Federal Circuit calls a re-do, and then doubles down on misplaced 112 analysis in AAM v. Neapco

Sigh. On July 31, 2020, the Federal Circuit declined to hear AAM v. Neapco en banc (AAM v. Neapco denial of en banc hearing, but granted a petition for a panel rehearing, which didn’t mean “rehearing” so much as “we’ll add a few lines to our original opinion that actually manage to make things worse.”  […]

Reference to ASTM number not specific enough for the Federal Circuit

Pacific Coast Building v CertainTeed Gypsum, Appeal 2019-1524, Decided June 30, 2020. Pacific Coast Building Products Inc. sued CertainTeed Gypsum, Inc and Saint-Gobain Performance Plastics Corp. (collectively CertainTeed) for patent infringement of claim 21 of US Patent No. 9,388,568 (the “‘568 patent”) in the Northern District of California.  The ‘568 patent is directed to a […]

Federal Circuit extends Arthrex to ex parte appeals

Boloro Global, 2019-2349, -2351, -2353, July 7, 2020 Boloro Global (“Boloro”) appealed three decisions from the PTAB affirming the examiner’s rejection of Boloro’s three patent applications – 14/222613, 14/222615 and 14/222616 – under section 101 to the CAFC in August of 2019. The CAFC subsequently decided Arthrex, holding that APJ’s were not constitutionally appointed. In […]

Federal Circuit affirms PTAB’s use of “common sense” in invalidating BE Aerospace patents directed to airplane lavs

BE Aerospace v C&DZodiac, 2019-1935, 2019-1936, Fed. Cir. June 26, 2020 BE Aerospace (“BEA”) owns US Patent Nos. US9073641 and US9440742 directed to space-saving designs for airport lavatories.  Specifically, the challenged patents both claim a wall portion including first and second recesses to accommodate the aft support legs of an airline seat, and the seat […]

Firebug runs into “one big world full of no” at the Federal Circuit

Firebug v Stride Rite Appeal Nos. 2019-1622, 2019-1623, Fed. Cir. June 25, 2020 Shoes by Firebug (“Firebug”) owns US Patent Nos. 8,992,038 (“‘038 patent”) and 9,301,574 (“‘574 patent”), directed to improved illumination systems for footwear.  Specifically, both patents describe footwear comprising a sole and three-layer upper – including a liner, interfacing layer and light diffusing […]

Federal Circuit provides illustrative application of InTouch Techs

In support of the proposition that “The obviousness inquiry does not merely ask whether a skilled artisan could combine the references, but instead asks whether “they would have been motivated to do so.”  InTouch Techs., Inc. v. VGO Commc’ns, Inc., 751 F.3d 1327, 1352 (Fed. Cir. 2014).  I have often used Belden Inc. v Berk-Tek […]

While declining to adopt a “bright-line test that mental processes capable of being performed by fish are not patent eligible”

The Federal Circuit nonetheless determines that claims directed to a method of fishing are directed to an abstract idea.  In re Rudy, Appeal No. 2019-2301, Fed. Cir., April 24, 2020. But kudos to the pro se inventor’s persistence.  The application at issue – USSN 07/425,360 – was filed in October 21, 1989 and has thus […]

“Configured to” is not indefinite, even if subject to multiple interpretations

So held the Federal Circuit in Nevro Corp. v. Boston Scientific, Appeal Nos. 2018-2220, 2018-2349, Fed. Cir., April 9, 2020, while similarly throwing a lifeline to “parathesia-free” (rejecting BSC’s argument that the claims are indefinite because infringement can only be determined after using the device or performing the method), “means for generating” and “therapy signal”. […]

Federal Circuit reverses PTAB, citing “erroneous interpretation” of claim language and “misunderstanding” of precedent

Tech Con Prod v Light Science, Appeal No. 2019-1361, Fed. Cir. April 8, 2020. Lighting Science Group Corp. (“LSG”) owns US patent no. 8,201,968 (the “‘968 patent”) directed to retrofit LED light fixtures that accommodate a variety of housing shapes and sizes, while yet maintaining a low profile when installed.  To this end, the claim […]

License drafters beware – patents may be subject to implied license if grandparents and uncles are expressly licensed

Cheetah v AT&T, Appeal No. 2019-1264, Fed. Cir., February 6, 2020. Cheetah Omni LLC (“Cheetah”) sued AT&T for patent infringement, and Ciena Communications intervened, as a manufacturer and supplier of allegedly infringing parts to AT&T.  AT&T and Ciena filed for summary judgement based on the allegation that the patent allegedly infringed was part of a […]