- Qualcomm Urges Fed Circuit to Keep PTAB Win Against Apple – Arguing that Apple is now trying to “manufacture a legal issue,” Qualcomm maintains that the PTAB correctly upheld its patent on a touch-screen function that allows users to toggle between multiple windows.
- CAFC Affirms Sanctions Entered Against Overly Litigious Doctors – Last week, the Court of Appeals for the Federal Circuit (CAFC) affirmed a district court decision in Kahn v. Hemisphere Inc, which involved an action for patent infringement regarding an arteriovenous shunt.
- Government Reliance on Waiver Argument to Keep Price Adjustment Windfall Fails – In articulating limits to the government’s ability to rely on the waiver doctrine to enforce Federal Acquisition Regulation (“FAR”) provisions of questionable legality, the Federal Circuit in effect challenges the government’s approach to measuring the impact of cost accounting practices changes.
Here’s the latest.
Qualcomm Urges Fed Circ. To Keep PTAB Win Against Apple
In January, Qualcomm received a favorable ruling from the Patent Trial and Appeal Board in a dispute against Apple regarding its touch-screen patent. As articulated in the article by Hu, Apple argued last month that the board erred in reading in an extra requirement and thus incorrectly concluded that prior art did not render the patent invalid. However, Qualcomm criticizes Apple’s argument as being manufactured and asks the Federal Circuit to affirm the PTAB’s ruling. Hu elaborates:
In upholding the validity of Qualcomm’s patent, the PTAB found in January that Apple had raised an impermissible new invalidity argument too late in the game. According to PTAB rules, a petitioner must present all of its invalidity arguments in the petition because of the expedited nature of the board’s proceedings.”
CAFC Affirms Sanctions Entered Against Overly Litigious Doctors
Rebecca Tapscott summarizes a recent CAFC decision involving an allegation of patent infringement regarding the HeRO Graft Shunt. As Tapscott articulates, the CAFC held that the “the district court did not abuse its discretion in dismissing the action, granting the defendants’ sanctions motion, denying the Khans’ sanctions motion, or denying Merit Medical’s motion for attorney fees under § 285.” Tapscott explains how the CAFC reached their decision:
The CAFC noted that nothing . . . suggested that ‘sanctions are precluded for frivolous venue and service assertions, even if those assertions are considered “ancillary” to the merits of a plaintiff’s infringement claims.'”
Government Reliance on Waiver Argument to Keep Price Adjustment Windfall Fails
According to Arnold, although the Court of Federal Claims (“COFC”) seemed to agree with Boeing that FAR 30.606 is inconsistent with 15 U.S.C. 1503(b), the court held that by not raising the issue prior to contract award, Boeing had waived this claim. The Federal Circuit reversed and held that there was no waiver by Boeing. Arnold highlights two key takeaways:
The Federal Circuit did not directly address the validity of FAR 30.606. But its reversal and remand to the COFC suggests the government may be on thin ice if it continues to take a ‘heads we win, tails you lose’ approach to measuring the impact of cost accounting practices changes. It is illogical and inequitable—and likely inconsistent with statute—to count only changes that cost the government more, and ignore those that save the government money.”
It is refreshing to see rejection of the waiver defense where raising an issue at the pre-award stage would have been futile, if even possible. But do not expect similar results in situations where the agency could possibly provide effective relief to a problem at the pre-award stage, or where the matter could be raised and heard in a pre-award bid protest. When in doubt, raise issues apparent in a solicitation early—before proposals are due.”
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