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Earlier this week, we noted that Apple directed the Federal Circuit’s attention to Judge Robart’s Microsoft-Motorola decision in Apple-Motorola “Posner Appeal.”  (For a recap of the parties’ FRAND-related appellate briefing in the case thus far, see our prior posts on Motorola’s opening brief and Apple’s responsive brief).  Yesterday, Motorola’s reply brief became publicly available.

[2013.05.13 Motorola Reply Brief (12-1548)]

In its brief — summarized after the jump — Motorola reiterates its prior arguments to the Federal Circuit that Judge Posner erred in concluding that Motorola could not prove entitlement to either monetary or injunctive relief as compensation for Apple’s alleged infringement.  But Motorola does not just repeat the same arguments it made in its opening brief — it also attempts to address arguments raised by Apple concerning patent hold-up and the effect of the January 2013 FTC-Google consent decree.


Continue Reading Motorola tells Federal Circuit that its prior SEP licenses were not the result of hold-up, and that injunctions must be available against “intransigent infringers” of FRAND patents

As many commentators have noted, Judge Robart’s Microsoft-Motorola decision may provide a roadmap to courts and parties in other FRAND disputes.  Not surprisingly, Apple recently brought the decision to the attention of both the Federal Circuit (in the appeal of Judge Posner’s decision to dismiss Motorola’s SEP-related claim for damages and injunctive relief) and the…

Last Friday, May 10, 2013, in CLS Bank v. Alice Corp., No. 2011-1301, the Federal Circuit (en banc) issued a very divided decision in which a majority of the court affirmed that method, computer-readable medium and system patent claims on a computer-implemented invention were not patent eligible under § 101, but there was no majority consensus on the rationale as to why those claims were not patentable subject matter.  As a result, this en banc decision has no precedential value beyond the specific determination of patent eligibility for the particular claims at issue.  The fractured nature of the decision—and even intimations by judges on the court—indicate that this case may be primed for Supreme Court review.

This 135-page decision has seven separate opinions, summarized below.  A few top-level points may be gleaned from them:


Continue Reading Patent Alert: En banc Federal Circuit indecisive on patent eligibility of computer-implemented inventions (CLS v. Alice)

In a post yesterday, we discussed Nokia’s amicus brief submitted “in support of neither party” in the Apple-Motorola FRAND Federal Circuit appeal (Judge Posner edition).  The amicus brief recently filed by BlackBerry (formerly Research In Motion) is now public, and it is very similar to Nokia’s — at least when it comes to the issue of the availability of injunctive relief.  While not expressly supporting Motorola, BlackBerry echoes Motorola’s (as well as Nokia’s) argument that injunction relief should not be categorically precluded for FRAND-encumbered standard-essential patents.

[2013.05.07 BlackBerry Amicus Brief]

Coincidentally, BlackBerry also now finds itself on the receiving end of a new patent infringement complaint from Canadian non-practicing entity Wi-LAN, which is based on BlackBerry’s alleged infringement of a patent that Wi-LAN claims is essential to the ETSI 3GPP Long-Term Evolution (LTE) telecommunications standard.


Continue Reading BlackBerry files amicus brief supporting availability of SEP injunctions in Fed Circuit FRAND appeal (and also gets sued by Wi-LAN for LTE patent infringement)

CAFCEarlier this week, both Nokia and BlackBerry (formerly Research In Motion) were both granted leave to file amicus briefs with the Federal Circuit in the Apple v. Motorola appeal of Judge Posner’s June 2012 decision to dismiss the parties’ respective infringement claims.  BlackBerry’s brief is still confidential, but Nokia’s is now publicly available.

[2013.05.06 Nokia Amicus Brief]

While Nokia’s amicus brief is styled as being “in support of neither party,” it’s clear that Motorola should be the one happy here — Nokia asks the Federal Circuit to reverse Judge Posner’s decisions relating to Motorola’s standard-essential patents at issue, both with respect to damages and injunctive relief.  Nokia claims that Judge Posner’s ruling (1) creates a bright line rule against injunctions that violates Supreme Court precedent, and (2) unnecessarily devalues standard-essential patents by mandating that any damages be based on the smallest salable unit, which runs contrary to industry practices in SEP licensing.  A summary is after the jump.


Continue Reading Nokia amicus brief urges Federal Circuit to reverse Judge Posner’s standard-essential patent rulings

The district court in the Microsoft-Motorola RAND breach of contract case has already decided some unique issues of first impression, and will take on some more in the next phase of the case.  And if the parties don’t settle, an appeal is likely to follow.  This raises an interesting question, one that doesn’t necessarily have a clear answer — which appellate court would have jurisdiction over an appeal of Judge Robart’s RAND-related rulings?

