September 2013 Vol. 17, No. 2 International Trade Appeals Apple Inc. v. International Trade Commission No. 2012-1338 (Fed. Cir. August 7, 2013) ................................................. 2 Ashley Furniture Industries, Inc. v. United States No. 2012-1196 (Fed. Cir. August 19, 2013) .......................................... 2 Itochu Building Products v. United StatesNo. 2013-1044 (Fed. Cir. August 19, 2013)....................................................... 3 Miscellaneous and Vaccine Appeals Carson v. Secretary of Health and Human Services No. 2010-5089 (Fed. Cir. August 28, 2013) ...................................... 4 Merit Systems Protection Board (MSPB) Appeals Gallo v. Department of Transportation, No. 2011-3094 (Fed. Cir. August. 5, 2013) .......................................................... 4 Gargiulo v. Department of Homeland Security, No. 2012-3157 (Fed. Cir. August. 16, 2013) ............................................ 5 Kaplan v. Conyers No. 2011-3207 (Fed. Cir. August. 20, 2013) ......................................................................................... 5 Patent and Trademark Appeals Cheese Systems, Inc. v. Tetra Pak Cheese & Powder Systems, Inc.No. 2012-1463, -1501 (Fed. Cir. August. 6, 2013) ..... 5 Aria Diagnostics, Inc. v. Sequenom, Inc. No. 2012-1531 (Fed. Cir. August. 9, 2013) ........................................................ 6 Skinmedica Inc. v. Histogen Inc. No. 2012-1560 (Fed. Cir. August 23, 2013) .................................................................... 6 Taurus IP, LLC v. DaimlerChrysler Corp. Nos. 2008-1462, -1463, -1464, -1465 (Fed. Cir. August. 9, 2013) ................... 7 Monolithic Power Systems, Inc., et al. v. O2 Micro International Ltd. No. 2012-1221 (Fed. Cir. August 13, 2013).......... 9 3M Innovative Properties Co., et al. v. Tredegar Corp. No. 2012-1241 (Fed. Cir. August 13, 2013) ............................... 10 Apple Inc. v. Samsung Electronics Co., Ltd., et al. Nos. 2012, 1600, 2013-1146 (Fed. Cir. August 23, 2013) ..................11 Hamilton Beach Brands, Inc. v. Sunbeam Products, Inc. No. 2012-1581 (Fed. Cir. August 14, 2013) ............................ 13 Aevoe Corp. v. AE Tech. Co. et al. No. 2012-1422 (Fed. Cir. August 29, 2013) ............................................................... 13 University of Utah v. Max-Planck-Gesellschaft Zur Forderung Der Wissenschaften E.V. et al. No. 2012-1540, -1541, -1661 (Fed. Cir. August 19, 2013) ..................................................................................................................................... 14 Rembrandt Vision Technologies, L.P. v. Johnson & Johnson Vision Care, Inc.No. 2012-1510 (Fed. Cir. August 7, 2013) .................................................................................................................................................. 15 Leo Pharmaceutical Products, Ltd. v. Teresa Stanek Rea, Acting Director, U.S. Patent & Trademark Offjce No. 2012- 1520 (Fed. Cir. August. 12, 2013) ...................................................................................................................................... 15 Trading Technologies Int’l, Inc. v. Open E Cry, LLC No. 2012-1583 (Fed. Cir. August. 30, 2013) .................................. 16 Veterans Appeals Kernea v. Shinseki No. 12-7142 (Fed. Cir. August 1, 2013) .............................................................................................. 17 National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs No. 11-7191 (Fed. Cir. August 5, 2013) .................................................................................................................................................. 17 Middleton v. Shinseki No. 13-7014 (Fed. Cir. August 15, 2013) ...................................................................................... 18 To hear audio recordings of the oral arguments please click here. This publication brings you a digest of precedential cases decided last month by the United States Court of Appeals for the Federal Circuit.
