As we mentioned on Monday, three cases that will be argued in July at the Federal Circuit attracted amicus briefs. One of those cases is AliveCor, Inc. v. Apple Inc., a patent case. In it, the Federal Circuit will review a judgment of the Patent Trial and Appeal Board, which held several of AliveCor’s patents to be invalid for obviousness. This is our argument preview.
In its opening brief, AliveCor, Inc. argues that the Board’s conclusion of obviousness “rests on legally irrelevant testimony of Apple’s prior art expert” and “findings having no relationship to the claims.” Related to the alleged irrelevant testimony, AliveCor points out that “in deposition [the expert] conceded lack of knowledge” and, as a result, the “testimony is unreliable and irrelevant.” Turning to the findings, AliveCor notes that the Board “did not find that using machine learning” with the relevant data “alone for detection of an arrhythmia would have been obvious based on the cited art.” AliveCor then argues that prior art “teachings regarding searching for correlations” between the relevant data “do not teach confirming the presence of an arrhythmia, as required by the claims.” Lastly, AliveCor argues, “Apple did not comply with its ongoing, self-executing, and self-enforcing obligation to produce evidence relating to secondary considerations of non-obviousness.”
In its response brief, Apple Inc. argues that “[s]ubstantial evidence supports the Board’s factual finding that [prior art] renders obvious using ECG data to ‘confirm’ an arrhythmia detected by PPG data.” It further argues that “[s]ubstantial evidence supports the Board’s conclusions that a skilled practitioner would have found obvious the machine-learning claims.” Apple points out that while its expert “does not possess ‘advanced skills’ in machine learning . . . the Board appropriately found that no machine-learning expertise was required to testify as to the knowledge of a skilled practitioner” in this case. Apple lastly argues that AliveCor’s claims regarding Apples alleged failure to produce evidence are waived because “AliveCor did not raise this issue before the Board.”
In its reply brief, AliveCor maintains that Apple cannot identify substantial evidence to support the Board’s rulings and disregards “the lion’s share of evidence submitted in the proceedings below.” AliveCor also notes that, despite “clear obligations, Apple chose not to produce secondary considerations evidence.”
The Medical Device Manufacturers Association filed an amicus brief in support of AliveCor and reversal. It argues that “withholding evidence undermines consistent and informed agency decision-making.” It contends “the court should make clear that” parties must “voluntarily disclose to the PTAB all arguably conflicting evidence.”
Oral argument will be heard on Friday, July 12. We will keep track of this case and report on any developments.