Argument Preview

There are three cases that will be argued this month at the Federal Circuit that attracted amicus briefs. Last week we reported on two of these cases. The third is AliveCor, Inc. v. International Trade Commision. In this case, the Federal Circuit will review a judgment of the International Trade Commission in a patent infringement dispute between AliveCor, Inc. and Apple Inc. On the one hand, the Commission found that certain patent claims asserted by AliveCor are invalid under under 35 U.S.C. § 101 and that certain claims are not infringed by Apple. The Commission also found that other claims are not invalid and are infringed. Both AliveCor and Apple appealed. This is our argument preview.

In its opening brief, AliveCor argues the “the Commission legally erred” in ruling certain claims invalid under 35 U.S.C. § 101. According to AliveCor, “at step one of the § 101 analysis, the Commission erroneously concluded” that the claims are directed to an abstract idea. Further, AliveCor argues, “at step two, the Commission erred in failing to consider the record evidence showing that the claims contain inventive concepts sufficient to render them patent-eligible under § 101.” In addition, AliveCor argues a “non-infringement determination should be reversed for two reasons.” First, AliveCor contends, “the Commission failed to adopt the established and well-reasoned construction” of a limitation. Second, AliveCor continues, “the Commission compounded its error when it disregarded all of AliveCor’s cited evidence of infringement on the basis that it was inconsistent with the new claim construction.”

Apple, Inc. filed a response and cross appeal brief. It argues that the Federal Circuit “should reverse the Commission’s finding of a Section 337 violation” and its entry of remedial orders. According to Apple, however, “[t]he Court should affirm the Commission’s finding of no violation” as to the patent at issue in AliveCor’s appeal. With respect to its cross-appeal, in more detail Apple argues “[t]he Commission erred in finding infringement . . . by ignoring the plain meaning of the asserted claims.” Further, Apple argues, “[t]he Commission erroneously held that AliveCor’s patent claims are not obvious.” With respect to the appeal, however, it argues “[s]ubstantial evidence supports the Commission’s conclusion” of non-infringement, and it contended the “Commission correctly determined that . . . asserted claims . . . are not patent-eligible.”

The International Trade Commission, in its response brief, addresses Apple’s contentions and argues “the Commission properly construed the limitation” in question and, “[u]nder that construction, Apple does not dispute that its accused products infringe.” In addressing Alivecor’s arguments, it argues “[s]ubstantial evidence supports the Commission’s finding that Apple’s accused products do not infringe.” It further argues the Commission correctly determined that the relevant claims “are directed to a patent-ineligible abstract idea and merely recite activities that physicians routinely conduct, using conventional and generic sensors in their ordinary manner to measure cardiac activity.”

In its response and reply brief, AliveCor maintains arguments that “AliveCor invented the AFib-detection-and-confirmation technology at issue here, not Apple.” AliveCor argues “[t]he Commission was . . . correct to find a Section 337 violation as to AliveCor’s . . . patents.”

In its reply brief, Apple argues AliveCor failed to prove a domestic industry or infringement of valid patent claims.

This case attracted an amicus brief from Robert M. Wachter, MD in support of Apple Inc. and reversal. Dr. Wachter argues that Apple Watch “offers an accessible and non-invasive way to detect conditions like atrial fibrillation that may otherwise go undetected and untreated” and should be allowed into the United States. Leslie A. Saxon, MD also filed an amicus brief in support of Apple and reversal. Dr. Saxon argues that “[t]he Apple Watch’s uniquely high adoption rate” will have a “positive impact on public health and welfare.” Unified patents LLC similarly filed an amicus brief in support of Apple and reversal. Unified Patents argues that the “ITC’s patent enforcement power . . . should be preventing the damage caused by unfair trade practices.” The Computer & Communications Industry Association filed another amicus brief in support of Apple and reversal. It argues “[t]he ITC is intended to protect domestic industry, but is actually used against it in cases such as this one.” Dr. Hugh Calkins was the last to file an amicus brief in support of Apple and reversal. Dr. Calkins argues that “the Apple Watch has become an important tool that serves the public health interests of United States citizens.”

On the other hand, Omron Healthcare Inc. filed an amicus brief in support of the International Trade Commission and affirmance. It argues the Commission “properly found a domestic industry” because Congress sought to protect “the types of continuing research investments made by AliveCor.” The Medical Device Manufacturers Association, Alliance Of U.S. Startups & Inventors For Jobs, Innovation Alliance, and Khosla Ventures filed an amicus brief in support of the International Trade Commission and affirmance. They argue that, “if Apple’s reasons are deemed sufficient to justify an exemption from the ITC’s remedial orders, such a result would seriously undermine and devalue patent rights and, as a result, any domestic industry practicing those rights.”

Oral argument will be heard on Friday, July 12. We will keep track of this case and report on any developments.