Flexuspine, Inc. v. Gobus Medical, Inc.

Globus Medical, Inc., appeals the district court’s decision denying its Rule 59(e) motion and denying as moot its Rule 50(b) motion. Flexuspine, Inc., cross-appeals from the district court’s grant of summary judgment of noninfringement of its U.S. Patent No. 8,123,810 (“’810 patent”). We affirm the district court’s decisions (1) denying Globus’s Rule 59(e) motion, (2) denying as moot its Rule 50(b) motion, and (3) granting summary judgment of noninfringement.

Download Flexuspine Inc. v. Gobus Medical Inc.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Exmark Manufacturing Co., Inc. v. Briggs & Stratton Power Group, LLC

Exmark Manufacturing Company filed suit against Briggs & Stratton Power Products Group, LLC in the United States District Court for the District of Nebraska, alleging infringement of, inter alia, claim 1 of U.S. Patent No. 5,987,863. The district court entered summary judgment that claim 1 was not invalid because the claim survived multiple reexaminations involving the same prior art. The district court also denied summary judgment of indefiniteness with respect to claim 1.1 The case proceeded to a jury trial, where the jury found that Briggs willfully infringed Exmark’s patent. The jury awarded $24,280,330 in compensatory damages, which the district court doubled as enhanced damages for Briggs’ willful infringement.

Briggs appeals several of the district court’s orders, including the district court’s: (1) summary judgment that claim 1 is not anticipated or obvious, (2) denial of summary judgment that claim 1 is indefinite, (3) denial of a new trial on damages, (4) evidentiary rulings related to damages, (5) denial of a new trial on willfulness, and (6) denial of Briggs’ laches defense.

We conclude the district court erred by basing its summary judgment of no invalidity solely on the fact that claim 1 survived multiple reexaminations. Accordingly, we vacate the district court’s summary judgment of no invalidity. We remand to the district court for it to make an independent determination of whether genuine issues of material fact preclude summary judgment that claim is not anticipated or obvious in view of the prior art. We also hold that the district court erred in denying a new trial on damages because Exmark’s damages expert failed to provide an adequate explanation as to how she arrived at a 5% royalty rate for the patented feature relative to other conventional features of the accused products. We also conclude that the district court abused its discretion by limiting the evidence relevant to damages to prior art that had been commercialized. Likewise, we conclude that the district court abused its discretion by excluding from the willfulness trial evidence relating to patent validity based on its determination that Briggs’ invalidity defenses were objectively unreasonable. The district court’s evidentiary ruling does not comport with the Supreme Court’s recent decision in Halo Electronics, Inc. v. Pulse Electronics, Inc., 136 S. Ct. 1923 (2016), mandating that willfulness is to be determined by the jury regardless of whether Briggs’ defenses were objectively reasonable. Accordingly, we vacate the jury’s finding of willfulness, vacate the jury’s damages award, vacate the district court’s enhanced damages award, and remand for proceedings consistent with this precedent. We also affirm the district court’s denial of summary judgment that claim 1 is indefinite, and affirm its denial of Briggs’ laches defense.

Download Exmark Manufacturing Co. Inc. v. Briggs & Stratton Power Group LLC

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Advanced Video Technologies, LLC v. HTC Corp.

Advanced Video Technologies LLC appeals an order from the United States District Court for the Southern District of New York that dismissed its complaints for lack of standing. The district court based its decision on the ground that a co-owner of the patent was not a party to the actions, and the co-owner’s ownership interests in the patent were not transferred to Advanced Video. We affirm.

Download Advanced Video Technologies LLC v. HTC Corp.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Leapers, Inc. v. SMTS, LLC

Plaintiff Leapers, Inc. appeals the district court’s entry of summary judgment for Defendant Sun Optics USA in Plaintiff’s case alleging trade dress infringement under the Lanham Act, 15 U.S.C. § 1051, et seq. For the reasons set forth below, we VACATE the district court’s judgment and REMAND the case for further proceedings.

Download Leapers Inc. v. SMTS LLC

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Finjan, Inc. v. Blue Coat Systems, Inc.

A jury found Blue Coat Systems, Inc. (“Blue Coat”) liable for infringement of four patents owned by Finjan, Inc. (“Finjan”) and awarded approximately $39.5 million in reasonable royalty damages. After trial, the district court concluded that the ’844 patent was patent-eligible under 35 U.S.C. § 101 and denied Blue Coat’s post-trial motions for judgment as a matter of law (“JMOL”) and a new trial. Blue Coat appeals.

