Jawbone has sued rival fitness tracking company Fitbit for
. The suit, filed by Jawbone’s parent AliphCom,
was filed in the Northern District of California.
It accuses Fitbit of infringing a patent for "a wellness
application using data from a data-capable band". Fitbit is
doing an initial public offering this month in which it is
seeking to raise up to $478 million,
according to Bloomberg
. The complaint said that Jawbone would also ask the ITC to
Jawbone in May sued Fitbit
in a different lawsuit
alleging it stole its trade secrets and intellectual property
by luring its employees.
Jawbone said it had invested more than $100 million on R&D
for its tracking technology and has registered hundreds of
patents. Patinformatics did
an analysis of Jawbone’s patents
and found 189 unique applications consisting of 15 Chinese
patent applications, 77 pending, or abandoned US applications,
97 granted US patents, including 11 design patents.
The Octane effect
Ars Technica had
an interesting article on Ray Niro
this week, which described him as one of the lawyers who
pioneered contingent-fee patent litigation. Niro is apparently
considering exiting the business.
Ars Technica said that Niro could be viewed as one of the
original "patent trolls" in a sense, having worked for
TechSearch, which brought patents and sued companies for
infringement in the late 1990s.
But Niro this week
told Crain’s Chicago Business
: "The stand-alone patent case is dead on arrival, and I don't
think we're unique."
Niro said that changes such as the Octane Fitness decision
loosening the standard for fee shifting have hurt the model.
Niro’s from was ordered to $4.1 million in January
after losing a case, which he said was a "wake-up
"I can take it once, twice, but am I going to take it three or
four times? No. Why should I?" he told
Kyle Bass –
Hedge fund manager Kyle Bass has been vilified by
pharmaceutical and biotech companies for his use of PTAB
proceedings to challenge their patents. But one blog post this
week suggested pharma and bio companies should instead thank
Oblon’s Scott McKeown
on the Patents Post-Grant blog said: "The fact of the
matter is Kyle Bass has been a boon to Bio/Pharma lobbyists.
His stunts (and that's exactly what they are) allow the debate
to turn away from patent quality to one of simple
McKeown said that the changes to PTAB proceedings now being
discussed in Congress go well beyond that which would be
necessary to tackle the perceived Bass problem. He added that
the wide range of provisions to water down proceedings would
not have been possible without having Bass as a bogey man.
"The inconvenient truth is Bio/Pharma has always been wary
of opposition style proceedings at the PTO, and would rather
not deal with them at all. And, without Mr. Bass, Bio/Pharma
could never sell its pro-patent agenda in such a fervent,
anti-troll environment," said McKeown.
He noted the contradiction of Congress looking to water down
PTAB proceedings at the same time as plaintiff attorneys and
NPEs complain about the impact they have had on their business
model. He added that IP Nav is partnered with Bass, which he
says has allowed the patent monetization company to undermine
the system that has hurt its model. "Congress is being played
like a fiddle," he said.
Questioning the kill rate
piece on Poltico by professor Colleen Chien of the Santa
Clara University School of Law questioned the figures that
people bandy around about the Patent Trial and Appeal Board.
She wrote that a common figure given during debate over the
PATENT Act is that 84% of reviewed patents have their claims
However, Chien said the figure is actually that the USPTO
recently reported that 84% of patent challenges that go through
the full review process have at least one claim rendered
unpatentable. She said that people need to keep in mind that
the USPTO only reviewed 65% of the claims provided to it, and
that half of these are settled or dropped by the parties before
"Rejecting a claim doesn’t mean that the
overall patent is unenforceable: each individual patent could
have dozens, or hundreds of claims," wrote Chien. "If you
follow the numbers carefully, you realise that a more accurate
way to think about it is that the USPTO has ended up
invalidating about 25% of the claims submitted to it for
review. That’s a long way from 84%."
Circuit calls time on MZ Berger
The Federal Circuit has upheld a Trademark Trial And Appeal
Board ruling that watchmaker MZ Berger did not give sufficient
evidence to show a "bona fide intent" to use the iWATCH mark
and could not register it,
reports Finnegan’s Incontestable Blog.
Swatch had filed an opposition against the application to
register the iWATCH mark in 2008, alleging that MZ Berger did
not intend to use the mark. The TTAB held that
Berger’s trade mark search conducted days before
filing, an internal email summarizing a
paralegal’s discussion with the examining
attorney, and drawings of the proposed product did not
demonstrate bona fide intent to use the mark.
"On appeal, the Federal Circuit agreed with the
TTAB’s findings, and confirmed that an opposer may
challenge an application by alleging that the applicant lacks a
bona fide intent to use the mark," said Finegan. "The TTAB has
long held that this is the case, but this precedential decision
marks the first time the Federal Circuit has done so."
Apple was not involved in the proceeding.
Also on the blog this week:
PTAB moves squarely into US lawmakers’ sights in
rewritten PATENT Act
Bass files 16th IPR petition as opposition continues to
Making sense of the UPC fee proposals
IPRs and Section 101 to take centre stage at BIO
In our news and analysis this week:
reports to US House of Representatives
after EPO and MEPs discuss Unitary Patent
countries ask for more time for TRIPs
harmonisation plans make slow progress
12% of litigated patents since 2012 challenged at the
Kering v Alibaba sounds the alarm on China’s
May PTAB Data – Three PGRs filed in a busy
Intellectual Ventures II files third and fourth lawsuits of
In-house counsel share patent practice tips