The Federal Circuit has vacated an $85 million Eastern
District of Texas award to SimpleAir for Google infringing
its patents through its Cloud Messenger services,
reports Ars Technica.
The Federal Circuit in
its opinion, written by Judge Wallach and joined by
Judges Moore and Reyna, determined the district court erred
in its constructions of "a data channel" and "whether said
devices are online or offline from a data channel
associated with each device", and concluded that no
reasonable jury could find infringement under the correct
Google had asserted the claim term "a data channel" is
indefinite under the Supreme Court’s Nautilus
v Biosig Instruments decision in 2014, or alternatively,
that Google did not infringe under the correct construction
of "a data channel". Google also challenged the district
court’s constructions of "transmission
gateway" and "parsing said data with parsers," its
application of the law of joint infringement, and the
SimpleAir had filed a second lawsuit against Google in
2014 seeking $100 million in damages, but the jury found
the patents in that case were not infringed.
Optis buys Unwired Planet
Optis UP Holdings
will acquire Unwired Planet LLC, including its patent
and trade mark assets and select EU employees. The parent
company Unwired Planet Inc has decided to evaluate its
strategic alternatives and focus the company on
Unwired Planet will receive $30 million in cash at the
closing of the transactions and up to an additional $10
million in cash on the second anniversary of the closing
of the transactions.
Unwired Planet expects the transaction to close in the
second or third quarter. It has received the consents
necessary to complete the transaction both from the
holders of its senior secured notes and from
Telefonaktiebolaget LM Ericsson.
The purchase agreement provides for termination by
Unwired Planet following payment of a $2 million fee to
Boris Teksler, chief executive officer of Unwired
Planet, said: "My team and I joined Unwired Planet 10
months ago, and in that time we have replaced a record of
losses with several litigation victories. However, after
assessing the company’s financial situation,
we felt it prudent to develop a range of alternatives for
our IP business."
Unwired Planet expects Teksler to step down as CEO,
and other IP members of the Unwired Planet team are
expected to depart from Unwired Planet in connection with
Unwired Planet is involved in a series of litigations
in the UK over wireless patents. In March, the UK
ruled Samsung and Huawei infringed a
standards-essential patent held by Unwired Planet.
This was the third verdict so far, following two patents
being invalidated in January and Samsung and Huawei
found to infringe another patent last November.
Burberry drops case against JC Penney
Burberry has dismissed its
trade mark case against JC Penney,
reports The Fashion Law. The UK fashion brand had
sued JC Penney in the Southern District of New York,
accusing it of selling products that infringed its iconic
"While the terms of the parties’
settlement are confidential, we do know that all of the
allegedly infringing goods have been removed from JC
Penney’s website," said The Fashion Law.
"From the outset, the retailer denied any liability, as
it held that the Levy Group, one of its New York
City-based apparel suppliers, which was also named as a
party in the suit, was responsible for indemnifying JC
Penney in case of any infringement actions."
JC Penney had
issued a statement that it is "fully indemnified by
the supplier, and therefore any damages awarded in the
case will be fully covered by the supplier." It added
that the suit will have "no financial impact" on
Complaints in the post-Form 18 era
The Patently-O blog has run
an analysis by Quinn Emanuel’s Leeron
Morad and Andrew Bramhall reviewing the impact of
the elimination of Form 18 on pleading direct
"Early indications from the few issued district
court decisions interpreting the amended Rules confirm
that the pleading standard for direct infringement
claims may indeed have changed," they noted.
Morad and Bramhall looked at two decisions applying
the amended rules that they said suggest plaintiffs
were right to be concerned about a heightened
requirement for pleading direct infringement.
In Raindance Techs v 10x Genomics, Judge Andrews of
the District of Delaware granted 10x
Genomics’ motion to dismiss claims of
infringement of seven patents. The 35 page complaint
would "almost certainly" have passed muster under Form
18, said the WilmerHale lawyers. The complaint also
identified representative claims for each patent and
the accused product. But Judge Andrews found the
Raindance complaint lacking, saying the "essential
factual allegations so not take up much space". The
judge also suggested 10x Genomics had not spent enough
time investigating the alleged infringing product and
had not attempted to relate the factual assertions with
any of the claims. Judge Andrews applied the
post-December 1 2015 direct infringement standard to
the amended complaint, despite the fact it was filed in
April 2015, "in the interest of justice".
In InCom v The Walt Disney Co in the Central
District of California, Judge Gutierrez denied
Disney’s motion to dismiss despite
applying the new standard. He found that InCom had done
enough by specifically identifying the
defendants’ products and "alleging that
they perform the same unique function as
plaintiff’s patented system". He did not
require InCom to identify any exemplary asserted claims
in its complaint.
They said these two cases suggest that "even under
the heightened 'plausibility’ standard, we
would not be surprised to see meaningful differences
emerge in the ways different districts – and
even individual judges within districts –
apply that standard to direct infringement
Led Zeppelin trial to proceed
Judge Gary Klausner of the Central District of
California has ordered a copyright trial over Led
Zeppelin’s 1971 song "Stairway to
Heaven" to proceed,
The judge believes the
song and 1967 instrumental "Taurus" by Spirit are
similar enough that a jury should decide whether
Robert Plant and Jimmy Page are liable for copyright
The lawsuit was bought by the trustees of Randy
Wolfe, the late guitarist in Spirit and composer of
Taurus. It is claimed the first two minutes of
Stairway to Heaven was inspired by Taurus. The two
bands toured together in 1968 and 1969.
The defendants claim the chord progressions are so
common they do not deserve copyright protection.
Klausner wrote: "While it is true that a
descending chromatic four-chord progression is a
common convention that abounds in the music industry,
the similarities here transcend this core structure.
What remains is a subjective assessment of the
'concept and feel' of two works ... a task no more
suitable for a judge than for a jury."
The judge dismissed claims against Led Zeppelin
bassist John Paul Jones and Warner Music. He also
said the trustee can only receive 50% of any damages,
as stipulated in a 1967 contract Wolfe signed.