Patent Law Practice Center

Patent Litigation Does Not Create “Domestic Industry”

Several weeks ago, the Federal Circuit issued another decision relating to the “domestic industry” requirement.

Motiva, LLC appealed the decision of the International Trade Commission that Nintendo Co., Ltd. and Nintendo of America, Inc. did not violate § 337 of the Tariff Act of 1930 by importing, selling for importation, or selling certain video game systems and controllers. Ultimately, the Federal Circuit determined that the ITC properly determined that a domestic industry does not exist nor is in the process of being established for U.S. Patent Nos. 7,292,151 (“the ‘151 patent”) and 7,492,268 (“the ‘268 patent”). Thus, the decision of the ITC was affirmed.

The dispute between the parties started n 2008, when Motiva filed suit against Nintendo in the United States District Court for the Eastern District of Texas accusing Nintendo’s Wii video game system (“Wii”) of infringing the ’151 patent. The case was later transferred to the United States District Court for the Western District of Washington. In June 2010, that district court stayed the case pending completion of reexamination of the ’151 patent by the U.S. Patent and Trademark Office.

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Federal Circuit Makes Mess of Software Patents

In what can only fairly be characterized as a patent tragedy, the United States Court of Appeals for the Federal Circuit now has no official position on the patentability of system claims that objectively recite volumes of tangible structures that clearly satisfy the machine-or-transformation test. Less than 5 years after giving the industry the rigid machine-or-transformation test, which was ultimately struck down by the Supreme Court, five of the ten judges that heard CLS Bank v. Alice Corporation en banc would find that claims that seem to clearly satisfy the machine-or-transformation test are not patent eligible.

The per curiam decision of the Federal Circuit was very brief. It simply stated:

Upon consideration en banc, a majority of the court affirms the district court’s holding that the asserted method and computer-readable media claims are not directed to eligible subject matter under 35 U.S.C. § 101. An equally divided court affirms the district court’s holding that the asserted system claims are not directed to eligible subject matter under that statute.

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CAFC Sends Nautilus Infringement Case Back to SNDY

CAFC Chief Defends the Patent System and Defines “Patent Troll”

Recently Chief Judge Rader of the United States Court of Appeals for the Federal Circuit made a strong defense of the patent system in a chat billed as a fireside chat at the AUTM annual meeting in San Antonio, Texas. In his opening salvo into the issue of patent litigation abuse, the Chief explained:

Interestingly, that has been misdirected towards the patent system. Even earlier this afternoon I received an invitation from a House Committee to come and talk about abuse of the patent system. I’m not sure I’ll be able to attend, but if I could attend I’ll tell you exactly what I would say: There is nothing wrong with the patent system.

The patent system has a narrow focus. It is not a consumer affairs program. It is not a manufacturer’s guarantee compliance program. It’s not a competition program.  It has one objective, summarized well by the Constitution: promote the progress of science and the useful arts. It’s there to create more investment and more incentive for innovation and invention. The things that the patent system is criticized for are not its job.

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Top 5 Patent Law Blog Posts of the Week

Today we continue our weekly installment highlighting the best of the patent blogosphere from the past week. If there are any patent blogs you think should be highlighted by our Top 5, please comment on this post and we’ll check them out.

1) Patents Post-Grant: Update from the Central Reexamination Unit – This post reports on the Central Reexamination Unit’s update on the USPTO’s efforts to refine the patent reexamination process, and that the stream line proposals of 2011 are still being reviewed.

2) Patent Docs: USPTO Seeks Comments on New Sequence Listing Standard – This post summarizes the notice published by the USPTO in the Federal Register regarding  an international effort to revise the standard for Sequence Listing submissions. The post also shares how comments regarding the proposed standard can be submitted for review.

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