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In Interdigital v. ITC  (August 1, 2012), a divided court held that a patent licensing program satisfies the domestic industry requirement at the International Trade Commission.

Interdigital makes money by licensing its patents.  It manufactures nothing.

Nokia manufactures cell phones. Remember Nokia cell phones?

A Nokia Cell Phone

A Nokia Cell Phone

A Passenger Pigeon

A Passenger Pigeon

 

InterDigital filed a complaint with the ITC in 2007 asserting that Nokia had violated section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, by importing Wide-band CDMA handsets that infringed two Interdigital patents. The patents focus on apparatus and methods for controlling transmission power during the “handshake” portion of a wireless cellular communication, which is the portion of the communication in which a cellphone establishes contact with a cellular base station in order to initiate a cellphone call. But Interdigital could only get an exclusion order if it showed that it was protecting a “domestic industry” in the United States. Nokia argued that Inter-Digital’s patent licensing activities did not satisfy the “domestic industry” requirement of section 337, 19 U.S.C. § 1337(a)(2) and (3). Continue reading →

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First, it’s worth saying that Newegg Inc. is a tremendously cool company. If I’m ever buying a computer from someone who isn’t Apple, I’m thinking Newegg gets by business.

The General Counsel of Newegg has made great headlines for his aggressive position on nonpracticing entities – saying, basically, we won’t ever ever ever settle. Take, for example, his interview with ars technical:

they pop up and say, “Hello, surprise! Give us your money or we will shut you down!” Screw them. Seriously, screw them. You can quote me on that.

Good stuff.

Of course, it’s one thing to take a bold stand. It’s another entirely to take a bold stand and win.

Yet that’s just what Newegg did in the Federal Circuit’s opinion in Soverain Software v. Newegg Inc.   Continue reading →

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Can a plaintiff amend its infringement contentions after losing on summary judgment?  No, said the Federal Circuit in Parallel Networks v. Abercrombie et al. (January 16, 2013).

Parallel asserted patent claims directed to an applet that was “dynamically generated” by a server and sent in response to a client request.

Applet Bite

The trial court construed a “dynamically generated” applet to be “constructed at the server, by combining the requisite functionality with the necessary data, at the time of, and in response to the client request.” In other words, the claimed applet must arrive at the client ready for action, without having to fetch anything subsequently to do its job.

This is an applet that has to bring its own beer to the party.

The Federal Circuit affirmed the district court’s claim construction. It affirmed the lower court’s finding of non-infringement, noting that Parallel conceded that, for each of the accused websites, “[i]t is undisputed that the client device must receive both the associated functional code and data to execute the applet.” Parallel had also conceded that each of the accused instrumentalities is missing at least one portion of the functional code or data when the applet is transferred to the client because the applet includes only a link. The federal circuit held that those admissions doom Parallel’s claims because we construe the asserted claims to require that the applet be executable or operable when it is generated and before it is first transmitted to the client, which means it must include both the particularized data and the functionality. The court held that because the accused websites do not contain every claim limitation, they do not literally infringe. Continue reading →

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A split panel today upheld key claims in a patent for those cardboard box things that keep cold beverages handy in the refrigerator.

Graphic Packaging obtained a patent with broad claims directed towards fancy refrigerator boxes for drink cans in 2004.   But rival packagers were not impressed.  Apparently, people have been putting cans in boxes for many years now.  And it turns out the PTO issued mighty similar patents in the past, like this one from 1963.

sodapop2

So rival box maker C.W. Zumbiel challenged Graphic’s patent in a PTO reexamination proceeding, arguing the claimed inventions were obvious given the plethora of prior art on putting drinks in boxes.

The PTO Board ultimately invalidated the patent’s broad independent claims, finding they were obvious in light of  prior similar patents, but upheld the validity of narrower dependent claims that required the tear line for opening the box be “located between the first and second containers.”

On appeal, the federal circuit upheld the PTO’s decision in both respects, over a peeved dissent from Judge Prost. Continue reading →

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Roger Hall designed the “Tote Towel” – a long towel with zippered pockets to hold keys and cell phones and such while you work out.

In early 2009, while a design patent application for the Tote Towel was pending, Mr. Hall met with Bed, Bath & Beyond to see if they would sell his Tote Towel.  Mr. Hall gave towel samples to Bed, Bath & Beyond to show them how great the towel was.  Bed, Bath & Beyond apparently liked the towels.  So they stole the idea and made cheap copies of the towels in Pakistan, cutting Mr. Hall out of the loop.

Bed Bath photo 2

Mr. Hall, not surprisingly, is really upset about all this.  He sued Bed, Bath and Beyond in the Southern District of New York, bringing claims for design patent infringement, unfair competition in violation of the Lanham Act, and New York state law claims for deceptive trade practices and unjust enrichment.

Mr. Hall’s complaint was lengthy and apparently pretty darn detailed.   But the District Court dismissed all Mr. Hall’s claims for a variety of perceived inadequacies in the pleading.

The Federal Circuit reversed the dismissal of all of the claims against Bed, Bath & Beyond (the dismissal of claims against Bed, Bath & Beyond executive Farley Nachemin was affirmed, based on a failure to plead facts supporting piercing the corporate veil). Continue reading →