Biotechnology company Glycosyn sued German company Jennewein, accusing it of infringing U.S. Patent 9,453,230 by manufacture and sale and/or importation into the United States of human milk oligosaccharide products produced by engineered E. coli bacterial strain. These products, which are believed to treat or prevent infections in infants, are intended to be added to formula strains to provide their benefits to infants not being breast-fed. Jennewein sought and obtained FDA approval to bring its products, sold under the name “Mum’s Sweet Secret,” into the country in November 2015, while the ‘230 patent was still pending.
Judge Sorokin sua sponte bifurcated Rolling Optic’s inequitable conduct defense from the impending jury trial, noting that submitting it to the jury would require consideration of evidence not relevant to anything else before the jury. Judge Sorokin apparently believes the jury will have more than enough on its hands in dealing with the remaining issues in the case, which involves patents covering micro-optic foils that produce a 3-D holographic image, as he also indicated that, while he would not automatically exclude jurors lacking a certain level of education, he would inquire as to potential jurors’ education and interest in learning about the technology. The bifurcation order is Judge Sorokin’s second sua sponte decision in this case; in January, he sua sponte granted summary judgment of definiteness in favor of Crane Security.
Realtime accuses Adobe of infringing seven Realtime patents relating to compression and decompression of audio and video files. Among the accused products are Adobe Media Encoder products, Adobe Premier Pro products, Adobe Flash products, and Adobe After Effects products. Realtime asserts direct, contributory and induced infringement.
Judge Wolf denied defendants’ motion to dismiss Janssen’s counterclaim of violation of 35 U.S.C. § 271(f), finding that the counterclaim pled all of the necessary elements of such a claim. Janssen did not bring this claim in its original complaint, instead bringing it in its answer to the defendants’ counterclaim seeking a declaration of non-infringement and invalidity. Judge Wolf found the counterclaim to be of right to Janssen as a compulsory counterclaim, as opposed to an amended pleading that would require leave of court.
Judge Woodlock ruled in Exergen’s favor on the issue of inequitable conduct in connection with its 7,787,938 patent, which relates to measuring a person’s internal temperature externally via the temporal artery. Judge Woodlock had previously found the asserted claims invalid for claiming unpatentable subject matter; following this, both parties initially pressed the court to address inequitable conduct on summary judgment, although Exergen subsequently sought to have the inequitable conduct claims dismissed as moot. Judge Woodlock examined Federal Circuit caselaw on the issue of mootness of inequitable conduct counterclaims on patents that had already been deemed invalid, and determined that such claims are not moot where attorney’s fees are being sought based on the alleged inequitable conduct. Looking to the allegations of inequitable conduct, Judge Woodlock determined that Brooklands had failed to show by clear and convincing evidence that any of the alleged omissions or misrepresentations demonstrated an intent to deceive the PTO. He determined that any inequitable conduct relating to references that were not disclosed during prosecution of a parent application was cured by being affirmatively disclosed during the prosecution of the ‘938 patent. Also, with respect to allegations that the prosecuting attorney had misrepresented positions taken by Exergen as to the claim scope of other Exergen patents in a different litigation, Judge Woodlock found this to be mere attorney argument that did not raise to an intent to deceive because all of the litigation documents were put before the examiner, who is free to reach his own conclusions as to their import.
Hybrid Audio accuses home recording equipment company Foster of infringing RE40,281, a reissue of U.S. 6,252,909. The ‘281 Patent claims priority to an application filed on September 12, 1992; Hybrid claims to have sent letters to Foster in January 2012, providing notice of its belief that Foster infringed the patent. Shortly thereafter, reexamination of the patent was sought and granted through a different lawsuit. All of the claims were confirmed via a reexamination certificate that issued on December 1, 2015. The patent expired on September 21, 2012, while reexamination was pending; Hybrid contends, however, that it was constrained from seeking royalties or filing lawsuits while the reexamination was pending; additionally, Hybrid asserts that the entire period from the notice letter to the expiration of the patent falls within the six-year limitation on patent damages set forth in 35 U.S.C. § 286. Hybrid seeks RAND royalties for Foster’s use of MP3 technology, at least a portion of which is asserted to be covered by the ‘281 patent, in its Fostex FR-2 and UR-2 products. Hybrid further seeks a declaration that the case is exceptional and an award of attorney’s fees.
Judge Stearns construed a number of claim terms in this dispute in which Egenera accused Cisco of infringing U.S. Patent 7,231,430 (Egenera had previously voluntarily dismissed claims relating to a second patent, to avoid the case being stayed pending inter partes review of the second patent). The technology at issue relates to the creation of a virtual processing area network that simulates a network of computer processors. Judge Steans rejected Egenera’s proposed construction of “processor” as the “processing node” described in the specification, because the specification does not clearly set forth a definition of the term that is different from its plain and ordinary meaning. He also rejected Egenera’s proposed construction of “logic” as “software, firmware, circuitry, or some combination thereof.” Instead, he found “logic” as used in the claims to refer to the abstract concept of computer operations generally that perform the function recited after the term, and thus to be in means-plus-function format. Having so determined, however, he disagreed with Cisco that the terms were indefinite, finding sufficient structure in the specification for the various “logic” functions recited in the claims. Finally, he found in Egenera’s favor on “internal communication network,” determining that even though the network is described as emulating Ethernet functionality, the claimed network is not limited to a non-Ethernet physical network.