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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 accused Twitter (through its acquisition of Vine) of infringing multiple patents. Youtoo Techs. LLC v. Twitter Inc., No. 3:16-CV-00764N (N.D. Tex. Nov. 10, 2016). Here is a representative claim from U.S. Pat. No. U.S. Pat. No. 8,464,304: A method performed by data processing apparatus, the method comprising: receiving video data from a client computing device at a server system, wherein the video data is captured using a camera connected to the client computing device in accordance with instructions executed on the client computing device, wherein the instructions are provided to the client computing device by…

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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 on previously undiscovered prior art. The recent Federal Circuit case of Indacon, Inc. v. Facebook, Inc. raises that question of prosecution strategy. Like many patent cases, Indacon hinged on claim construction. After an adverse Markman ruling by the district court, Indacon stipulated that Facebook did not infringe and proceeded to the Federal Circuit. The patent at issue describes automatically generating and inserting hyperlinks for terms in a database. The district court construed three related terms about linking to require that all instances of a term be linked: “Custom link” “a link the user can define…

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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 I LLC v. Ricoh Americas Corp., Civ. No. 13-474-SLR (D. Del. Mar. 22, 2016); Network Congestion Solutions, LLC v. U.S. Cellular Corp., Civ. No. 14-903-SLR (D. Del. Mar. 22, 2016). The trend? In applying § 101 since Alice Corp. Pty. Ltd. v. CLS Bank Int’l., 134 S. Ct. 2347 (2014), courts have given software patents a rough go of it. District courts frequently cite Alice to strike down software patents. And as Judge Robinson notes, the Federal Circuit, for its part, has not upheld a computer-implemented patent under § 101 since DDR Holdings, LLC v.…

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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 patent more heavily than evidence from the reexamination when applying the test for intervening rights. Intervening rights protect accused infringers when a patentee amends a patent in a reexamination proceeding. See 35 U.S.C. § 252. The test is whether the scope of the claims changed during the reexamination: for the patentee to collect damages for infringement occurring before the reexamination, the scope of the claims before the reexam must be identical to the scope of the claims after. The court reiterated, however, that the test is substantive. The language of the claims may change so…

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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 we thought we would share a brief tour of the exciting high tech developments we saw at the 2016 Auto Show. The Auto Show provides automakers a chance to talk to the public—ticketed attendance this year was 815,575, a twelve-year high. While automakers devoted considerable floor space to show off the upcoming 2017 models, they also sought to educate an often excited, sometimes skeptical public about major shifts in the industry, mainly electrification and automation. The most immediate step toward an electric future for vehicles, and one of the biggest stories coming out of the…

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