Amicus Curiae United States Moves To Present Oral Argument In Suprema – On January 15, 2015, the United States filed an unopposed motion for leave to participate in oral argument before the en banc Federal Circuit in Suprema v. ITC, No. 12-1170. Oral argument currently is scheduled for February 5, 2015. In its motion, the Department of Justice stated that “[t]his en banc proceeding involves issues of broad significance to the United States” and noted that the United States had filed a brief expressing the views of the federal government as amicus curiae at the invitation of the Federal Circuit. The Justice Department’s amicus brief supports the International Trade Commission’s position that Section 337 authorizes the exclusion “not merely of fully assembled patented inventions, but of all articles for which infringement liability may be imposed under the Patent Act,” including “articles imported into the United States in a manner that constitutes active inducement of patent infringement.” Among other arguments, the Justice Department reasons that because neither the Patent Act nor the Tariff Act define “articles . . . that infringe,” the Commission’s interpretation, translating the in personam liability provisions of the Patent Act into the in rem scheme of the Tariff Act, is reasonable and entitled to deference.
Judge Bullock Issues Order On Expert Testimony In 913 Investigation – On December 29, 2014, Chief ALJ Bullock issued a Notice To The Parties Regarding Ground Rule 10.5.6 in Certain Hemostatic Products, Inv. No. 337-TA-913. Judge Bullock’s Notice provides guidance to the parties concerning Ground Rule 10.5.6 relating to expert testimony to assist the parties in motions in limine and high priority objections. The Notice sets forth two examples of acceptable expert testimony: (1) “An expert opines in his/her expert report that a patent is invalid as obvious and then testifies as to the specific obviousness combinations in his/her witness statement.”; and (2) “An expert states that he/she believes a patent is not infringed and then in his/her testimony sets forth his/her opinions as to why it is not infringed.”; and three examples of improper expert testimony: (1) “An expert opines in his/her expert report that a patent is invalid under § 102(a) and then testifies that the patent is invalid under both §§ 102(a) and 102(b). The testimony regarding §102(b) would be deemed improper.”; (2) An expert opines only on validity in his/her expert report and then testifies as to certain non-infringement opinions. The testimony regarding his/her non-infringement opinions would be deemed improper.”; and (3) “An expert opines in his/her expert report that the asserted claims of a patent are infringed and then testifies that those claims are not only directly infringed, but also infringed under the doctrine of equivalents. The testimony regarding the doctrine of equivalents would be deemed improper.”
Judge Bullock Denies Motion To Enforce Third-Party Subpoena – On December 23, 2014 Chief ALJ Bullock denied a motion for judicial enforcement of a subpoena ad testification in Certain Hemostatic Products, No. 337-TA-913. The subpoena, which was issued by Respondent Ferrosan Medical Devices, sought to compel the testimony of Kilpatrick Townsend & Stockton LLP, which was prosecution counsel for the patents at issue in the Investigation. Judge Bullock held that Ferrosan failed to establish “the purpose, relevance, and reasonableness” of the subpoena “in a particularized manner” as required by Commission Rule 210.32. He found that Ferrosan’s claims that it needed information “in order to fully investigate Baxter’s infringement allegations as well as Ferrosan’s defenses,” and that the information was “critical to Ferrosan’s defenses of invalidity, prosecution history laches, inequitable conduct, and patent misuse” are conclusory statements that do not warrant judicial enforcement.
IPtronix Sues Avago For Antitrust Violations For Filing Allegedly Baseless Section 337 Complaint – On December 29, 2014, IPtronics Inc. and Mellanox Technologies Denmark, APS filed a complaint in the U.S. District Court for the Northern District of California against Avago Technologies, U.S. Inc. and its affiliates for violations of section 2 of the Sherman Antitrust Act arising from the filing of a Section 337 complaint on Certain Optoelectronic Devices For Fiber Optic Communications, Inv. No. 337-TA-860, in which IPtronix and Mellanox were named as respondents. According to the complaint, Avago’s patent infringement claims were objectively baseless when made, and that Avago nevertheless continued to pursue them “despite multiple objective indicia of fundamental deficiencies in those claims.” IPtronics further alleged that Avago’s primary goal was to “abuse the process and harm competition” because it was “determined to prolong the litigation, no matter how expensive or how futile, as long as it depleted IPtronics’ resources.” It allegedly did so with “the specific intent of obtaining dominant market position and monopoly power in the relevant product and geographic markets.” IPtronics is seeking trebled damages and an injunction against Avago.
