Software Patentability 2017

Today, most computer innovations relate to software, at least in some important ways, and the USPTO continues to issue at least some patents for software-related inventions. No one seriously believes software will become patent ineligible per se, although it is undeniable that there is now a much steeper hill to climb than there once was. The trick is to define the invention as providing a technological solution to a technological problem. See A Guide to Software Patents and Software Patent Eligibility at the Federal Circuit.

For now, there has been no definitive statement by the Supreme Court that software is, in fact, patent eligible, although the Court has recognized at least some software-related innovation as being patent eligible. See Diamond v. Diehr. The Supreme Court also continues to consider the invention at issue in State Street Bank to be patent eligible, even if the “useful, concrete and tangible result” test does not live on.

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Sony sues Fujifilm on 3M-acquired patents

Sony Corporation recently filed a patent infringement lawsuit in U.S. District Court for the Southern District of Florida against Japanese photography and imaging company Fujifilm. At the center of Sony’s legal action are magnetic tape products marketed by Fujifilm which allegedly practice technology copied from Sony without a license.

In the official complaint filed by Sony, the company asserts a series of four patents, which it alleges Fujifilm infringed through the sale of the company’s Linear Tape-Open (LTO) format magnetic tapes, specifically generation four, five and six LTO tapes (LTO-4, LTO-5, LTO-6).

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Apple v. Samsung remanded back to district court

Recently, in a non-precedential decision, the United States Court of Appeals for the Federal Circuit remanded Apple, Inc. v. Samsung Electronics Co. back to Judge Lucy Koh (shown left) of the United States Federal District Court for the Northern District of California. In December 2016, the Supreme Court overturned a $400 million damages award for design patent infringement. In its ruling, the Supreme Court explained that damages may be limited to revenues attributable to a component of an article of manufacture and not the entire article itself. See Samsung Electronics Co. v. Apple, Inc.

Apple requested that the Federal Circuit keep the case and the panel review the decision in light of the Supreme Court’s ruling, while Samsung requested that the Federal Circuit remand the matter to the district court for a new trial on damages. The Federal Circuit adopted neither suggestion. Instead, the Federal Circuit chose to remand the case for further proceedings, which the panel explained may or may not include a new trial on damages. Judge Koh will decide whether a new trial on damages is necessary.

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115th Congress: Meet the Key Republicans on IP Reform

On January 3, 2017, the 115th Congress officially convened. In the Senate, it will be the Senate Judiciary Committee where any action relating to intellectual property reform will play out during the 115th Congress. In the House of Representatives, it will be the House Judiciary Committee that will be the body of primary importance insofar as any intellectual property reforms are concerned. Unlike the Senate, in the House, the front line action will take place in subcommittee, specifically the Subcommittee on Courts, Intellectual Property, and the Internet will take the lead for the full House Judiciary Committee.

Unlike in previous years, we enter 2017 without much support for a fresh round of patent reform, but at least some patent reform measures are sure to be introduced during the 115th Congress. In fact, just recently Congressman Bob Goodlatte, who is once again Chair of the House Judiciary Committee, put forth his legislative agenda which included patent litigation reform. Senator Chris Coons (D-DE) is also talking about it being time for Congress to amend 35 U.S.C. 101.

Senator Chuck Grassley (R-IA), pictured left, will once again be chair of the Senate Judiciary Committee. Grassley is a strong supporter of the development of wind, solar, biodiesel, biomass and ethanol as a sustainable, domestic, renewable energy source, which is not surprising since he comes from the heart of America’s farmland. Grassley is a pragmatic politician. In April 2014, when large entities were pushing hard for the latest round of patent reform to pass, Grassley pumped the breaks, acknowledging that there were significant differences of opinion on the need for additional reform. “Sometimes it takes more time than we’d like, but, the end result is a better product. I’m willing to sacrifice a little time to develop a bipartisan bill that we can all support.”  Grassley’s pragmatic approach slowed things down during the 113th Congress, but Grassley introduced the PATENT Act in the 114th Congress. Throughout the 114th Congress, Grassley’s staff was aggressively searching for stories about small businesses being abused by patent trolls, which he could use to give patent reform momentum. Such momentum never materialized, despite the fact that the PATENT Act was able to pass the Judiciary Committee. It is believed that Grassley remains supportive of patent reforms that most inventors would deem unacceptable. (more…)

Jockeying for Position in a Sleep Apnea Patent Lawsuit

headgearSeveral months ago, respiratory health device developer ResMed Inc. filed multiple legal actions against Fisher & Paykel Healthcare. ResMed is alleging that multiple Fisher & Paykel products infringe upon its patents. ResMed filed actions with the U.S. International Trade Commission(ITC) and the U.S. District Court for the Southern District of California (S.D. Cal.), as well as courts in Germany and New Zealand.

ResMed argues that Fisher & Paykel is infringing upon patents it holds related to modular mask systems, headgear design, and cushion design for masks for sleep apnea patients. ResMed attempted to assert its rights on four particular patents in its portfolio.

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