This week the Federal Circuit will convene six panels to consider about 37 cases. This month, like last month, the court will hear all of its oral arguments telephonically given the coronavirus pandemic. Moreover, the court will hear fewer oral arguments than normal, with only about 13 cases being argued this month. Of the argued cases, only one case attracted amicus briefs.
As discussed in our argument preview, the Federal Circuit previously determined that Apple had infringed a patent claim asserted by Conversant, but the Federal Circuit remanded the case to the district court to decide the issue of enforceability. This district court found the patent unenforceable, and this is an appeal from the district court’s judgment. On appeal, Conversant asks the Federal Circuit to vacate the judgment and hold that the patent is not unenforceable.
Conversant admitted in its opening “that Nokia, the original patentee of the ’151 Patent, made an untimely disclosure of a related patent application to the ETSI standards setting body.” The district court, as a result, found the patent unenforceable. On appeal, Conversant disagrees.
Two amicus briefs were filed by Nokia and Ericsson, Panasonic, Blackberry, and Koninklijke Philips, both in support of Conversant. Nokia argues in particular that “imposing the severe remedy of unenforceability in these circumstances could potentially have far-reaching and unintended consequences in the industry.” Ericsson, Panasonic, Blackberry, and Koninklijke Philips argue that the case was “remanded for the district court to address remedy under Therasense Inc. v. Becton, Dickinson and Co.,” but the district court “departed from Theransense’s central teaching as well as general equitable principles.” Further, “[a] rule that finds patents unenforceable for failure to disclose immaterial information invites the evils—wasteful over-disclosure and litigation gamesmanship—that Therasense sought to banish.”
Marc A. Fenster will argue for Conversant.
William F. Lee will argue for Apple.
This argument will take place on Tuesday, August 4, 2020, at 10:00 A.M.