The Western District of Washington sits within the 9th Circuit Court of Appeals (which, as noted below, has already heard an interlocutory appeal in this case).  But as you may know, in order to preserve uniformity in patent law, the U.S. Court of Appeals for Federal Circuit in Washington, DC is the court designated by Congress as the appeals court with exclusive jurisdiction for nearly all patent cases.  The Microsoft-Motorola case (at least the part which has garnered the most attention) involves a breach of contract issue relating to patents, standard-setting, and patent licensing issues.  So, which is it — the 9th Circuit or the Fed Circuit?

Brace yourselves – this will take a couple thousand words.


Continue Reading Which appeals court has appellate jurisdiction over the Microsoft-Motorola RAND case?

CAFCWe’ve got an update from the Apple-Motorola Federal Circuit FRAND jurisdictional dispute.  Today, the U.S. Court of Appeals for the Federal Circuit denied Motorola’s motion to dismiss Apple’s FRAND appeal (or transfer the case to the 7th Circuit).  For a recap on the issues surrounding this motion and the Apple-Motorola FRAND appeal (this one from…

Much of the activity and attention in the standard-essential patent world over the last few days has been focused on Judge James L. Robart’s groundbreaking decision in the Microsoft-Motorola RAND breach of contract case.  But that wasn’t the only RAND-related bit of news happening this past Thursday — that same day, in the Federal Circuit, Apple filed its response to Motorola’s appeal of Judge Posner’s decision to deny both damages and injunctive relief to Motorola in a case involving Apple’s alleged infringement of Motorola standard-essential patents.

Due to the fact that the Federal Circuit has consolidated appeals by both parties, Apple’s brief is technically both a response brief and a reply brief — but we will only deal with the SEP-specific issues here.  In the brief, which we’ll delve into after the jump, Apple urges the Federal Circuit to uphold Judge Posner’s findings that, even if infringement could be proven: (1) Motorola failed to introduce a cognizable damages theory for infringement of the SEPs at issue; and (2) Motorola could not show entitlement to injunctive relief for its FRAND-encumbered patents.

Link: [Apple April 25, 2013 Appellate Brief]Continue Reading Apple asks Federal Circuit to affirm Judge Posner’s denial of injunctive relief and damages for Motorola FRAND-pledged standard-essential patents

(Note: the subject matter of this post is a bit off-topic for this blog, but with all of the attention being paid to non-meritorious patent lawsuits and potential solutions, we thought this warranted mentioning.)

Patent litigation, like most litigation in this country, is generally controlled by the “American Rule” — the general rule that each party pays its own litigation-related costs and attorneys’ fees.  This stands in contrast to the rules in other countries such as England, where the losing party generally pays the other’s attorneys’ fees.  There are exceptions to the American Rule in various jurisdictions and types of litigations, including the patent-related provision in 35 U.S.C. § 285.

Section 285 provides that “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.”  However, it’s well-known that courts rarely award fees under Section 285 except in the most egregious circumstances (in fact, we recently posted a patent alert about a denial of fees).  Under current Federal Circuit precedent, cases are only deemed exceptional if there has been litigation misconduct or fraud in securing the patent, or if an infringer’s claim is both objectively baseless and brought in subjective bad faith.  See Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1308 (Fed. Cir. 2012).

In a recent petition for certiorari, Octane Fitness LLC has asked the U.S. Supreme Court to overturn this precedent and make it easier for prevailing patent infringement defendants to recover attorneys’ fees from infringement plaintiffs.
Continue Reading Is Section 285’s “exceptional case” requirement too exceptionally hard to satisfy?

Chrimar Systems (also known as CMS Technologies) is a non-practicing entity that owns patents that it claims are essential to IEEE Power-over-Ethernet technology — amendments 802.3af and 802.3at to the IEEE 802.3 Ethernet standard.  Chrimar has litigated several cases throughout the years based on these patents, including a (now-terminated) ITC case (Inv. No. 337-TA-817).  Chrimar’s website lists several licensees for its Power-over-Ethernet patents, as well.

But now it looks like Chrimar’s standard-essential portfolio just got a little bit smaller.  Yesterday, in Chrimar Systems v. Foundry Networks (now Brocade Communications Systems), the Federal Circuit affirmed a lower court ruling that had invalidated claims 14 and 17 of U.S. Patent No. 5,406,260.  
Continue Reading Chrimar Systems’ Power-over-Ethernet claims found invalid on appeal