Chef'n Can't Halt Sales of Trudeau's Vegetable Steamer

In a case testing the scope of a design patent after the Federal Circuit's en banc decision in Egyptian Goddess v. Swisa, local food-appliance innovator, Chef'n Corporation, was recently unsuccessful in obtaining a preliminary injunction against competitor, Trudeau Corporation of Boucherville, Quebec, Canada.

From Judge Pechman's order:

"A visual comparison of the ‘503 design and the Trudeau steamer demonstrates certain similarities, but an ordinary observer with knowledge of the prior art would not confuse the two. Both have very slightly concave center circles surrounded by wider, more concave circular brim. (See Holcomb Decl., Ex. K at 1-9.) There are, however, two striking visual distinctions between the ‘503 Patent and the Trudeau steamer. First, unlike Trudeau’s steamer which has only a flat center and one change in concavity, the ‘503 Patent possesses circumferential rings illustrating multiple degrees of concavity. The ‘503 design has two intermediate rings between the center of the steamer and the top ridge. ‘503 Patent, Fig. 4. Trudeau’s steamer, in contrast, has only one intermediate change in concavity. (Holcomb Decl., Ex. K at 6.) Second, Chef’n’s design possesses a small, depressed ring at the center of the steamer. ‘503 Patent, Figs. 1-2, 5. Trudeau’s steamer lacks any such inner circumferential ring. (Holcomb Decl., Ex. K at 5.) The Court is aware that, pursuant to Egyptian Goddess and Gorham, isolated differences are less important than “general appearance and effect.” Egyptian Goddess, Inc., 541 F.3d at 670 (quoting Gorham, 81 US at 531). The two visual distinctions the Court observes, however, are not simply isolated differences. The ‘503 design is visually more complex than the Trudeau steamer and an ordinary observer would not confuse the two."

chef%27n_order_denying_PI.pdf

Seattle Patent Litigation Update: September 2008

Three new patent cases were filed in Seattle last month, all three assigned to Judge Pechman.

September 26, 2008
Amphipod Inc v. Penguin Brands Inc
Pechman

September 16, 2008
Majestec 125 LLC v. Maritime Fabrications Inc
Pechman

September 12, 2008
Wistron Corporation v. Samsung Electronics Co Ltd et al
Pechman

Perhaps the most interesting of the three is the Wistron case against Samsung, where Taiwanese interests are at odds with with Korean interests over the right to sell and import certain PCs, laptops, notebooks, and other computing devices in the U.S.

Established in 2001, Wistron's product development focuses on information communication technology, including notebook and desktop systems that it supplies to other companies to sell under their own brand name. Some well known brands incorporating Wistron's products include Microsoft, HP, Dell, and Lenovo. Samsung is a well know manufacturer and seller of consumer electronic equipment ranging from DVD players to cell phones. According to the complaint, in 2007 Samsung had $7.4 Billion in income from nearly $100 Billion in sales.

There are three patents at issue in the Wistron case, all relating to Power Management, US Patent Nos. 5,410,713, 5,870,613, and 5,903,765. As a side issue, all three patents were once assigned to Smith Corona/Acer of New Canaan Conn., a company that, according to Wistron's website, was a predecessor in interest to Wistron (at least Acer Inc. was). USPTO assignment records show that these patents were assigned to Acer America Corportation in December 1995, and then to Wistron Corporation in July 2008. As yet another side issue, Samsung and Wistron are also parties to another lawsuit in the ND of California over US Patent Nos. 5,333,273, 5625,275, and 6,523,100, owned by Samsung. In the California case, Wistron is a DJ plaintiff. The California patents relate to ISA computer architecture, such as the intel x86 type microprocessor, in particular so-called "hot keys" that control "terminate and stay resident" (TSR) programs. Samsung has already successfully litigated the '273 patent in a case against Quanta, 3:00-CV-04524 VRW.

In other Seattle patent litigation news, Amazon was sued over home automation systems last month. It and 11 other companies were alleged to infringe US Patent Nos 6,891,838 and 7,103,511, patents covering systems that automatically adjust things like temperature, lights, security, entertainment, and plant watering, among other systems that use energy in your home. The plaintiff is SIPCO LLC, an entity that was formerly known as "Statsignal IPC LLC" according to filings before the Georgia Secretary of State's office. The patents in suit have changed hands six times since 2000, including a sojourn with Hunt Technologies, a company that was later absorbed by Landis+Gyr. SIPCO gained ownership of the patents by way of a judicial decree in July 2007, handed down by the U.S.D.C. in the Northern District of Georgia. I'm sure there is a story there, but I'm too busy to chase it down. SIPCO is related in some way to IP Co. LLC, they share the similar corporate addresses, names, and agents, according to Georgia Records (IP Co. used to be known as "Statsignal Metering Company, LLC."). IP Co. and SIPCO were plaintiffs in a case against Cellnet Technologies, Inc. and Hunt Technologies, LLC, (among others) filed in 2006 in Georgia.

Microsoft was also busy last month. Its summary judgment victory over Uniloc, Inc. was remanded by the CAFC for trial after en banc review was denied (08-1121). The Uniloc patent at issue is US No. 5,490,216 covering certain computer security technology. Microsoft was also sued by Stragent LLC (again) in connection with a patent for voice activation technology. The patent-in-suit is U.S. No. 7,424,431. Microsoft's other dispute with Stragent LLC is over U.S. 6,665,722. In that case, Microsoft is joined by Defendants, Nokia, Yahoo!, Google, Motorola, Palm, Sony Ericsson Mobile, and AT and T. The '722 patent owned by Stragent is alleged to cover certain mobile messaging systems.

