Here is an update on activity in cases pending before panels of the Federal Circuit where the cases involve at least one amicus brief. We keep track of these cases in the “Other Cases” section of our blog. Today with respect to these cases we highlight two new opinions in two patent cases and one new case that attracted an amicus brief in another patent case. We also highlight new briefing in three patent cases as well as recent oral arguments in a veterans case and two patent cases. Here are the details.
New Opinions
Since our last update, the Federal Circuit issued two opinions in cases that attracted amicus briefs.
Backertop Licensing LLC v. Canary Connect, Inc.
In this case the Federal Circuit reviewed a determination by the District of Delaware that an out-of-state non-party was in contempt of court for disregarding an order requiring her to testify at a hearing. The Federal Circuit, in an opinion authored by Judge Hughes that was joined by Judges Prost and Stoll, affirmed the contempt order of the district court. The court held that “[i]t was not an abuse of discretion to compel Ms. LaPray’s attendance at the July 20, 2023, hearing and hold her in civil contempt of the court when she did not appear.” See our opinion summary for more details.
Amarin Pharma, Inc. v. Hikma Pharmaceuticals USA Inc.
In this case the Federal Circuit reviewed a district court’s grant of a motion to dismiss inducement claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The Federal Circuit reversed the judgment of the District of Delaware in an opinion authored by Judge Lourie that was joined by Chief Judge Moore and Western District of Texas Judge Alan Albright, who sat by designation. The court held that “Hikma’s press releases, at least prior to November 2020, consistently referred to Hikma’s product as a ‘generic equivalent to Vascepa®.’ . . . Those allegations, taken together with those relating to Hikma’s label, at least plausibly state a claim for induced infringement.” See our opinion summary for more information.
New Cases
Since our last update, we’ve identified a new case that attracted an amicus brief.
Telefonaktiebolaget LM Ericson v. Lenovo (United States) Inc.
In this patent case, Lenovo (United States) Inc., Motorola Mobility LLC, Lenovo (Shanghai) Electronics Technology Co. Ltd., Lenovo Beijing, Ltd., Lenovo Group Limited, and Motorola (Wuhan) Mobility Technologies Communication Co. appeal a district court’s order denying an antisuit injunction. The appellants argue in their opening brief that “[t]he threshold requirements for antisuit relief are present here.” They contend the district court “erred in its analysis” by “conflating Ericsson’s FRAND negotiating obligation with its FRAND licensing obligation.” The appellants maintain that, while “district court’s errors at step one are reason enough to remand . . . this court should reach steps two and three and reverse.”
In their response brief, Telefonaktiebolaget LM Ericsson, Ericsson AB, and Ericsson, Inc. argue “[t]he district court properly found that Lenovo’s request for an antisuit injunction fails at the threshold because the U.S. action is not dispositive of the foreign actions.” The appellees also contend that “Lenovo fails to show any factor that could overcome the blow to international comity an antisuit injunction would inflict.”
In their reply brief, the appellants maintain “[t]he district court’s analysis . . . is legally erroneous” and that the Federal Circuit “should reverse” and “order entry of the requested antisuit injunction.”
The App Association filed an amicus brief in support of the appellants.
New Briefing
Since our last update there are three cases with new briefing
In this patent case, Sonos, Inc. appealed a judgment of a district court, which found the patents in suit unenforceable under the doctrine of prosecution laches. Sonos argued in its opening brief that “[p]rosecution laches does not apply to Sonos’s zone-scene patents because the animating feature for that defense—an unfair timewise extension beyond the period Congress prescribed—is absent here.” Furthermore, Sonus argued, even if “prosecution laches could apply here, the district court abused its discretion.” Specifically, Sonos emphasized that the district court said “Sonos ‘diligently’ prosecuted the family of zone-scene patents for 13 years.” Additionally, Sonos argued, Google “could not have been prejudiced by any prosecution delays because Sonos had patent claims covering all zone scenes (overlapping or not) long before Google’s infringing products.”
In its response brief, Google argued “Sonos engaged in prosecution laches because it abused the continuation process at Google’s expense,” that “[t]he doctrine is not limited to pre-1995 patents, and it does not require term extension.”
We previously reported that five amicus briefs were filed in this case. Three supported reversal. Two supported affirmance.
Since our last report about this case, Sonos Inc. filed its reply brief. Sonos maintains that “[p]rosecution laches does not apply.”
Lynk Labs, Inc. v. Samsung Electronics Co.
In this patent case, Lynk Labs appealed a judgment of the Patent Trial and Appeal Board in an inter partes review proceeding finding all challenged patent claims unpatentable. In its corrected opening brief, Lynk Labs argued the Board made multiple “errors in this IPR, each independently requiring reversal.” First, Lynk Labs argued the “Board erroneously construed” claim terms of the patent by failing “to apply the ordinary meaning of the claim language and fail[ing] to consider other claims providing clear guidance.” Further, Lynk Labs argued, the “Board legally erred by holding a secret abandoned U.S. patent application, that published only after the challenged patent’s priority date, can be applied as prior art in an IPR.”
