hogan, was biased against the company. Samsung bases this claim on the fact that Hogan sued Seagate Technology in 1993, a company Samsung recently invested in. Based on this alleged bias, Samsung is asking for a new trial due to jury misconduct.

Samsung also claims that the judge's constraints on jury time, exhibits, and witnesses prevented it from making a full and fair case against Apple's claims. Apple counters that Samsung's jury misconduct claim is based on speculation and it has not given sufficient cause to require a new trial.

In addition to greater monetary damages, Apple is asking for a permanent injunction on Samsung's allegedly infringing smartphones and tablets. It wants the injunction to ban all technology that is "not more than colorably different," which could ban Samsung products that had nothing to do with the trial.

Samsung claims that the injunction Apple wants is vague and overbroad, which could hinder competition and limit consumer choice. Samsung also claims that Apple has not shown it will suffer irreparable harm or that monetary remedies are not sufficient.
Samsung's argument also pointed out Apple's recent settlement with HTC Corp., which concerned some of the same patents at issue in the Samsung case, as confirmation that Apple's competitors can sell products containing Apple's patents through licensing without damaging the company.

Regardless of Koh's ruling on the case and the decisions on appeals that are sure to follow, Apple and Samsung's legal battles are far from over. The companies will be back in Judge Koh's courtroom in 2014 battling over patent infringement in newer smartphones and tablets.

Apple v. HTC Patent Infringement Battle Finally Over

November 12, 2012,

cell phone closeup-offset.jpgCalifornia - After a daunting thirty-two month patent infringement lawsuit between Apple Inc. and HTC, the two tech giants announced a confidential 10-year licensing agreement that will cover both current and future patents held by both companies. The companies also dismissed all pending lawsuits against each other.

The patent infringement dispute arose in March 2010 when Apple filed a complaint against HTC for infringing ten patents related to user interface design. The International Trade Commission determined that HTC was indeed in violation of one patent, which caused a delay in launch dates of the HTC One X and other products due to an import ban.

HTC is not the only Android hardware manufacturer that Apple is embroiled with in messy patent battles. The late CEO Steve Jobs had declared a "thermonuclear war" against the Android operating system, which he called a "stolen product." The company has gone toe to toe with both Samsung and Motorola over claims of patent infringement involving hardware design, core operating system functionalities, and elements of user interface.

The outcome of these current patent battles could affect the design and functionality of smartphones as well as their cost and availability when licensing fees and ITC bans take place.

"HTC is pleased to have resolved its dispute with Apple, so HTC can focus on innovation instead of litigation," said Peter Chou, Chief Executive Officer of the Taiwan-based HTC.

Tim Cook, who replaced Jobs as the CEO of Apple, made a similar statement indicating that the company intends on staying "laser focused on product innovation." Unlike Jobs' war mantra of dragging these claims out in court for years and years, Cook has taken a less hostile approach. He appears to be more willing to work out deals with the Android makers to avoid the courts. The company struck a deal with handset-maker Nokia, which included money from Apple.

Regardless of Cook's diplomatic approach to the patent wars, Apple failed to strike a settlement agreement with Samsung earlier this year. Apple won the case in court with the jury awarding it $1 billion in damages, a decision which Samsung says it will appeal.

Lenovo, B&N, Other Tablet Makers Sued Over Double-Click Patent

October 29, 2012,

tablet_pc.jpgCalifornia - Lenovo Inc., Barnes & Noble Inc., Amazon.com Inc. and other makers of tablet products were hit with new infringement allegations on Friday at the hands of Hopewell Culture & Design LLC, which accuses the tablet makers of misappropriating its patented technology for double-clicking an interactive display.

Hopewell filed a battery of new infringement lawsuits in Texas federal court against Lenovo, B&N, Amazon, Coby Electronics Corp., Viewsonic Corp. and Vizio Inc. all asserting violations of its rights in U.S. Patent Number 7,171,625.

