Author Archive | Bryan Hart

No Attorney Fees after Dismissal for Lack of Patent-Eligibility

Until the law defining patentable subject matter under § 101 gains clarity, don’t expect attorney fees for cases dismissed under § 101.  And if a court denies your motion before the opposing party even responds, that’s a sign you may have pushed too far. In West View Research v. BMW, No. 14-CV-2670-CAB (WVG) (S.D. Cal. […]

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Judge Robinson Revisits IPR Estoppel, Seeking Federal Circuit Clarification

A district court recently reaffirmed its ruling that statutory estoppel does not apply to grounds of invalidity that could have been included in a petition for an inter partes review but weren’t, clearing the way for the defendant to raise those grounds of invalidity against the patent at trial. Intellectual Ventures I LLC et al. […]

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New Day, Different Alice Ruling: Youtoo v. Twitter and F5 v. Radware

In two recent § 101 orders on motions to dismiss, two district courts demonstrated how inconsistent patent-eligibility jurisprudence remains. The courts faced claims of similar complexity, similar subject matter, and similar reliance on software; sat in the same procedural posture; used the same number of pages of analysis (five); and reached opposite conclusions. Youtoo Technologies […]

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Patent Claim Construction Lessons, or Not, from Indacon v. Facebook

When a case goes against the patentee on the issue of claim construction, one wonders whether different actions by patent prosecution counsel could have changed the result. The prosecutor uniquely influences claim construction, a legal determination that is unlike the question of infringement, which depends on the accused infringer’s products, and validity, which often turns […]

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One-Court Alice Backlash: Delaware’s Judge Robinson, Critical of Recent Trends, Upholds Software Patents in Three Cases

Judge Sue Robinson—the longest-serving judge in the District of Delaware, among the most popular patent venues in the nation—bucked the trend in patent-eligibility law. Recently, she issued three opinions in three cases addressing software-related patents under 35 U.S.C. § 101. Improved Search LLC v. AOL, Inc., Civ. No. 15-262-SLR (D. Del. Mar. 22, 2016); Intellectual Ventures […]

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Intervening Rights Do Not Protect Accused Patent Infringer Despite Amendment During Reexamination

The Federal Circuit recently provided a refresher lesson about intervening rights, particularly about what sources of evidence the court may find persuasive, in Convolve, Inc. et al. v. Compaq Computer Corp. et al., No. 2014-1732 (Fed. Cir. Feb. 10, 2016). At least in this case, the court weighed evidence from the original examination of the […]

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Exciting Technology (and new Intellectual Property?) at the 2016 North American International Auto Show

We saw a lot of interesting technology – and, who knows, maybe some new intellectual property – at this year’s North American International Auto Show, the annual gathering of the automotive industry at Cobo Hall in downtown Detroit, a short distance from our office. As intellectual property attorneys we are always interested in new technology, so […]

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