Seattle Patent Litigation News

It's been a while since I've posted. I know both of you are disappointed (hi mom). Reason for the hiatus is that I've been preparing for trial. So expect my posts to be less frequent through about the end of July.

There's still a lot to report on the local patent litigation front. First, as I'm sure many of you already know, Nintendo was hit with a significant infringement verdict by a Texas jury last week, in the amount of about $21 Million. My previous post on this case can be found here. Here is a bit of coverage of the case from IP 360

Thursday, May 15, 2008 --- Nintendo Inc. was ordered to pay a small Texan
patent holder $21 million on Wednesday for infringing patents related to the
controllers for its popular GameCube and Wii video-gaming systems.
A federal jury found that Nintendo infringed Anascape Ltd.'s patents with its
WaveBird and Gamecube controllers for the GameCube and Wii Classic
controller for the Wii. The Wii remote and nunchuck controllers were not
included in the suit.
The jury's verdict followed a two-week trial in the U.S. District Court for the
Eastern District of Texas.
"We are extremely pleased with the jury's verdict. Anascape may be a tiny
company compared to Nintendo, but today's verdict confirms that the
company's technology is second to none,” said Doug Cawley of McKool
Smith PC, which represented Anascape.
A representative for Nintendo said the company was planning on appealing
the ruling and that the appeals court would “promptly reduce the dollar
amount of the verdict significantly.”

In other news, the Western District of Washington published its set of proposed patent rules. Check them our by following this link: http://www.wawd.uscourts.gov/proposedlocalrules.htm

I'd like someone to offer to guest blog about these rules since I won't have the time for a while (no Mom, you can't). Please let me know if you have time/interest in writing a little summary of the proposed new rules, and perhaps comparing them to other districts, like the ED Texas, or ND Cal.

Finally, Local software company Widevine Technologies Inc., has expanded its patent infringement case against competitor Verimatrix in the ED of Texas. The suit involves video encryption technology, and since my firm is handling the case on behalf of Widevine, I'll just post some snippets from the recent IP 360 article.

Tuesday, May 20, 2008 --- Widevine Technologies Inc. has stepped up its
legal battle against Verimatrix Inc., filing an amended complaint that adds
another patent to its infringement suit over video encryption technology.
The amended complaint, filed Tuesday in the U.S. District Court for the
Eastern District of Texas, takes aim at Verimatrix's video content authority
system, claiming the VCAS product infringes on Widevine's U.S. Patent
Number 7,376,831, which covers Widevine's Cypher technology for video
encryption.
Widevine first launched its suit against Verimatrix last August over
Verimatrix's alleged infringement of U.S. Patent Number 7,165,175. That
patent, issued in January 2007, covers methods and systems for selectively
encrypting different portions of data, such as video or audio, that are sent
over the Internet, according to the original complaint.
Widevine's amended complaint claims that Verimatrix was already aware of
the '175 patent as early as March 2007, when Widevine sent a letter
informing Verimatrix that the ’175 patent had issued.

That's all for now.

Seattle Patent Litigation Report: April 2008

April was a very busy month for patent litigation in the Western District of Washington. Wacom settled its patent dispute with competitor, Hanvon, Microsoft and Veritas settled their decade old database dispute, and there were seven new cases filed.

TGN, Inc v. CRS, LLC, (2:2008cv00680) (Pechman)

VTran Media Technologies LLC v. Astound Broadband LLC et al , (2:2008cv00650) (Pechman)

Unigen Pharmaceuticals Inc v. Perrigo Company et al, (3:2008cv05258) (Leighton)

Gardner v. Toyota Motor Corporation et al, (2:2008cv00632) (Jones)

Koninklijke Philips Electronics NV, (2:2008cv00543) (Pechman)

American Piledriving Equipment Inc v. Hydraulic Power Systems Inc et al, (2:2008cv00537) (Martinez)

Progressive International Corporation v. Jo-Ann Stores Inc (2:2008cv00514) (Lasnik)

All Eyes On Translogic's Patent Appeal to Supreme Court

Normally, a party who loses its appeal at the Federal Circuit has little hope of the Supreme Court accepting its case on a petition for Certiorari. Even with increased activity by the Supreme Court reviewing patent cases in the last two years, chances of having review granted by the Supreme Court are less than 1 in 1000. Oregon maker of multiplexer integrated circuits, Transolgic Technologies may have better chances.

