Here is an update on activity in patent cases pending before panels of the Federal Circuit where the cases have attracted 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 three recent opinions in cases raising questions related to patent eligibility, Article III standing, and infringement; one newly identified case raising a question related to infringement that attracted three amicus briefs; one recent oral argument in a case that raised questions related to sanctions, one new response brief in a case that raised questions related to patent eligibility, and one new principal and response brief in a case that raised questions related to sanctions and obviousness. Here are the details.
Opinions
Since our last update, Federal Circuit panels have issued three opinions in patent cases that attracted amicus briefs.
Arendi S.A.R.L. v. Oath Holdings Inc.
In this case, Arendi appealed a judgment of a district court, raising questions concerning patent eligibility, claim construction, indefiniteness, and infringement. In an opinion authored by Judge Linn and joined by Judges Dyk and Hughes, the Federal Circuit affirmed the district court’s judgment. See our opinion summary for more information.
A.L.M. Holding Co. v. Zydex Industries Private Ltd.
In this case, A.L.M. Holding appealed a district court’s conclusion that it lacked Article III standing. In an opinion authored by Judge Chen and joined by Judges Stark and Cunningham, the Federal Circuit reversed the judgment and remanded the case for further proceedings. See our opinion summary for more information.
Ollnova Technologies, Ltd. v. Ecobee Technologies ULC
In this case, the patent owner, Ollnova, appealed a denial of requested prejudgment interest, and the accused infringer, Ecobee, cross-appealed the lower court’s decisions on jury instructions and multiple issues including eligibility, infringement, damages, and marking. In an opinion authored by Judge Chen and joined by Judges Stark and Cunningham, the Federal Circuit affirmed-in-part, dismissed-in-part, and vacated the judgment and remanded the case. See our opinion summary for more information.
New Case
Since our last update, we have identified one patent case that attracted amicus briefs.
Arbutus Biopharma Corp. v. Moderna, Inc.
In this case, Moderna filed an appeal presenting the following question:
- “Whether [28 U.S.C.] § 1498 provides the exclusive remedy—a suit against the United States in the Court of Federal Claims—for Plaintiffs’ claims of (1) direct infringement and (2) indirect infringement based on the vaccine doses Moderna manufactured in performing its C-100 Contract for the Government.”
Three amicus briefs supporting the appellant and reversal were filed.
In its amicus brief, the Texas Conservative Coalition Research Institute asserts it is “clear that the party—in this case, the United States government—that contracts for a good, pays for a good, and takes possession and control of a good, is the party that said good was produced ‘for,’ and, thus, the party that produced that good—in this case, Moderna—should have the benefit of the protections afforded to it under 28 U.S.C. § 1498.”
In his amicus brief, Dr. Matthew Hepburn argues “the court’s unduly narrow view of what it means to act ‘for the Government’ will limit the federal government’s ability to fulfill its duty under the Constitution to ‘insure domestic Tranquility,’ ‘provide for the common defense,’ and ‘promote the general Welfare.'”
In its amicus brief, the National Association of Manufacturers argues the “district court’s decision is unsupported by the text and history of Section 1498(a), is inconsistent with the experiences of manufacturers that regularly sell to the government, and threatens to chill government contracting.”
Oral Argument
Since our last update one case that attracted an amicus brief has been argued. It is OpenSky Industries, LLC v. VLSI Technology LLC. In this case, OpenSky cross appeals to challenge sanctions issued by the Director of the Patent and Trademark Office as part of an inter partes review proceeding before the Patent Trial and Appeal Board. We have posted an argument recap.
Response Brief
Since our last update, one response brief was filed in a case including an amicus brief.
VidStream LLC v. Twitter Inc.
As a reminder, Twitter’s opening brief in this case presented the following questions:
- “Is a patent claim directed to collecting, processing, and outputting a particular kind of video data using generic computer technology unpatentable under 35 U.S.C. § 101?”
- “If a jury finds one claim invalid and a near-identical second claim valid, is the second claim also invalid when it includes only a single unique limitation and it is not disputed that this single limitation is known in the prior art?”
- “Should a damages award be vacated where the district court states that the exclusion of an expert’s damages opinion is ‘the exception, not the rule,’ the underlying expert opinion fails to apportion and is based on documents that lack technical and economic comparability to the asserted patents, and ultimately the jury never hears any testimony about the standalone value of the lone claim it found infringed?”
- “Should a prejudgment interest award be vacated when the plaintiff sought a running royalty, but the district court calculated the award based on an assumption that all royalties have been paid as a lump-sum on the day the infringement began (before plaintiff owned the patent) and continued to accrue over the years the case was stayed?”
Now, in its response brief, Vidstream asserts “Twitter offered no evidence during summary judgment about technological improvements, and its contrary evidence was conclusory and drawn to individual limitations rather than the inventive combination.” It further contends that “Twitter’s argument is forfeited, and Twitter’s preferred findings from the other invalidity verdicts do not receive preferential treatment over the jury’s Claim 17 findings.”
Principal and Response Brief
Since our last update one principal and response brief was filed in a case including an amicus brief.
VLSI Technology LLC v. OpenSky Industries, LLC
As a reminder, VLSI’s opening brief in this case presented the following questions:
- Whether the Director’s sanctions rulings, including refusal to terminate the IPR, were arbitrary, capricious, contrary to law, or otherwise inconsistent with reasoned decisionmaking.”
- “Whether Intel was improperly joined because its IPR petition was untimely and thus not ‘properly file[d],’ 35 U.S.C. § 315(c).”
- “Whether the PTAB’s obviousness rulings must be set aside because they rest on an erroneous claim construction and are unsupported by substantial evidence or reasoned decisionmaking.”
Now, in its principal and response brief, OpenSky Industries presents the following questions in its cross appeal:
- “Did the Director act in excess of statutory authority by awarding VLSI attorney fees in IPR2021-01064 where the statute does not ‘specifically and explicitly’ authorize an attorney fee award, as required by the ‘American Rule’ and governing Supreme Court precedent?”
- “Was the Director’s award of sanctions ‘arbitrary and capricious’ or ‘contrary to constitutional right or immunity,’ 5 U.S.C. § 706(2)(A) or (B), because the award penalizes an objectively-reasonable petition immunized under the Noerr-Pennington doctrine?”
- “Was the Director’s sanction award an abuse of discretion or contrary to law, because it failed to make showings of ‘sole,’ ‘but for’ causal links between wrongful conduct and costs, as required by Goodyear Tire & Rubber Co. v. Haeger, 581 U.S. 101 (2017)?”
- “Were the Director’s determination of abuse of process and award of attorney fees contrary to constitutional right or immunity, short of statutory right, arbitrary and capricious, or unsupported by substantial evidence, for failure to provide OpenSky with notice and opportunity to present its case, failure to observe requirements for an agency’s receipt of substantial evidence, and failure to provide the ‘cogent explanation’ required by the APA?”
OpenSky Industries asserts the “Director has no authority to award attorney fees against OpenSky . . . because “specific and explicit” statutory authorization is required.” It further claims the “Director’s sanctions against OpenSky penalize conduct protected under the Noerr-Pennington doctrine, which shields petitioning activity and ‘ancillary’ litigation conduct from liability unless it qualifies as ‘sham litigation.'” OpenSky additionally argues the “Director improvised procedures, imposed gag orders, and employed factfinding procedures that are well below statutory and constitutional guarantees.”