SCOTUS takes on new
The Supreme Court this week
heard two trade mark cases, first
B&B Hardware v Hargis and, second
Hana Financial v Hana Bank, but will soon be turning its
attention back to patents.
Today it took on a new IP case,
granting cert in Commil USA v Cisco Systems. However,
the Court did not grant cert to all questions presented. It
said: "The petition for a writ of certiorari is granted
limited to Question 1 presented by the petition. Justice Breyer
took no part in the consideration or decision of this
Commil has asked the Court to
consider: "(1) Whether the Federal Circuit erred in holding
that a defendant's belief that a patent is invalid is a defence
to induced infringement under 35 USC § 271(b); and (2)
whether the Federal Circuit erred in holding that Global-Tech
Appliances, Inc v SEB SA required retrial on the issue of
intent under 35 USC § 271(b) where the jury (A) found the
defendant had actual knowledge of the patent and (B) was
instructed that "[i]nducing third-party infringement cannot
The Federal Circuit
had found in June 2013 that the district court gave the
jury a legally erroneous instruction with respect to indirect
infringement, and also that Cisco’s evidence of a
good-faith belief of invalidity may negate the requisite intent
for induced infringement. However, it also found that the
district court did not err in granting a partial new trial.
Cisco Systems had appealed from
the final judgment of the United States District Court for the
Eastern District of Texas, which was based on the findings of
two separate jury verdicts finding that: Cisco directly and
indirectly infringed specified claims of Commil’s
6,430,395 patent; the specified claims of the ’395
patent are not invalid as indefinite, for lack of enablement,
or as lacking adequate written description; and that Cisco was
liable for $63,791,153 in damages as well as pre-judgment
interest and costs.
The ’395 patent
relates to a method of providing faster and more reliable
handoffs of mobile devices from one base station to another as
a mobile device moves throughout a network area.
Cisco accuses Arista of
Another story involving Cisco
emerged this week, when
it filed a lawsuit against Arista Networks accusing it of
both copyright and patent infringement.
The case was filed in the
Federal District Court in Northern California, and asks for
Arista to withdraw all its main products from the market. Cisco
will also likely seek damages.
"We are not a litigious
company," The New York Times
quoted Mark Chandler, the compay’s general
counsel, as saying. "This was so blatant."
Arista’s chief executive, said in a statement: "I
am disappointed at Cisco’s tactics."
The case involves 14 patents, as
well as Cisco claiming that Arista’s command line
interface, a way of operating its switch, includes more than
500 of the commands used in Cisco gear. Cisco believes Arista
did this so it could win over Cisco customers.
This week saw pushback on the
calls for patent reform in the US.
At a discussion put on by the
Federalist Society for Law and Public Policy Studies, law
professor Adam Mossoff said that was no "explosion" in patent
lawsuits. Former Chief Judge of the Federal Circuit Paul Michel
described the debate around patent reform as "juvenile", adding
that reform advocates use terms like "trolls" and "patent
quoted Michel as saying the push for patent reform comes
from "massive PR and what I would characterise as
And today, Drinker Biddle &
Reath partner Bob Stoll
wrote an op-ed in The Hill urging caution.
"Even if the prospects for
patent reform seem to have brightened, there is an increasing
amount of data that suggest the need for aggressive
congressional action has waned. As we look toward the next
Congress, it would be wise to take time to fully consider these
developments. When it comes to patent reform, it is critically
important that Congress deliver solutions using a scalpel
instead of a buzz saw."
Stoll referenced the effect of
Supreme Court rulings this year, as well as the Federal Circuit
"fixing many of the potholes in the patent superhighway with
their recent rulings".
This week there was also a call
for caution in the rush to pass patent reform from
lack of application
A new study has revealed that
all Canadian provinces have seen a fall in patent application
rates in the past decade.
CBC reports that a CD Howe Institute study reveals that
Alberta and Ontario outperform the national average for
domestic patent applications per capita. The think tank said
that Canadians filed about 25,000 patents a year in the
mid-1990s, which increased to about 40,000 in 2007.
However, this figure has now
fallen to below 35,000 a year.
The study estimated that up to
40% of Canadian patents are for something the applicant has no
intention of using, instead intending to stop somebody else
Nintendo in the news
Nintendo featured in a couple of IP stories this week.
It resolved its patent disputes with Koninklijke Philips
agreed a patent licence agreement with the firm. The patent
infringement proceedings that Philips had initiated in Germany,
the UK, France and the USA against Nintendo’s Wii,
Wii U and DS handheld products have ended. Both companies will
cross-license portions of each company’s patent
It was also revealed that
Nintendo is seeking a patent for Game Boy, Game Boy Color
and Game Boy Advanced emulators. The patent covers "Hand-Held
Video Game Platform emulation". It was filed in June and
published by the USPTO on November 27. The application is
interesting because it stokes rumours that Nintendo will allow
its titles on non-Nintendo hardware for the first time. But, as
CNET noted, this latest story probably will not amount to
Also on the blog this week:
Business method patent issuance has plummeted
Don't miss our US IP events next week
Guest post: Has UK copyright reform gone far
Progress on UPC Rules highlights inertia on
And in our news and analysis:
Don’t be afraid of
Andean Court can rule on questions from IP
Sony’s Toshimoto Mitomo: IP
monetisation as marketing - interview
Ulmer & Berne hires patent attorney in
Novak Druce adds three litigators in
ASIPI in Mexico City: day 3 report
ASIPI in Mexico City: day 2 report
ASIPI in Mexico City: day 1 report
UK clarifies Patent Box changes
PTAB appeals at Federal Circuit to test
boundaries of institution
Shook Hardy & Bacon adds two from
Compensation for IP infringement in