Here’s the latest.

ITC Ruling Offers Chance For Infringer Reprieve From Import Bans

Reported by Matthew Bultman on Bloomberg

In an unusual showing of deference to the Patent Trial and Appeal Board, the U.S. International Trade Commission has suspended enforcement of an import ban on drones, thus allowing some of the world’s largest commercial drone makers to continue sales and avoid months of lost revenue. Matthew Bultman explains that according to ITC’s opinion, the timeline of the case is critical in achieving remedial order suspension.

The ITC’s decision indicates it is willing to suspend enforcement of import bans when the PTAB makes an invalidity decision before the ban is issued, attorneys said. Some doubt the deference will extend further than that, or that this is the beginning of a bigger policy change at the ITC.”

Bultman further suggests that in a race against the clock, this ITC ruling offers a strategic opportunity for accused infringers.  

Alleged infringers able to anticipate an ITC complaint, and get ahead of it with a PTAB petition for inter partes review, might be in a better position.”

Racing Tribunals: The Judge, the Jury, and the PTAB

Reported by Dennis Crouch on PatentlyO

The U.S. Supreme Court is set to rule on a petition to hear Personal Audio, LLC v. CBS Corporation this coming fall. Previously, a jury sided with Personal Audio, finding that the ‘504 patent was valid and infringed. As Dennis Crouch notes, by the time the jury verdict was issued, an IPR petition had been instituted by the PTAB. Soon thereafter, the PTAB found Personal Audio’s patent claims invalid. The district court cancelled the jury verdict and entered a final judgment in favor of the Defendant. The Federal Circuit affirmed and now the case is up before the U.S. Supreme Court. In the article, Crouch explores the several important questions this case presents including the effect of collateral estoppel and the timing of the jury verdict.

The basic argument is that collateral estoppel (issue preclusion) is not an open-and-shut business. Rather, any time a prior judgment of invalidity is invoked, the ‘patentee-plaintiff must be permitted to demonstrate, if he can, that he did not have a fair opportunity procedurally, substantively and evidentially to pursue his claim the first time.’ Blonder-Tongue Laboratories, Inc. v. U. of Illinois Found., 402 U.S. 313, 332–33 (1971).”

For more on this case, see our coverage.