I posted last October (here and here) about this case when Translogic sought rehearing by the CAFC en banc. It took the Court until January 2008 to finally deny rehearing. Now, with its $86.5M jury verdict hanging in the balance, Translogic has pulled out all the stops for its petition for certiorari, hiring noted patent legal scholar, John Duffy of George Washington University Law School to challenge the constitutionality of the BPAI's 61 administrative judges. Click here for an article on the case by the National Law Journal.

The National Law Journal quoted Duffy as follows:

"You shouldn't take such a position — saying the whole board is unconstitutionally structured — unless you're pretty sure," said Duffy. "I thought this was incredible. I checked it every single way I could before I went out on a limb to say this . . . .The government has never argued I'm wrong. The question is: What do you do about it?"

Needless to say that many a patent litigator has pondered the question: "Should I stay pending reexam, or let the cases proceed along parallel tracks?" Some district courts (like those in East Texas) are notoriously against staying litigation pending reexamination. In these districts, litigants have little choice but to proceed on parallel tracks. What happens, then, if the patent holder wins (verdict of infringement, patent not invalid) and the claims are held invalid by the BPAI? Translogic says the BPAI's ruling (by a panel of three nonArticle III Judges) can trump a jury's verdict. As many lawyers (myself included) say, "that just can't be right."

Well, we soon may find a definitive answer to this question, and it may cause the unravelling of the BPAI's administrative judicial system. These are indeed exciting times to be practicing patent litigation.

Unigen Agrees to Consolidate Three Pending Cases

Unigen Pharmaceuticals, maker of an herbal supplement Univestin (a blend of flavans from Acacia catechu and flavanoids from Chinese Skullcap (Scutellaria Baicalensis)) agreed Friday to consolidate three pending cases for infringement of US Patent No. 7,192,611. The claims of the '611 patent are directed to a method for treating osteoarthritis using what is known as a Free-B-Ring flavonoid, which includes baicalein. The three defendants are Walgreens, Target, and Perrigo Company of South Carolina Inc. The case against Perrigo was just recently filed late last month.

The Defendants have called the validity of the '611 patent into question in a motion for partial summary judgment of invalidity. The motion, pending before Judge Jones in the case against Defendant Walgreens (No. C07-0471 RAJ), argues that the claims of the '611 patent are invalid in view of US Patent No. 5,650,433 which discloses the use of Free-B-Ring flavanoids, including baicalein, to treat osteoarthritis. Because the '433 patent issued almost five years prior to Unigen's, Defendants argue that Unigen's '611 patent is invalid.

In a previous post, I commented on this case, and Judge Jones' request for an early claim construction "proffer" from Unigen, essentially asking for a good faith construction that would permit a jury to find both infringement and that the claims were not invalid. Unigen complied arguing essentially that the ’611 Patent claims a "method of alleviating those symptoms of osteoarthritis that result from cyclooxygenase enzyme (COX-2) mediated inflammation, while the ’433 Patent is directed towards a method of treating arthropathy generally by administering an agent that suppresses the destruction of articular cartilage.

The claim construction argument is as follows:

"In construing the claims of the ’611 Patent, a person of ordinary skill in the art would conclude that the preambles to Claims 1, 8 and 15—the three independent claims—constitute claim limitations and that those limitations mandate treating osteoarthritis by alleviating those symptoms of osteoarthritis that result from inflammation. In other words, the method of treating osteoarthritis in the ’611 Patent encompasses a reduction of inflammation within the joints themselves, rather than building a protective layer in the cartilage."

Given the above narrow construction of the claims and assuming for the sake of argument that a claim so construed would not be invalid over the '433 patent, this case will be one for inducement or contributory infringement, so Unigen must prove knowledge and intent that Defendants' herbal supplements are used in the above way. This will place defendants' advertising and labelling of the supplements into sharper focus than what one might expect in a garden variety patent case. I would expect to hear from some experts on product labelling and marketing. Perhaps some survey evidence. It will be very important to know what subjective understanding consumers have from reading the subject labelling. Presumably, careful labeling and marketing could be a complete defense in a case like this.