We find no error in the district court’s subject matter eligibility determination as to the ’844 patent and agree that substantial evidence supports the jury’s finding of infringement of the ’844 and ’731 patents. However, we conclude that Blue Coat was entitled to JMOL of noninfringement for the ’968 patent because the accused products do not perform the claimed “policy index” limitation. On appeal, Blue Coat does not challenge the verdict of infringement for the ’633 patent.

With respect to damages, we affirm the award with respect to the ’731 and ’633 patents. We vacate the damages award for the ’968 patent, as there was no infringement. With respect to the ’844 patent, we agree with Blue Coat that Finjan failed to apportion damages to the infringing functionality and that the $8-per-user royalty rate was unsupported by substantial evidence.

We therefore affirm-in-part, reverse-in-part, and remand to the district court for further consideration of the damages issue as to the ’844 patent.

Download Finjan Inc. v. Blue Coat Systems Inc.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Commodores Entertainment Corp. v. McClary

In this common-law trademark case, Thomas McClary appeals from an order granting judgment as a matter of law to Commodores Entertainment Corporation (CEC) and converting a preliminary injunction into a permanent one against McClary and his corporation, Fifth Avenue Entertainment, LLC. The dispute concerned ownership of the mark “The Commodores,” the name of a famous Grammy Award–winning rhythm and blues, funk, and soul music band. McClary was an original member of The Commodores, but, by his own admission, he “split from the band” in 1984 to strike out on his own in the world of music. He later formed a musical group that performed as “The 2014 Commodores” and “The Commodores Featuring Thomas McClary.” When CEC -- a corporation run by two original Commodores who remain active with the group -- found out about McClary’s group, it filed this lawsuit against McClary and Fifth Avenue claiming trademark infringement, trademark dilution, passing off, false advertising, and unfair competition.

The district court granted CEC a preliminary injunction and enjoined McClary from using the marks; a panel of this Court affirmed. Then, after a twoweek trial, the district court granted judgment as a matter of law to CEC and converted the preliminary injunction into a permanent one. McClary and Fifth Avenue appeal that order, as well as the district court’s oral ruling denying their motion to dismiss for failure to join an indispensable party.

After careful review, we hold we lack jurisdiction to review the denial of the motion to dismiss and that the district court did not abuse its discretion in excluding expert testimony from an attorney who proffered only legal conclusions. We also conclude that when McClary left the band, he left behind his common-law rights to the marks. Those rights remained with CEC. Moreover, we conclude that the scope of the injunction was not impermissibly broad, that McClary’s arguments about the validity of the federal registration of the marks are irrelevant to this determination, and that McClary did not establish any affirmative defenses. Accordingly, we affirm.

Download Commodores Entertainment Corp. v. McClary

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Oracle USA v. Rimini Street

The panel affirmed in part, reversed in part, and vacated in part the district court’s judgment after a jury trial in favor of Oracle USA, Inc., on its copyright infringement and California and Nevada state law claims against Rimini Street, Inc., a provider of third-party support for Oracle’s enterprise software, and Seth Ravin, Rimini’s CEO.

Oracle licenses its software and also sells its licensees maintenance contracts. The maintenance work includes software updates. In order to compete effectively with Oracle’s direct maintenance services, Rimini needed to provide software updates to its customers. With Oracle’s knowledge, Rimini copied Oracle’s copyrighted software in order to provide the updates. Rimini obtained software from Oracle’s website with automated downloading tools in direct contravention of the terms of the website.

The panel affirmed the district court’s partial summary judgment and partial judgment after trial on Oracle’s claims that Rimini infringed its copyright by copying under the license of one customer for work performed for other existing customers or for unknown or future customers, rather than restricting such copying to work for that particular customer. The panel concluded that Rimini’s activities were not permissible under the terms of the licenses Oracle granted to its customers. The panel rejected Rimini’s argument that holding it accountable for its alleged conduct would condone misuse of Oracle’s copyright.

The panel reversed the district court’s judgment after trial with respect to Oracle’s claims under the California Comprehensive Data Access and Fraud Act, the Nevada Computer Crimes Law, and California’s Unfair Competition Law. The panel held that taking data from a website, using a method prohibited by the applicable terms of use, when the taking itself generally is permitted, does not violate the CDAFA or the NCCL. Accordingly, Rimini did not violate these computer abuse statutes by using automated tools to take data in direct contravention of Oracle’s terms of use. Because the district court granted judgment in favor of Oracle on Oracle’s Unfair Competition Law claim based on its finding that Rimini violated the CDAFA, the panel reversed the district court’s determination that Rimini violated California’s Unfair Competition Law.