International Trade Appeals ‘455 and that Perski ‘455 did not disclose all features of the claims of the ‘607 patent. The Federal Circuit held that Perski ‘455 constituted prior art because the disclosure in Apple Inc. v. International Trade Commission the provisional application was suffjcient to provide written No. 2012-1338 support for Perski ‘455. However, the Federal Circuit found (Fed. Cir. August 7, 2013) that Perski ‘455 failed to correctly incorporate by reference Opinion by Circuit Judge Moore the teaching of a document required to anticipate Claim 10, and therefore, Claim 10 was found not to be anticipated by In Certain Mobile Devices, and Related Software Perski ‘455. Thereof (Inv. No. 337-TA-750), Complainant Apple Inc. As to the SmartSkin prior art reference, Apple fjled a complaint at the U.S. International Trade Commission argued on appeal that the Commission “improperly employed under Section 337 asserting that many of Respondent a hindsight analysis” and failed to evaluate the secondary Motorola Mobility, Inc.’s smartphones and tablets infringed considerations of nonobviousness presented by Apple. The U.S. Patent Nos. 7,663,607 (’607 patent), 7,812,828 (’828 Federal Circuit agreed and noted that it was “troubled by patent), and 5,379,430 (the ’430 patent), which are directed the ITC’s obviousness analysis” and that the Commission to touchscreens. “never even mentioned, much less weighed as part of the Administrative Law Judge Essex issued an Initial obviousness analysis, the secondary consideration evidence.” Determination on January 13, 2012 fjnding that Motorola The case was vacated and remanded for the Commission to did not violate Section 337. ALJ Essex determined that consider Apple’s evidence related to secondary considerations the ‘828 patent was valid, but that Motorola’s accused of nonobviousness. smartphones and tablets do not infringe the asserted claims On infringement of the ‘828 patent, Apple argued of the ‘828 patent. The claim term “mathematically fjtting on appeal that requiring calculation of the ellipse parameters an ellipse” was construed to require the method to perform “a after the ellipse has been fjtted unnecessarily limits the claim. mathematical process” whereby “an ellipse is actually fjtted The Federal Circuit agreed with Apple and concluded that the to the data,” and ALJ Essex found that Motorola’s products plain language of the claim simply requires the software to do not fjt an ellipse to the electrode data. Although he found “mathematically fjt” the ellipse without implying a separate that Motorola’s accused smartphones and tablets literally step of calculating the ellipse parameters. The Federal infringed the asserted claims the ‘607 patent, ALJ Essex held Circuit vacated the Commission’s fjnding of noninfringement that the claims were invalid for anticipation based on U.S. and remanded the case for additional consideration of Patent No. 7,372,455 (Perski ’455) and obviousness based infringement of the ‘828 patent. on a prior art reference describing the SmartSkin touchscreen system. On March 16, 2012, the Commission issued To read the full opinion click here. its opinion reviewing-in-part and affirming the Initial Determination of no violation of Section 337 and terminated Ashley Furniture Industries, Inc. v. United States the investigation. On review, the Commission affjrmed ALJ No. 2012-1196 Essex’s fjnding of obviousness for the ‘607 patent in view (Fed. Cir. August 19, 2013) of the SmartSkin prior art reference in combination with Opinion by Circuit Judge Moore Japan Unexamined Patent Application Publication No. 2002- 342033A to Jun Rekimoto. The Commission also found that The Court of Appeals for the Federal Circuit Motorola had demonstrated by clear and convincing evidence (“Federal Circuit”) affjrmed the U.S. Court of International that the asserted claims of the ‘607 patent are invalid for Trade’s (“CIT”) dismissal of complaints fjled by Ashley obviousness based on the ability of one of ordinary skill Furniture, Inc., Ethan Allen Global, Inc., and Ethan Allen in the art to combine the disclosure in the SmartSkin prior Operations, Inc. (“Appellants”), holding that Appellants art reference with other familiar elements. Apple appealed were not Affected Domestic Producers (“ADPs”) within the Commission’s claim construction and noninfringement the meaning of the now-repealed Continued Dumping and opinions for the ‘828 patent and its determinations of Subsidy Offset Act (“Byrd Amendment”) and were therefore anticipation and obviousness for the ‘607 patent. not entitled to compensation under that Act. Apple argued at the Federal Circuit in Apple Inc. A U.S. furniture manufacturer and several labor v. International Trade Commission that Perski ‘455 did not unions fjled a petition that led to an antidumping investigation qualify as prior art because the priority application failed to of Chinese wooden bedroom furniture manufacturers. As provide written support for the relevant disclosures in Perski part of the investigation, the International Trade Commission Page 2
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