United States: Spotlight On Upcoming Oral Arguments – October, 2016

Authors: Umber Aggarwal*, Pejmon Pashai*

Universal Electronics v. Universal Remote Control, No. 15-1410, Courtroom B in Malibu, CA

In this appeal, the Federal Circuit will determine whether the district court properly exercised its discretion when it found no patent misuse or unclean hands on the part of Universal Electronics ("UE"), leading to a much smaller attorney's fees award for Universal Remote Control ("URC"). URC first argues that the jury verdict, which made all of its findings in favor of URC, was binding based on the procedures set forth by the district court and the conduct of the two parties. Specifically, URC asserts that the district court acted improperly in deeming the jury's verdict as advisory after the trial had concluded and without giving prior notice. URC also argues that the district court violated the Seventh Amendment when it failed to heed the factual findings implicit in the jury's verdict while assessing patent misuse and unclean hands. The Court is on the road this week hearing this case in Malibu, California.

Trading Technologies v. Rosenthal Collins Group, No. 16-2223, Courtroom 201

Trading Technologies files this appeal claiming that the district court erred in analyzing the four enumerated stay factors in Section 18(b)(1) of the AIA and staying this six-year long case for a third time pending CBM review of six of twelve patents-in-suit. Trading Technologies argues that the defendants requesting the CBM reviews chose not to join a prior round of CBM reviews on the same six patents by a separate co-defendant. Additionally, Trading Technologies points to the defendants' intent to extend the stay through tactical CBM petition filings spread out over a year, the extent of delay caused by the defendants in this case, and the little benefit the CBM proceedings will have on simplifying the litigation. The appellees contend that it is their statutory right to seek CBM review and that the stay prevents unnecessary and counterproductive litigation costs.

Helsinn Healthcare v. Teva Pharmaceuticals, No. 16-1284, Courtroom 402

This appeal raises a statutory interpretation issue regarding the pre-AIA on-sale bar and its application to private commercial agreements. Accused infringer Teva contends that the claimed formulations were ready for patenting before the critical date and Helsinn's agreement with a third party manufacturer for a future commercial product violated the on-sale bar. Teva argues that the on-sale bar does not require the invention to be made "available to the public." Helsinn counters that Teva failed to provide clear and convincing evidence that the claimed elements were ready for patenting prior to the critical date. Alternatively, Helsinn argues that their agreement did not trigger the on-sale bar because it merely established potential future distributions after the critical date and it did not make the claimed invention "available to the public," as allegedly required under pre-AIA 35 U.S.C. § 102(a)(1). A number of amicus briefs have been filed in this case, including by AIPLA, the U.S. government, Congressman Lamar Smith (lead sponsor of the AIA bill), and Pharma Research and Manufacturers of America.

October 5, 2016

DataTreasury Corporation v. Fidelity National Information, No. 16-1046, Courtroom D in Los Angeles, CA

In this appeal, the Federal Circuit reviews DataTreasury's infamous Ballard patents, which Congress discussed during floor debates before enacting Section 18 of the AIA outlining CBM Review proceedings. The Court will review the PTAB's rulings that the claims at issue are covered business methods and are unpatentable under § 101. DataTreasury argues that the Board erred in instituting CBM review, reviewing only two representative claims and concluding that the patents fail to describe encrypting subsystem identification information. Fidelity National contends that the Board was correct in its findings because the patent claims fundamental financial processes that were admittedly "essentially universal" and performed by hand in the prior art. The Court is on the road this week hearing this case in Los Angeles, California.

* Umber Aggarwal and Pejmon Pashai are Law Clerks at Finnegan

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