The '625 patent, entitled "Double-Clicking a Point-and-Click Interface Apparatus to Enable a New Interaction with Content Represented by an Active Visual Display Element," was issued in January 2007. The claimed invention can be used to enable interaction with any type of content, such as a still image, video, audio, text or a graphical display, and the interactions can include any manner of making use of data representing the content, according to the patent description.

The tablet makers are making and selling infringing mobile devices including B&N's Nook, Amazon's Kindle, Lenovo's ThinkPad andIdea Pad, Coby's Kyros, Viewsonic's ViewBook and Viewpad and Vizio's VTAB1008, according to the complaints.

The accused devices all allegedly infringe the patent by having software allowing a user to double click or double tap a visual element representing interactive content and interact with a second version of the interactive content.

Hopewell is seeking a declaration of infringement, damages and injunctions with respect to all of the alleged infringers.

The '625 patent claims a broad range of double-clicking capabilities and functionality, covering computers, televisions and any other devices that make use of a point-and-click apparatus for user interaction.

"Double-clicking a point-and-click computer user interface apparatus can also be used to effect user input to a computer program," the patent description says. "However, double-clicking has not been used to effect user input to a Web browser that uniquely corresponds to the double-click input."

"Once users have become acclimated to the use of a double-click input to produce or enable functionality in accordance with the invention, the invention can provide an intuitive and easy way to access such functionality," the description says.

ITC Rules Samsung Infringes Four Apple Smartphone, Tablet Patents

October 25, 2012,

iphone-ipad.jpgCalifornia - An U.S. International Trade Commission administrative law judge made an initial finding on Wednesday that Samsung Electronics Co. infringed four Apple inc. patents for smartphone and tablet technology.

Though the ALJ did not find in favor of Apple on all of the patents it asserted, such as a component of the iPhone's design, he did find Samsung infringed patents relating to headphone connectors and touch screen technology.

The ITC's finding could pave the way for exclusion and cease and desist orders blocking imports of some Samsung devices into the U.S.

The ruling is the latest blow for Samsung, which recently became the target of a U.S. Department of Justice investigation into potential antitrust violations connected to its licensing of standard-essential patents, according to a filing Apple made in another case before the ITC on Monday.

Earlier this year a California federal jury handed down a $1 billion verdict against Samsung on Apple's smartphone and tablet patent infringement claims, which Samsung has been fighting tooth and nail, alleging juror misconduct in post-trial motions.

Apple has suffered setbacks of its own in the past week with regard to its patent portfolio. Also on Wednesday, a Dutch court reaffirmed its previous finding that Samsung has not infringed an Apple touch event model patent, in line with recent court decisions in the U.K. and Germany.

On Monday, meanwhile, Samsung revealed in a filing with the California federal court that the U.S. Patent and Trademark office has reexamined and invalidated a key Apple patent at the heart of the trial, covering its iPhone and iPad "rubber banding" display bounce-back feature.

The rubber banding patent, entitled "List scrolling and document translation, scaling and rotation on a touch-screen display," covers a method of detecting movement on a touch screen and rolling the display forward or backward when the end of the available display is reached.

The European Patent Office is already pursuing its own review of the European equivalent of the U.S. rubber banding patent, at the request of Samsung and others.

PTO Shoots Down Apple Bounce-Back Patent At Heart Of Samsung Case

October 23, 2012,

iphone-apps.jpg California - The U.S. Patent and Trademark Office has preliminarily invalidated Apple Inc.'s patent for its iPhone "rubber banding" feature, a key factor in the $1 billion patent infringement jury verdict against Samsung Electronics Co. earlier this year.

The PTO declared all 20 claims of U.S. Patent No, 7,469,381 to be invalid, according to a copy of the reexamination decision Samsung gave to the Northern District of California court overseeing the case late on Monday.

The office relied primarily on two pieces of prior art, including a previous Apple patent for "continuous scrolling list with acceleration."

The rubber banding patent, entitled "List scrolling and document translation, scaling and rotation on a touch-screen display," covers a method of detecting movement on a touch screen and rolling the display forward or backward when the end of the available display is reached.

