(Informal 1-2 line summaries, which certainly should not be relied upon for legal or other research purposes)
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- CAFC affirms the Board's IPR obviousness determination for this "peer-to-peer location-based services for mobile data processing systems" patent. Reviewing the spec and file history, CAFC agrees that the "“transmitting” limitation does not preclude transmission via an intermediary" and finds similar support for construing "beacon" as :a simple periodic broadcast." CAFC concludes by agreeing that there's substantial evidence for the Board's obviousness analysis ("The Board
also cited Federal Circuit precedent that increased energy
efficiency may establish a motivation to combine.") and that Owner's objective indicia were unavailing ("We have noted that “the
mere existence” of licenses, alone, does not establish secondary considerations sufficient to overcome an obviousness finding").
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- CAFC reverses the Board's not unpatentable findings for patents involving "AC Light Emitting Diode and AC LED Drive Methods and Apparatus." Specifically, "[t]he dispute on appeal is only as to claim 2 and whether the Board erred in finding that the Deese prior art reference does not disclose “wherein the driver is configured to receive at least two different AC forward voltages.”" The Deese reference disables LEDs to preserve traffic light luminescence at the lower voltages available during brownouts. CAFC notes the open ended character of "forward voltage" in the claim ("In other words, if a driver receives voltage in excess of the forward voltage, the driver has still received the forward voltage — it has simply received excess voltage as well."). Since it's likewise undisputed that Deese's two LED configurations accommodate two different voltage levels, CAFC disagrees with the Board that "neither [Home Depot] nor [its expert] explain how the forward voltage of the LED array is received by the driver" in Deese as the record instead shows that "Deese’s driver is configured to receive at least three different forward voltages, though the driver may also receive voltages in excess of the minimum voltage required to turn on the LEDs" the last element being inapposite given the open "at least" character of the claim.
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- In this precedential decision, CAFC affirms a preliminary injunction denial on a biosimilar, agreeing with the DCT on the likelihood of success factor, focusing specifically upon "whether the asserted claims require that the ‘VEGF antagonist’ [i.e., aflibercept] and the ‘buffer’
be separate and distinct components of the claimed formulation" particularly under the precedent in Becton ("[t]here can be no literal infringement where a claim requires two separate structures and one such structure is missing from an accused [product]"). CAFC determines here that "claim 1 plainly recites a pharmaceutical formulation, comprising four separately listed components which include a “VEGF antagonist” and “a buffer.” . . . As we determined in Becton, the plain language of the claim therefore establishes a “clear implication” that the VEGF antagonist and buffer components are distinct components of the claimed formulation." Thus, "[i]n light of the foregoing, and given the undisputed fact
that Amgen’s ABP 938 product does not contain a buffer separate from the VEGF antagonist, there is at least a substantial question of noninfringement."
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- CAFC considers, and affirms, indefiniteness for patents involving "hydraulic fracturing equipment for hydrocarbon extraction", focusing on the term "the well at a high pressure." While Owner argues that "extrinsic evidence shows
“high pressure” is a common term in hydraulic fracturing," but CAFC agrees with the Board that there's too much ambiguity to be definite ("one expert testified that a
person of skill in the fracking industry would “definitely
think high pressure is 5,000 to 15,000,” while the other testified that “it’s agreed upon that 8,000 to 12,000 psi is high pressure,” but that it is not generally agreed upon that 5,000 psi is high pressure . . . The Board found that testimony to demonstrate a lack of any “clear boundaries for how an ordinarily skilled artisan would interpret ‘high pressure.’”’").
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- In this (very) short opinion, CAFC affirms this preliminary injunction "to enjoin Innova from promoting, marketing, advertising, selling, and offering for sale the accused product" (the claims directed to an "electrical test device having multi-meter functionality and being adapted to provide current sourcing to an electrical system for selective measurement of a plurality of parameters"). CAFC walks through the three preliminary injunction factors and finds support for each: regarding "1) reasonably likelihood of success" CAFC is lenient since the injunction will expire in a few months anyway; regarding "2) irreparable harm" "Power Probe proffered opinions from experts predicting that it would
suffer various immediate, irreparable injuries, including a
loss of market share and follow-on purchases, price erosion,
harm to goodwill and reputation, and workforce reduction"; and regarding 3) "whether the balance of hardships favors Power Probe over Innova" as "Innova had numerous other streams of revenue
apart from the accused product, the balance of hardships
favors Power Probe."
James Skelley is a solo practitioner based in Mountain View, California since 2015, focusing primarily upon technology transactions and intellectual property procurement. James' practice also serves as an "incubator" for new legal service technologies / methodologies and a "living example" of their application. To this end, James regularly partners with larger law firms and with his clients so as to improve the practice of intellectual property law.
- Utility / Design / PCT Patent Prosecution
- Open Source Diligence
- Technology Transactions (typically as a team)
- Litigation / Inter Partes Review Support (typically as a team)
- James tends NOT to handle low-volume trademark work (though referrals are available)
- USPTO - #59458 - 10/16/2006
- California - #257829 - 12/01/2008
- District Columbia - #1014986 - 08/05/2013
- James is available by email, 8x8 hangout, and in-person meetups in the Valley.
- Email is typically the best way to reach James.
- Machine Learning / Robotics
- Cryptograpy / Cryptocurrency / Smart Contracts
- Medical Device
- Computational Biology (primarily modeling and proteomics)
- Signal Processing (primarily wireless and compression)
- Quantum Physics (primarily semiconductor) / Electromagnetics (antennae, waveguides, etc.)
- Manufacturing / 3D Printing
- James tends NOT to handle pure chemistry applications (though referrals are available), however James HAS handled matters involving computational proteomics, cellular modeling, and diagnostic lab protocols
LawMux Bites are (very) short, one-page summaries of various legal concepts, cases, and technologies. As informal summaries, you certainly shouldn't rely upon them as legal advice / for business use, but they can help orient you if you're new to the subject matter.
