Where is the line between writing a letter that asks for licensing discussions, based on a reasonable assessment of existing infringement, versus one that triggers a DJ action where you are hauled into court in a foreign forum. A recent precedential decision from the Federal Circuit, Apple Inc. v. Zipit Wireless, Inc., addresses this question. While the law generally favors pre-suit settlement discussions that avoid litigation, the practical effects of the Zipit decision may inadvertently do the opposite.
Read MoreThe Federal Circuit issued its precedential decision within the dispute between the California Institute of Technology (“Caltech”) versus both Broadcom and Apple. (Case Nos. 2020-2222, 2021-1527 (Fed. Cir. Feb. 4, 2022)). The Court held that there is no categorical bar against considering domestic sales activities—apart from the locations of actual manufacturer, delivery and contract execution—in the course of determining the location of an accused “sale” under Sec. 271(a).
Read MoreThe PTAB’s decision in Apple, Inc. v. Fintiv, Inc., Case No. IPR2020-00019 (Paper No. 11) has been designated precedential as of May 5, 2020. The decision outlines the factors that the PTAB will consider when determining whether petitions should be denied under § 314(a) based upon a parallel district court litigation in which the same invalidity arguments have been raised. The case implicates the balance between patent owners and patent challengers, and who carries the heavier load.
Read MoreIntel’s lawsuit takes aim at a new aspect of PAEs. That aspect is patent aggregation. Intel and Apple, two big-tech companies, are seeking a court ruling that would essentially hold that the very act of aggregating patents can give rise to antitrust violations. The implications of that could redound far beyond the alleged scourge of “patent trolls.” Indeed, the real targets of Intel’s lawsuit are not PAEs, but rather startups.
Read MoreThis week’s edition of The Economist addresses an interesting spin on the prospects of budding Silicon Valley startups living under the shadow of Big Tech. The fantasy of getting bought is being supplanted by the reality of getting taken out. The Economist argues that startups now live within a kill zone maintained by Big Tech—either sell out on our terms, or we’ll co-opt your technology and launch our own product. While antitrust may be one solution to give more leverage to innovators, what about patents?
Read MoreOur earlier post on VirnetX’s recent $502M jury verdict commended the company and its counsel on an incredible win, but nevertheless pointed out that it might be for naught. The patents asserted in the trial for the $502M damages currently stand invalid pursuant to petitions for inter pares re-examination and inter partes review. But what about Oil States? The case is currently pending before the Supreme Court, and it addresses the constitutionality of petitions for inter partes review (IPR). The case has already heard oral argument, and a decision is expected imminently. Some commentators have suggested that if the Supreme Court holds IPRs unconstitutional, then that will vacate the invalidity decisions of VirnetX’s patents from the PTAB, and nothing will finally stand in the way of VirnetX’s damages. What are the considerations that may keep alive VirnetX's prospect of collecting damages?
Read MoreVirnetX ($VHC) has won another trial against Apple ($APPL) in the federal court in Texas. This time the verdict is approximately $502M. But the patents stand invalid based upon PTO decisions, and those decisions are pending before the Federal Circuit. Who's winning this battle?
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