Argument Preview

As we previously mentioned, four cases being argued in June at the Federal Circuit attracted amicus briefs. Two of those cases are appeals from ex parte reexaminations involving the same appellant, Cellect, LLC. In In re Cellect, LLC (“Cellect I”), the Federal Circuit will review a judgment of the Patent Trial and Appeal Board finding patent claims unpatentable for obviousness-type double patenting. This is our argument preview.

In its opening brief, Cellect argues the “Board erred in construing the claimed ‘time select switch . . . for selectively varying integration periods’ as not requiring the circuitry that performs the variation of interval periods.” Cellect then contends that “the Board compounded its error by applying its incorrect construction to its obviousness analysis.” As a result, Cellect maintains, “the Decision should be vacated.”

In is response brief, the Patent and Trademark Office argues the “Board correctly construed the term ‘time select switch’ . . . as not requiring” certain circuitry. The government then asserts, “given its proper construction of ‘time select switch,’ the Board rightly found” the claims to be unpatentable. Moreover, she contends, “the Board’s underlying factual findings are supported by substantial evidence and its ultimate conclusion of obviousness-type double patenting is correct as a matter of law.”

In its reply brief, Cellect asserts “the remote time select switch must selectively vary integration periods and thus requires associated circuitry for performing that function.” It highlights that the patent “discloses and claims the ability to adjust the brightness of a particular image through variation of integration periods.” And, it points out, “the express claim language discloses a time select switch that is ‘remote from said first circuit board for selectively varying integration periods to produce an image of a desired brightness.'”

Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc. filed an amicus brief in support of the PTO. The brief argues that, “under the guise of plain meaning, Cellect twists the meaning of the term ‘time select switch . . . for selectively varying integration periods’ one way to fit its needs in litigation and another to try to avoid prior art in this proceeding.” The brief also asserts “the intrinsic evidence confirms that ‘time select switch’ does not require circuitry for varying the integration period.”

This case will be argued (with its companion case, back to back) on Friday, June 9. We will report on any developments.