The panel reduced the district court’s award of damages by the amount based on Rimini’s alleged violation of the CDAFA and NCCL. The panel affirmed the district court’s award of prejudgment interest on the copyright claims. The panel reversed the district court’s permanent injunction based on alleged violations of the CDAFA.

The panel vacated the district court’s permanent injunction based on copyright infringement because the district court assessed the relevant factors by reference to both the copyright and the CDAFA claims, without considering separately the propriety of issuing an injunction as to the copyright claims alone.

The panel reversed the district court’s judgment with respect to Ravin’s liability for attorneys’ fees. As to Rimini, the panel vacated the fee award and remanded for reconsideration in light of Oracle’s more limited success at litigation in view of the panel’s conclusion that there was no violation of the state computer laws.

The panel reduced the district court’s award of taxable costs and affirmed its award of non-taxable costs.

Download Oracle USA v. Rimini Street

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Wi-Fi One, LLC v. Broadcom Corp.

Congress has prohibited the Director of the United States Patent and Trademark Office from instituting inter partes review if the petition requesting that review is filed more than one year after the petitioner, real party in interest, or privy of the petitioner is served with a complaint for patent infringement. 35 U.S.C. § 315(b). Congress also provided that the Director’s determination “whether to institute an inter partes review under this section shall be final and nonappealable.” Id. § 314(d). The question before us is whether the bar on judicial review of institution decisions in § 314(d) applies to timebar determinations made under § 315(b). In Achates Reference Publishing, Inc. v. Apple Inc., 803 F.3d 652, 658 (Fed. Cir. 2015), a panel of this court held in the affirmative that a § 315(b) time-bar determination is final and nonappealable under § 314(d). Today, the court revisits this question en banc.

We recognize the strong presumption in favor of judicial review of agency actions. To overcome this presumption, Congress must clearly and convincingly indicate its intent to prohibit judicial review. We find no clear and convincing indication of such congressional intent. We therefore hold that the time-bar determinations under § 315(b) are appealable, overrule Achates’s contrary conclusion, and remand these cases to the panel for further proceedings consistent with this opinion.

Download Wi-Fi One LLC v. Broadcom Corp.

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Monsanto Technology LLC v. E.I. DuPont de Nemours

Appellee E.I. DuPont de Nemours & Co. (“DuPont”) sought inter partes reexamination of various claims of Appellant Monsanto Technology LLC’s (“Monsanto”) U.S. Patent No. 7,790,953 (“the ’953 patent”). The U.S. Patent and Trademark Office’s (“USPTO”) Patent Trial and Appeal Board (“PTAB”) issued a final decision that affirmed an examiner’s rejection of claims 1, 7, 12–22, 24, and 27–30 (“the Asserted Claims”) as anticipated by U.S. Patent No. 6,426,448 (“Booth”), and of, inter alia, claim 2 as obvious over Booth. See E.I. DuPont de Nemours & Co. v. Monsanto Tech. LLC, No. 2015-007692, 2016 WL 4255131, at *3 (P.T.A.B. Aug. 10, 2016). Monsanto appeals. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1295(a)(4)(A) (2012). We affirm.

Download Monsanto Technology LLC v. E.I. DuPont de Nemours

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.

Microsoft Corp. v. Biscotti

Microsoft Corporation (“Microsoft”) appeals from decisions of the Patent Trial and Appeal Board (“Board”) in three separate inter partes review (“IPR”) proceedings, in which the Board found that Microsoft failed to show by a preponderance of the evidence that the challenged claims of U.S. Patent No. 8,144,182 (“’182 patent”) were anticipated or obvious. See Microsoft Corp. v. Biscotti Inc., No. IPR2014-01457, 2016 Pat. App. LEXIS 7571 (P.T.A.B. Mar. 17, 2016); Microsoft Corp. v. Biscotti Inc., No. IPR2014-01458, 2016 Pat. App. LEXIS 7572 (P.T.A.B. Mar. 17, 2016); Microsoft Corp. v. Biscotti Inc., No. IPR2014-01459, 2016 Pat. App. LEXIS 7573 (P.T.A.B. Mar. 17, 2016). Because the Board’s decisions are supported by substantial evidence and do not rely on an erroneous claim construction, we affirm.

Download Microsoft Corp. v. Biscotti

Need help protecting your intellectual property? Visit Gehrke & Associates, SC to learn more about how we can help enhance and defend your intellectual property.  Thank you.