Here is a report on recent news and commentary related to the Federal Circuit and its cases. Today’s report highlights an article about the Supreme Court’s rejection of Apple’s petition for certiorari in one of its cases against VirnetX, a comment on the Federal Circuit’s treatment of “consisting essentially of” language in patent claims, and an article discussing the Federal Circuit’s rejection of an en banc petition in a case vacated in light of Arthrex.
The New York Times picked up a Reuters report by Andrew Chung that explains how in VirnetX Inc. v. Apple Inc. “[t]he U.S. Supreme Court on Monday refused to hear Apple Inc’s bid to avoid paying about $440 million in damages for using patent licensing firm VirnetX Inc’s internet security technology without permission in features such as FaceTime video calling.” As explained by Chung, “[t]he justices rejected Apple’s appeal in the long-running case in which a federal jury in 2016 found that Apple had infringed VirnetX’s patents and awarded $302 million.”
At PatentlyO, Dennis Crouch commented on the Federal Circuit’s denial of HZNP’s petition for en banc rehearing in HZNP Finance Limited v. Actavis Laboratories UT, Inc. Crouch notes the Federal Circuit held “that the ‘consisting essential[ly] of’ transition indicates that the claim requires the listed elements and is also ‘open to unlisted ingredients that do not materially affect the basic and novel properties of the invention.'” According to Crouch, “the ‘basic and novel properties of the invention’ become a claim limitation that itself must be definite,” but “only a minority of patent applications expressly identify and explain the novel features of the invention.” (On Wednesday we reported on the denial of the petition.)
Dani Kass reported for Law360 that “[t]he full Federal Circuit has left in place a panel decision vacating the Patent Trial and Appeal Board’s invalidation of a technology licensing company’s patent, shrugging off warnings from the U.S. Patent and Trademark Office that the court is ‘reflexively’ invoking Arthrex.” According to Kass, in Image Processing Technologies, LLC v. Samsung Electronics Co., “[b]oth the original panel and en banc court refused Monday to rehear the December decision, which gave Image Processing Technologies LLC another chance to defend its image processing patent from a pair of Samsung Electronics Co. Ltd.’s challenges.”