The European Patent Office is already pursuing its own review of the European equivalent of the U.S. rubber banding patent, at the request of Samsung and others. Apple won a sales injunction against Google Inc.'s Motorola Mobility LLC in a German court earlier this year on the basis of the European patent.

The PTO's decision is not final or binding, but could provide the impetus for Judge Lucy Koh in the Northern District of California to at least partially grant Samsung's motion to set aside the jury verdict.

Samsung filed motions for judgment as a matter of law and a new trial earlier in October, and the companies sparred last week over whether such relief was warranted due to Samsung's allegations of juror misconduct.

Samsung has accused jury foreman Velvin Hogan of lying about his past involvement in litigation and past ties to Samsung's law firm, saying he failed to answer truthfully during the voir dire portion of jury selection.

"Samsung fails to meet the high bar to obtain judgment or new trial on any claim," Apple said Friday. "Samsung also falls far short of showing the 'grossly excessive or monstrous' damages 'clearly not supported by the evidence, or based only on speculation or guesswork' required to disturb the jury's award."

TI Wins Patent For Method Of Keeping Tabs On Solar Panel Performance

October 19, 2012,

solar panel.jpg California - The U.S. Patent and Trademark Office issued Texas Instruments Inc. a patent on Tuesday for a way of monitoring and measuring the performance of an array of solar energy cells.

U.S. Patent Number 8,289,183, titled "System and method for solar panel array analysis," covers a system and method for monitoring performance of one or more solar panels in a photovoltaic array, using a number of sensors configured to measure an output of individual solar panels.

In the patented invention, a telemetry gateway collects data from the sensors and transmits the collected data to a monitoring system. The monitoring system includes an event signature recognizer, a trend analyzer and a symmetry analyzer.

The system detects events, trends and solar panel array asymmetry. It can also display realtime graphs, proposed corrective actions and alerts via a user interface.

Solar panels use a large number of individual photovoltaic cells to convert sunlight into electrical energy. The majority of solar panels use wafer-based crystalline silicon cells or a thin-film cell based on cadmium telluride or silicon.

The PV cells are first coupled in series within a group on the panel, and a number of the groups are then coupled together in parallel. Similarly, a PV array, also referred to as solar array, is made of solar panels arranged in series and in parallel.

In a conventional solar array, all of the individual panels in the array must receive full sunlight for the array to work properly, according to the patent description. If a portion of the array is shaded or otherwise impaired, the entire array power output -- even from those sections still exposed to sunlight -- is lowered.

The electrical power generated by each solar panel is determined by the panel's voltage and current. In a solar array electrical connections are made in series to achieve a desired output string voltage or in parallel to provide a desired amount of string current source capability.

"Inevitably, efficiency reducing variations among panels exist in many solar arrays," the patent description says. "A significant amount of energy is left unrealized when these variations go undetected and uncorrected."

Inventor Andrew Foss of San Jose, Calif. filed the application for the patent on April 24, 2009.

Microsoft, Yahoo Must Face Paging Patent Claims, Federal Circuit Says

October 17, 2012,

pager.jpgCalifornia - The Federal Circuit on Wednesday let a number of domestic and foreign cell phone companies off the hook permanently for Technology Patents LLC's dismissed pager system patent infringement claims on appeal, but partially revived the company's case against Microsoft Inc., Yahoo! Inc. and other software companies.

The appeals court found that the Maryland district court properly granted summary judgment of noninfringement to the domestic carriers and that the judgment against the domestic carriers applies equally to the foreign carriers.

It affirmed the district court's grant of summary judgment of noninfringement to the software providers with respect to some of the patent claims, but vacated the summary judgment ruling with respect to a number of other claims and remanded them for further proceedings.

TPL sued over 100 domestic and foreign companies in November 2007 for infringing U.S. Patents Numbers 6,646,542 and RE39,870. The allegations concerning the '542 patent were subsequently withdrawn, so only the '870 patent was at issue on appeal.