Amicus Curiae United States Moves To Present Oral Argument In Suprema – On January 15, 2015, the United States filed an unopposed motion for leave to participate in oral argument before the en banc Federal Circuit in Suprema v. ITC, No. 12-1170. Oral argument currently is scheduled for February 5, 2015. In its motion, the Department of Justice stated that “[t]his en banc proceeding involves issues of broad significance to the United States” and noted that the United States had filed a brief expressing the views of the federal government as amicus curiae at the invitation of the Federal Circuit. The Justice Department’s amicus brief supports the International Trade Commission’s position that Section 337 authorizes the exclusion “not merely of fully assembled patented inventions, but of all articles for which infringement liability may be imposed under the Patent Act,” including “articles imported into the United States in a manner that constitutes active inducement of patent infringement.” Among other arguments, the Justice Department reasons that because neither the Patent Act nor the Tariff Act define “articles . . . that infringe,” the Commission’s interpretation, translating the in personam liability provisions of the Patent Act into the in rem scheme of the Tariff Act, is reasonable and entitled to deference.
Judge Bullock Issues Order On Expert Testimony In 913 Investigation – On December 29, 2014, Chief ALJ Bullock issued a Notice To The Parties Regarding Ground Rule 10.5.6 in Certain Hemostatic Products, Inv. No. 337-TA-913. Judge Bullock’s Notice provides guidance to the parties concerning Ground Rule 10.5.6 relating to expert testimony to assist the parties in motions in limine and high priority objections. The Notice sets forth two examples of acceptable expert testimony: (1) “An expert opines in his/her expert report that a patent is invalid as obvious and then testifies as to the specific obviousness combinations in his/her witness statement.”; and (2) “An expert states that he/she believes a patent is not infringed and then in his/her testimony sets forth his/her opinions as to why it is not infringed.”; and three examples of improper expert testimony: (1) “An expert opines in his/her expert report that a patent is invalid under § 102(a) and then testifies that the patent is invalid under both §§ 102(a) and 102(b). The testimony regarding §102(b) would be deemed improper.”; (2) An expert opines only on validity in his/her expert report and then testifies as to certain non-infringement opinions. The testimony regarding his/her non-infringement opinions would be deemed improper.”; and (3) “An expert opines in his/her expert report that the asserted claims of a patent are infringed and then testifies that those claims are not only directly infringed, but also infringed under the doctrine of equivalents. The testimony regarding the doctrine of equivalents would be deemed improper.”
Judge Bullock Denies Motion To Enforce Third-Party Subpoena – On December 23, 2014 Chief ALJ Bullock denied a motion for judicial enforcement of a subpoena ad testification in Certain Hemostatic Products, No. 337-TA-913. The subpoena, which was issued by Respondent Ferrosan Medical Devices, sought to compel the testimony of Kilpatrick Townsend & Stockton LLP, which was prosecution counsel for the patents at issue in the Investigation. Judge Bullock held that Ferrosan failed to establish “the purpose, relevance, and reasonableness” of the subpoena “in a particularized manner” as required by Commission Rule 210.32. He found that Ferrosan’s claims that it needed information “in order to fully investigate Baxter’s infringement allegations as well as Ferrosan’s defenses,” and that the information was “critical to Ferrosan’s defenses of invalidity, prosecution history laches, inequitable conduct, and patent misuse” are conclusory statements that do not warrant judicial enforcement.
IPtronix Sues Avago For Antitrust Violations For Filing Allegedly Baseless Section 337 Complaint – On December 29, 2014, IPtronics Inc. and Mellanox Technologies Denmark, APS filed a complaint in the U.S. District Court for the Northern District of California against Avago Technologies, U.S. Inc. and its affiliates for violations of section 2 of the Sherman Antitrust Act arising from the filing of a Section 337 complaint on Certain Optoelectronic Devices For Fiber Optic Communications, Inv. No. 337-TA-860, in which IPtronix and Mellanox were named as respondents. According to the complaint, Avago’s patent infringement claims were objectively baseless when made, and that Avago nevertheless continued to pursue them “despite multiple objective indicia of fundamental deficiencies in those claims.” IPtronics further alleged that Avago’s primary goal was to “abuse the process and harm competition” because it was “determined to prolong the litigation, no matter how expensive or how futile, as long as it depleted IPtronics’ resources.” It allegedly did so with “the specific intent of obtaining dominant market position and monopoly power in the relevant product and geographic markets.” IPtronics is seeking trebled damages and an injunction against Avago.
