September 2018

Thales Saves Step-Counter Patent Claims in E.D. Texas

Patent claims directed to counting steps in an exercise session, including accounting for an incline of a surface on which a user is stepping, have survived a Rule 12(b)(6) motion to dismiss. Uniloc USA Inc. v. Samsung Electronics America, Inc., Civil Action No. 2:17-CV-00651-JRG (E.D. Texas Sept. 18, 2018). Applying the familiar Alice/Mayo abstract idea test, Judge Gilstrap, “drawing all reasonable inferences in favor of” the patent owner, found that claim 1 of US Patent No. 7,690,556is “directed towards the unconventional use of accelerometers in a step counter in order to measure the incline traveled by the user,” and that “such use is not directed to an abstract concept under AliceStep One.” Claim 1 of the ’556 patent recites: A step counter system comprising: an accelerometer to detect motion of a user; a step calculation logic to utilize the motion detected by the accelerometer to detect and count steps; and an incline logic to utilize the motion detected by the accelerometer to make a calculation of an incline of a surface on which the user moved for one or more of the steps, wherein the calculation is performed for a step based on identifying a vertical travel up portion of the step,… Read More »Thales Saves Step-Counter Patent Claims in E.D. Texas

Another Unsupported Patent Royalty Rejected

Expert testimony on patent royalties that is unsupported by evidence is excluded. Dominion Assets LLC v. Masimo Corp., Case No. 14-cv-03002 (N.D. Cal. Aug. 1, 2018). Plaintiff Dominion alleged infringement by Defendant Masimo of U.S. Patent Nos. 5,379,764 and 5,460,177, which are directed to radiation measurement techniques for blood concentration. Dominion presented expert testimony on a reasonable royalty. Masimo filed a motion to exclude the expert’s testimony as (1) failing to rely on a license agreement that is economically comparable to the patented invention, (2) failing to apportion damages to the allegedly infringing features, and (3) failing to tie the royalty rate to the facts of the case. The Court agreed with Masimo, excluding Dominion’s expert testimony on damages. On the license agreements, the expert relied on settlement agreements between Masimo and a third party. The agreements involved Masimo’s revolutionary technology. Dominion purchased the asserted patents out of bankruptcy cheaply and had not developed any products. The Court noted the expert’s fundamental economic flaw: comparing the highly-valued Masimo technology to the low-valued patents. Further, the Court noted that the expert’s opinion was unreliable because the agreements covered a portfolio of patents, and not the single claim asserted by Dominion. Finally, the… Read More »Another Unsupported Patent Royalty Rejected

DDR and Enfish Can’t Save Software Fault Recovery Claims

Claims directed to “software fault recovery” are patent-ineligible under 35 U.S.C § 101, said the court in Atticus Research Corp. v. MMSoft Design Ltd., No. 4:17-CV-3387 (S.D. Texas Sept. 6, 2018), granting a Rule 12(b)(6) motion to dismiss allegations that claims of U.S. Patent No. 6,567,937 were infringed.  The court agreed with the defendant that the claims were directed to the unpatentable abstract idea, under the Alice/Mayo test, of taking a corrective default action if a remote user does not specify otherwise within a period of time. Claim 16 of the ’937 patent recites: 16. A program storage device, readable by a computer processor, comprising: instructions stored on the program storage device for causing the computer processor to determine a state of a process executing on the computer processor; transmit a first signal to a remote device if the process is in a first state indicative of a fault condition; initiate a first software fault recovery action to correct the fault condition in accordance with a second signal, the second signal received in response to the first signal; and initiate a second software fault recovery action if the second signal is not received within a specified time period. Under part one of… Read More »DDR and Enfish Can’t Save Software Fault Recovery Claims

The Federal Circuit on Claim Construction and Indefiniteness

In the recent case Intellectual Ventures I LLC v. T-Mobile USA, Inc., the Federal Circuit overturned a district court’s claim construction for reading in a limitation and upheld the district court’s invalidation for indefiniteness for including a subjective term. Claim Construction Intellectual Ventures is a patent assertion entity with an extensive portfolio, from agriculture and construction to nanotechnology and—relevant here—communications. This case began with IV suing wireless carrier T-Mobile in the District of Delaware, one of the busiest patent venues, for infringing U.S. Patent No. 6,640,248. The ’248 patent covers a way of allocating bandwidth for software applications to transmit over a packet-switched network, such as the internet. The claims are directed to a resource allocator that divvies out bandwidth according to which application is making the request. Here is claim 1: 1. An application aware, quality of service (QoS) sensitive, media access control (MAC) layer comprising: an application-aware resource allocator at the MAC layer, wherein said resource allocator allocates bandwidth resource to an internet protocol (IP) flow associated with a software application of a user based on IP QoS requirements of said software application, wherein said resource allocator allocates said bandwidth resource in a packet centric manner that is not… Read More »The Federal Circuit on Claim Construction and Indefiniteness

Overcome Alice by Talking up Technical Benefits

Patent claims directed to dynamically generating and providing an applet to a client from a server should survive Rule 12(b)(6) motions to dismiss, says an Eastern District of Texas Magistrate Judge. Dynamic Applet Technologies, LLC v. Mattress Firm, Inc., Civil Action Nos. 4:17-CV-860, 861, 862, 878ALM-KPJ  (E.D. Texas August 29, 2018). US Patent No. 6,446,111is directed to “client-server communication using a limited capability client over a low-speed communications link.” Independent claim 17 of the ’111 patent recites: 17. A method of processing data comprising: receiving a data request from a client device at a server system over a communications link; collecting on the server a plurality of data items in response to the data request; generating an executable applet dynamically in response to the data request, a constituent system associated with the applet including a subset of the data items therein as pre-loaded values; wherein a further constituent system associated with the executable applet comprises a data interface capability configured to provide a plurality of operations on the pre-loaded values, the operations comprising operations associated with the subset of the data items; and transferring the applet to the client device. The defendants alleged that the ’111 patent claims were “directed to… Read More »Overcome Alice by Talking up Technical Benefits