The '870 patent covers a global paging system utilizing a land-based packet-switched digital data network like the Internet and a feature for permitting users to remotely designate countries in which they are currently or expect to be located.

The scores of defendants each fell into one of three groups: domestic cell carriers and handset companies, including AT&T, T-Mobile, Sprint, Motorola, and others; the software providers, including Microsoft, Yahoo, and Clickatell; and the foreign carriers, including T-Mobile, Vodaphone and many others

The district court dismissed the case against the foreign carriers for lack of personal jurisdiction, and it granted summary judgment of noninfringement in favor of the domestic carriers and the software providers, but on separate grounds.

The Federal Circuit upheld the district court's constructions of the terms "receiving user," "predetermined order" and "initiates paging operations in another country in a predetermined order," which TPL challenged on appeal.

The appeals court ordered the district court, on remand, to consider whether TPL has produced sufficient evidence to create a genuine dispute as to any material fact with respect to the software companies' alleged infringement of the patent claims at issue.

Based on TPL's theory of infringement and the ground on which the district court ruled in favor of the domestic carriers, though, the district court's determination that the domestic carriers do not infringe the '870 patent necessarily means that the foreign carriers also do not infringe, the Federal Circuit ruled.

ITC Says It Will Take Up VirnetX Patent Complaint V. Apple

October 16, 2012,

iphone.jpg California - The U.S. International Trade Commission announced Tuesday that it will pursue an investigation into whether Apple Inc. is importing electronic devices into the U.S. that infringe a VirnetX Inc. patent.

The ITC's action comes in response to a complaint VirnetX and Science Applications International Corp. filed in September alleging Apple is violating Section 337 of the Tariff Act of 1930 by importing devices with secure communications applications. The accused products include the latest iPhones, iPads, iPods, and Macintosh computers.

VirnetX has asked the ITC to institute an investigation into Apple's allegedly infringing imports and ultimately issue an exclusion order to bar importation of those Apple products. The company is also seeking a cease and desist order to stop further sales and other domestic commercial activities of infringing Apple products that have already been imported.

"The USITC has not yet made any decision on the merits of the case," the commission said.

After having a previous ITC complaint against Apple dismissed, VirnetX is now bringing the complaint jointly with SAIC, which sold VirnetX part of its patent portfolio in 2006. SAIC had to be included to remove a procedural standing issue that was identified as the reason for dismissal of VirnetX's previous complaint.

"We feel confident that our re-filing satisfies all previous ITC issues," VirnetX CEO and President Kendall Larsen said in a statement. "We now look forward to our case schedule and assignment of an Administrative Law Judge. We believe the merits of our complaint are strong and substantial."

VirnetX's U.S. Patent Number 8,051,181, which issued on November 1, 2011, is titled "Method for establishing secure communication link between computers of virtual private network."

Initially, a secure communication mode of communication is enabled at a first computer without a user entering any cryptographic information for establishing the secure communication mode of communication, according to the patent abstract. Then, a secure communication link is established between the first computer and a second computer over a computer network based on the enabled secure communication mode of communication.

Federal Circuit Overturns Samsung Sales Ban In Apple Patent Case

October 11, 2012,

samsung.jpgCalifornia - The Federal Circuit ruled on Thursday that a California federal judge abused her discretion in handing down an injunction barring Samsung Electronics Co. from selling its Galaxy Nexus smartphone in the U.S. in Apple Inc.'s epic iPhone and iPad infringement lawsuit.

Judge Lucy Koh issued the sales injunction in June, and the Federal Circuit previously granted Samsung's motion for a temporary stay of the injunction while it considered Samsung's appeal.

As the party seeking emergency relief, Apple is obligated to make a clear showing that it is at risk of irreparable harm, which entails showing a likelihood of substantial and immediate irreparable injury, according to the appeals court. A patent holder like Apple must also establish that the harm is sufficiently related to the infringement, it said.

Samsung argued on appeal that Judge Koh abused her discretion by finding that Apple will be irreparably harmed without the injunction and that Apple sufficiently established a nexus between the harm alleged and the infringing conduct.

