Here’s the latest.

Judge O’Malley Thinks Federal Circuit Could Be Back This Summer

Reported by Dani Kass at Law360

At a virtual panel hosted by the University of Texas School of Law Advanced Patent Law Institute on Thursday, Judges O’Malley and Newman along with former Chief Judge Michel talked about COVID-19’s effect on the Federal Circuit, advice for practitioners, and recommendations to the PTAB. Dani Kass recapped the event where Judge O’Malley and Judge Newman had differing views on a return to in-person arguments by the end of the summer.

“What I would have guessed three weeks ago is different than what I would guess now,” Judge O’Malley said. “I never expected the vaccination rate to be moving along as well as it is.” . . . “I don’t think anyone can reasonably guess [when we’ll return],” [Judge Newman] said. “We don’t want to put counsel or the public or our staff through undue risk. At the same time, I think we all feel the sooner, the better to return to the courtroom.”

Both judges also shared the commentary that they’ve received after going to telephonic arguments, but feel for younger lawyers who haven’t yet had the opportunity to be in open court.

“I have been surprised to see that clearly they think that some of us on the court, probably most of us, are not great poker players, and so they like to see our faces because they know where we’re coming from,” Judge O’Malley said. “When we’re on the phone, it’s easier to play devil’s advocate. I can sometimes hear the surprise when I give somebody a softball question. They’re not sure if they should answer it the way they immediately think they should or whether they should disagree with me.”

Judge Michel joined in to talk about misleading citations from cases and pet peeves such as multiple voices within the same brief and a string citation of cases where not all cases are relevant.

A Resilient Petticoat

Reported by Dennis Crouch at Patently-O

The Federal Circuit issued an opinion on Thursday concerning the PTAB’s findings of invalidity based on obviousness of Transtex’s patent. Dennis Crouch summarizes the opinion that concerned a “resilient strut” that holds the aerodynamic skirt of a tractor-trailer in place (similar to a petticoat). Transtex sued Laydon for patent infringement, and both parties went to the PTAB with petitions for inter partes review. The PTAB ultimately upheld some claims while finding other claims as obvious after combining two references and citing the lack of structural requirements for the strut.

The basic issue for the patentee is that the broadest claims do not include any structural requirements for the resilient strut except that it includes “a longitudinal shape variation.” . . . The valid claims were different because they include particular limitations requiring a “‘U’ shaped section” or “concave portions” which was not shown in the prior art asserted in the IPR.

Laydon also argued for a different font where the U in “Agency FB – ‘U'” would be more open-box shaped to better align with a prior art reference, but neither the PTAB nor the Federal Circuit found the argument compelling.

For more information, see our coverage.

Federal Circuit Backs Lyft in Ride-Sharing Patent Fight

Reported by Andrew Karpan at Law360

In RideApp Inc. v. Lyft, Inc., the Federal Circuit affirmed Lyft’s win at the lower court and the invalidity of RideApp’s patent that served as the basis for its suit. Andrew Karpan covered the case which started in 2018 and is similar to another case filed by RideApp against Uber. RideApp agreed to drop its case against Uber due to the ruling of the lower court in this case, but the Federal Circuit did not provide any hope for RideApp. The Federal Circuit focused on the failure of the patent to describe how users were matched to particular routes or vehicles. The Federal Circuit also highlighted the patent’s reliance on a unspecified calculation of distance between locations performed by GPS.

“Without any limit on how the invention calculates proximity, RideApp ‘has in effect claimed everything that [performs the task] under the sun,'” wrote Judge Chen.

Ultimately, the patent was just too broad and generic according to the Federal Circuit which doomed both the infringement suit and the patent.

For more information, see our coverage.