We previously reported that the Director of the United States Patent and Trademark Office filed a Brief for Intervenor. The Director argued that, by statute, a published patent application is a “printed publication.” Furthermore, the Director argued, Lynk Labs’s reading of the statute “would lead to anomalous results” and, as a result, its argument lacks merit.
In its response brief, Samsung argued the Board correctly applied “the plain language of the claim.” Samsung also argued Lynk Labs’s challenge to the Board’s determination concerning the priority date of a patent application “misunderstands the statutory scheme and contradicts long-standing PTO practice of which Congress was aware when it set up the IPR regime.”
This case attracted four amicus briefs. One supported reversal. Three supported affirmance.
Since our last report, Lynk Labs filed its reply brief. It maintains the Federal Circuit “should reverse the Board’s rulings and hold all Claims . . . patentable.”
Arlton v. AeroVironments Inc.
In this patent case, Paul and David Arlton seek reversal of a district court’s summary judgment rulings, as well as reversal of a denial of their motion for leave to file a first amended complaint. The Arltons argue in their opening brief that “the district court misinterpreted [a] statute, misapplied [the Federal Circuit’s] case law, and misconstrued the Government’s freedom of contract as absolute.” According to the Arltons, “[t]hese errors, individually and collectively, led the district court to conclude that . . . the Government was not obligated to contract with” their company. And, “[b]ecause this conclusion cannot be sustained,” they argue, the Federal Circuit “should reverse the district court’s recognition of the Government’s purported consent and hold that AeroVironment is not immune from suit under [28 U.S.C. §] 1498.” Moreover, the Arltons argue, the district court incorrectly applied the “de minimis” exception. They contend the district court extended it “to cover governmental, i.e., commercial, uses of the Arltons’ technology,” which is contrary to law. Lastly, Arlton contends that the district court erred in denying the motion for leave to file a first amended complaint because to meet the court’s requirements Arltons would have to “bring claims before they were procedurally or substantively ripe.”
We previously reported that in its principle and response brief AeroVironments argued the district court correctly granted summary judgment because “a patentee’s sole remedy for use or manufacture of a patented invention for the government” and with the government’s consent is by an action against the United States in the Court of Federal Claims. AeroVironments contended the district court correctly denied the Arltons’ motion for leave to amend their complaint because they filed over a month late and “failed to show good cause for their tardiness.” Lastly, AeroVironments maintained, the district court erred in denying AeroVironment’s motion for attorneys’ fees because the Arltons repeatedly pressed claims that were plainly barred by Section 1498.
An amicus brief was filed by the United States in support of AeroVironments and affirmance.
Since our last report, the Arltons filed their response and reply brief. The Arltons maintain the government does not have “absolute freedom of contract” because “exercising this freedom disregards [the government’s] preexisting contractual and statutory obligations.” They further argue “AeroVironment does not so much as acknowledge the question the Arltons present.” Lastly, the Arltons contend, the United States’s amicus brief “creat[es] a new question: can retroactive consent by the Government to the manufacture of Terry also retroactively render that manufacture ‘for the Government’?”
Argument Recaps
Last month, the Federal Circuit heard oral argument in three cases that attracted amicus briefs.
Metropolitan Area EMS Authority v. Secretary of Veterans Affairs
The Federal Circuit heard oral argument in Metropolitan Area EMS Authority v. Secretary of Veterans Affairs, a veterans case that attracted an amicus brief. In this case the Federal Circuit is reviewing a final rule passed by the Department of Veterans Affairs that would enable VA to pay the lesser of the actual charge or the Medicare fee schedule amount for non-contract ground transports. Judges Lourie, Stoll, and Stark heard the argument. For more information, check out our argument recap.
AliveCor, Inc. v. Apple Inc.
The Federal Circuit also heard oral argument in AliveCor, Inc. v. Apple Inc., a patent case that attracted an amicus brief. In this case the Federal Circuit is reviewing a judgment of the Patent Trial and Appeal Board, which held several of AliveCor’s patents to be invalid as obvious. Judges Hughs, Linn, and Stark heard the argument. For more information, check out our argument recap.
AliveCor, Inc. v. International Trade Commission
In July the Federal Circuit also heard oral argument in AliveCor, Inc. v. International Trade Commission, a patent case that attracted seven amicus briefs. In this case the Federal Circuit is reviewing a judgment of the International Trade Commission in a patent infringement dispute between AliveCor, Inc. and Apple Inc. Judges Hughes, Linn, and Stark heard the argument. For more information, check out our argument recap.