Apple's evidence of a causal nexus, based primarily on the popularity of the iPhone 4S's Siri voice assistant and search feature, is limited, the Federal Circuit said. To the extent the district court endorsed Apple's articulation of the causal nexus test, it erred as a matter of law, it said.

To establish a sufficiently strong causal nexus, Apple had to show that consumers buy the Galaxy Nexus because it is equipped with the apparatus claimed in the patent -- not because it can search in general, and not even because it has a unified search feature, the Federal Circuit ruled.

"At best, the district court's findings indicate that some consumers who buy the iPhone 4S like Siri because, among other things, its search results are comprehensive," the court's opinion said. "That does not sufficiently suggest, however, that consumers would buy the Galaxy Nexus because of its improved comprehensiveness in search."

Apple's massive patent case against Samsung and Samsung's own counterclaims have drawn widespread public attention, in large part due to the $1 billion verdict a jury in the California court handed down in August against Samsung.

Apple Seeks To Patent Detachable Wireless Headphones

October 5, 2012,

headphones2.jpgCalifornia - A new patent application unveiled by the U.S. Patent and Trademark Office on Thursday shows Apple Inc. is hoping to obtain patent protection for a listening device for a media player that could instantly and seamlessly switch from being plugged in to operating wirelessly.

The patent application, titled "Detachable Wireless Listening Device" and filed in March 2011 by Jorge S. Fino, describes a media apparatus that can be used in conjunction with a host device to provide a user a pleasurable listening experience, especially during periods of physical activity.

In the described embodiments, the host device can take the form of a portable media player, and the media apparatus can include a listening device.

The media apparatus in one embodiment includes at least one listening device, a corded portion in communication with a host device arranged to provide an audio signal, and a detachable connector having a first part and a second part. The detachable connector would be arranged to couple the listening device at the first part to the corded portion at the second part.

When the listening device is attached to the corded portion by way of the connector, the listening device receives the audio signal from the host device by way of the corded portion. When the listening device is detached from the cord, a wireless signal that includes the audio signal is transmitted from the second part of the corded portion for reception at the first part of the listening device.

The listening device could contain a set of rechargeable batteries that would store energy when the cord is attached to the media player. When detached, stereo audio could potentially be provided by giving a unique wireless address to each of the left and right speakers in the listening device, according to the patent description.

Consumers are looking for improved techniques for listening to audio provided by a personal media player during physical activity, according to Apple.

"As simple and efficient as the cord may be in transmitting the audio signal, the cord is susceptible to becoming entangled while the end user is participating in physical activity," the patent description says.

"This is particularly nettlesome since the cord connected to the personal media player used while exercising or worn on the body requires frequent adjustment to avoid entanglement which can prove distracting or in some cases present a hazard to the end user," it says.

The patent could pave the way for upgrades to Apple's earbud products on the market, especially now that the company offers Bluetooth 4.0 functionality across all of its devices.

Motorola Calls Off ITC Apple iPad, iPhone Patent Infringement Action

October 2, 2012,

apple-logo-gray.jpgCalifornia - Motorola Mobility LLC said this week it will no longer pursue its Section 337 case in the U.S. International Trade Commission seeking to block Apple Inc.'s importation and sale of wireless electronics devices like iPods and iPhones that allegedly infringe the Google Inc. subsidiary's patents.

Motorola also filed a stipulation of dismissal in a related case pending in Delaware federal court. The decision to drop the cases comes just a few weeks after the ITC said it would take up Motorola's complaint and launched an investigation.

Motorola's complaint against Apple alleged violations of Section 337 of the Tariff Act of 1930 in the importation into the United States and sale of certain wireless communication devices, portable music and data processing devices, computers, and components that infringe Motorola's asserted patents. The company requested that the ITC issue an exclusion order and a cease and desist order.

The products at issue include the iPod Touch, iPhone 3GS, iPhone 4, iPhone 4S, iPad 2 and the new iPad, as well as the Mac Pro, iMac, Mac mini, MacBook Pro and MacBook Air. Allegedly infringing features include the iPhone's Siri voice assistant feature, location reminders, video players and email notifications.

The specific patents Motorola cites in the complaint include U.S. Patent Numbers 5,883,580, 5,922,047, 6,425,002, 6,983,370, 6,493,673, 7,007,064 and 7,383,983.
The '580 patent generally relates to messaging devices, the '047 patent relates to communication and control systems for multimedia, the '002 patent and '673 patent relate to communication devices, and the '370 patent relates to communications systems for messaging clients. The '064 patent relates to wireless communications systems providing content to wireless communication devices, while the '983 patent relates to managing content between devices.

"We would like to settle these patent matters, but Apple's unwillingness to work out a license leaves us little choice but to defend ourselves and our engineers' innovations," a Motorola representative said at the time the company filed its Section 337 complaint in August.

Another earlier-filed Section 337 case Motorola is asserting against Apple remains pending before the ITC.

Federal Circuit Breathes New Life Into Abbott Glucose Monitor Patents

September 29, 2012,

glucose.jpgCalifornia - The Federal Circuit on Friday resurrected two Abbott Diabetes Care Inc. patents for a diabetes-related glucose monitoring system, ruling that the U.S. Patent and Trademark Office's rejection of the patents was based on unreasonable claim constructions.

Abbott had appealed from ex parte reexamination proceedings in which the Board of Patent Appeals and Interferences rejected numerous claims of U.S. Patent Numbers 6,175,752 and 6,565,509.

"The board's construction of 'electrochemical sensor' and its modified construction of 'substantially fixed' are unreasonable and inconsistent with the specification," the Federal Circuit ruled.

The appeals court vacated the board's decisions as to the patentability of Abbott's independent claims at issue and remanded the case for the board to apply the correct claim constructions.

Both the '752 patent and the '509 patent share a common specification that describes methods and devices "for the in vivo monitoring of an analyte using an electrochemical sensor to provide information to a patient about the level of the analyte" in the bloodstream. In particular, the patent specification describes methods and devices for monitoring glucose levels for diabetics.

The specification describes the claimed "electrochemical sensor" at issue as "a device configured to detect the presence and/or measure the level of an analyte in a sample via electrochemical oxidation and reduction reactions on the sensor."
The PTO granted third-party requests for ex parte reexamination of Abbott's patents in March 2006, in relation to consolidated infringement litigation involving Abbott and DexCom Inc., which remains pending.

During reexamination, the examiner finally rejected all of the claims subject to the reexamination as being indefinite, anticipated, or obvious over several combinations of prior art references.

In reviewing the examiner's rejections, the board first had to determine the correct construction of "electrochemical sensor," namely, whether "the transcutaneous electrochemical sensor recited in the claims includes wires and cables," according to the Federal Circuit. The board ultimately concluded that the sensor did have to include wires and cables.

The board also construed the proper construction of the term "substantially fixed" to allow some movement of the sensor relative to the position of the sensor control unit.
Relying on those claim constructions, the board ruled that Abbott's claimed invention was not patentable. Abbott filed requests for rehearing, which the board denied, and from there appealed to the Federal Circuit.

Federal Circuit Rules "Death Care" Co. Can't Head Off Cremation Patent Claims

September 26, 2012,

courthouse.jpgCalifornia - The Federal Circuit on Tuesday shut the door on a patent infringement dispute between two companies over a means of cremating human remains without incinerating them, ruling that Matthews International Corp. could not obtain a declaratory judgment that it did not infringe Biosafe Engineering LLC's patents.

The district court correctly determined that Matthews' claims lacked "sufficient immediacy and reality" to support the exercise of declaratory judgment jurisdiction, the Federal Circuit ruled.

Matthews is a leader in the "death care" industry, according to the Federal Circuit. It manufactures cremation equipment, caskets and bronze memorials and sells them to funeral homes.

Matthews is currently marketing a product called Bio Cremation, which uses an alkaline hydrolysis process, rather than incineration, to cremate human remains. According to Matthews, the Bio Cremation equipment offers an "environmentally friendly" alternative to traditional flame-based cremation.

Resomation Ltd. is a Scottish company that manufactures and licenses equipment that employs an alkaline hydrolysis process to dispose of human remains. Resomation has granted Matthews an exclusive license to market and sell its alkaline hydrolysis equipment in the United States.

Biosafe, meanwhile, acquired several patents related to the application of alkaline hydrolysis to the disposal of various types of waste, such as medical waste, infectious agents, and hazardous materials.

In February 2011, Matthews sued Biosafe seeking a declaratory judgment of non-infringement, invalidity, and unenforceability of the patents. By the time it filed an amended complaint in May 2011, Matthews had sold three Bio Cremation units, but none of these units had been installed in customers' facilities.
Matthews alleged that Biosafe had wrongly accused it of patent infringement, and had made false accusations about Matthews to Matthews' customers, potential customers, and employees.

Biosafe also "launched a bad faith whispering campaign in the funeral home marketplace, by making accusations and veiled threats to potential customers" that Matthews' Bio Cremation equipment infringed Biosafe's patents, according to Matthews.
The district court granted Biosafe's motion to dismiss in September 2011, finding that Matthews had not made "meaningful preparation" to conduct potentially infringing activity.

Because the potentially infringing features of the Bio Cremation system were "fluid and indeterminate," Matthews' claim lacked the necessary reality to satisfy the constitutional requirements for declaratory judgment jurisdiction, the district court ruled.

The Federal Circuit agreed, ruling that Matthews' dispute with Biosafe lacks immediacy because there is no evidence as to when, if ever, the Bio Cremation equipment will be used in a manner that could potentially infringe the Biosafe patents.

"A party may not obtain a declaratory judgment merely because it would like an advisory opinion on whether it would be liable for patent infringement if it were to initiate some merely contemplated activity," the appeals court said.

Apple Wants Extra $707M On Top Of $1B Samsung Patent Verdict

September 24, 2012,

iphone-ipad.jpgCalifornia -- Apple Inc. asked a California federal judge Friday to grant it an additional $707 million in enhanced and supplemental damages and interest in the iPad and iPhone patent infringement case that recently yielded a $1 billion verdict against Samsung Electronics Co.

Samsung infringed Apple's patents willfully, tried to conceal its misconduct and did not act in good faith, Apple told Judge Lucy Koh of the Northern District of California in a motion for a permanent injunction and damage enhancements that requested $535 million in enhanced damages under the Lanham Act and Patent Act.
Apple also separately asked for another $172 million in a motion for judgment as a matter of law and amended judgment Friday.

"Samsung made a calculated business decision to copy the industrial designs, graphical user interfaces, and touchscreen navigation technology of the iPhone and iPad," Apple's motion for enhanced damages said. "Samsung has reaped extraordinary rewards from its wrongful sale of iPhone and iPad clones by taking market share, revenues, and profits from Apple."

In the first six months of 2012 alone, Samsung received over $1.5 billion in revenue from the 26 products that the jury found infringed or diluted Apple's patents and trade dresses, according to Apple.

"Samsung's misuse of Apple's intellectual property has caused severe, long-term and irreparable harm to Apple in a market where customer loyalty is critical and at a time when many consumers are making their first smartphone purchases," the motion says.
Samsung has engaged in its wrongful conduct willfully, ignoring repeated warnings from Apple, the California federal court and the Federal Circuit regarding the validity and infringement of Apple's patents and the dilution of its trade dresses, as well as from the press and various carriers that pointed out Samsung's obvious copying, Apple says.
"Samsung bet that the benefits of using Apple's intellectual property would far outweigh any damage award that might result from litigation," the motion says "Even the substantial damages awarded by the jury are dwarfed by the profits Samsung has reaped and will continue to reap from its unlawful conduct. This court can and should take further action."