Stragent is a patent holding company organized by Kevin Zilka of Zilka-Kotab P.C. Stragent acquired the '722 patent from BBN Technologies in 2007 and it acquired the '431 patent from Voice Demand, Inc. in the same year.

Philips Electronics Can't Overturn Interference Ruling

In the United States (at least for the time being), the first person to invent has superior rights in a dispute involving multiple claims covering the same subject matter. According to a decision by the USPTO's Board of Patent Appeals and Interferences, an inventor at Philips Electronics, Morgan, was not the first to invent certain defibrillator methods claimed in US Patent No. 6,241,751.

The invention claimed in the '741 patent involved considering patient impedance levels and adjusting the pulse of the defibrillator in response to those impedance levels. According to the Board, an inventor at Cardiac Science, Owen, was the first to invent defibrillators with this capability. Philips asked the USDC here in Seattle to review the Board's decision under 35 USC section 146, and Judge Pechman affirmed the Board on all issues. Most notably, Judge Pechman decided that the Board was not required to construe the terms "impedance-compensated defiblliation pulse," because no matter how those terms were construed, the specific interpretation would not have impacted the Board's ultimate decision.

From Judge Pechman's order:

The issue presented by this motion is whether the Board erred in failing to construe the
claim “impedance-compensated defibrillation pulse.” The Board never made a single decision
not to construe the claim, but instead determined that claim construction was not necessary to resolve Philips’ preliminary motions. No authority suggests that the Board is required to
perform claim construction when it is not necessary to decide an issue presented in a party’s
motion.

phillips146action_orderdismissining.pdf

Seattle Patent Litigation News

Note to self: don't file an early summary judgment motion in Judge Pechman's court where said motion implicates claim construction issues. In an earlier post here, I discussed Wizkids Inc. v. Wizards of the Coast, a dispute involving US Patent No. 7,201,374 for a Method and Article of Manufacture for a Collectible Game. The DJ Plaintiff, Wizkids, Inc., had filed a motion for leave of court to have Judge Pechman hear early summary judgment arguments of invalidity. Judge Pechman denied the motion, citing the fact that it implicated claims construction issues, and that those issues should be briefed and heard in a proper Markman hearing. Recently, Wizkids filed another early motion for summary judgment on an issue concerning the scope of potential damages. In an interesting twist, Judge Pechman ordered the parties to use the joint brief submission procedures of Local Rule 37 to brief arguments on Wizkids latest motion for summary judgment. Under that rule, the motion would be noted for consideration on the day it is filed, and the briefing would take about a week's time total. Here is her order on Wizkids' latest motion for summary judgment. PEchmanoerderjointSJsubmission.pdf Also, it should be noted that Judge Pechman now has a standing order for all patent cases, where she makes it quite clear that she will not entertain any dispositive motion implicating claims construction issues until the claims have been interpreted under Markman. Pechman%27sStanding%20OrderPatentCases.pdf

In other news, the dispute between CRS, LLC and IGN Entertainment, Inc, involving US Patent No. 6,073,124 for a Method and System for Securely incorporating Electronic Information Into Online Purchasing Application has settled. Details of the settlement remain confidential. Judge Zilly's order dismissing the case is attached. CRSORderofDismissal.pdf

Judge Pechman Denies Request for Relief from Scheduling Order

Based on my site data, a lot of you are looking for information on how certain judges in the Western District may handle scheduling in a patent case. I've posted here and here on patent scheduling orders used by Judges Zilly and Robart. Here is a post from a case currently pending before Judge Pechman, WizKids Inc. v. Wizards of the Coast (07-809). This case involves US pat. no. 7,201,374 for a "Method and Article of manufacturer for Collectible Game." The patent is owned by Wizards of the Coast, who was sued by Wizkids in a declaratory judgment action alleging non-infringement and invalidity of the '374 patent. Judge Pechman issued a scheduling order setting forth deadlines for (among others) claim construction briefing, preliminary contentions concerning claim construction, and a Markman hearing (attached below, PDF). Declaratory Judgment Plaintiff Wizkids asked for relief from this order, contending that the court did not need to engage in complicated claims construction to hear its motion for summary judgment on the issue of invalidity. Judge Pechman disagreed. From the order denying leave to file an early summary judgment motion:

"Plaintiff claims support or this departure from the case schedule from a recent Supreme Court case which held '[w]here, as here the content of the prior art, the scope of the patent claim, and the level of ordinary skill in the art are not in material dispute, and the obviousness of the claim is apparent in light of these factors, summary judgment is appropriate.' KSR Int’l v.Teleflex Inc., ___ U.S. ___, 127 S.Ct. 1727, 1745-46 (2007). Plaintiff wishes to file a motion seeking summary judgment on grounds of obviousness based on prior art. Plaintiff’s argument (and its reliance on KSR) is valid only if the scope of the patent claims and the level of ordinary skill of the art are not in dispute. Plaintiff argues that they are not, but the argument and the evidence are not persuasive. . . . It is apparent from the parties’ pleadings that claim construction will assist in the determination of obviousness. Both the correspondence which they exchanged prior to initiation of the lawsuit and the arguments regarding construction of claim terms in their briefs are evidence that the scope of the claims here is still in dispute. Furthermore, the discovery process has just begun and no depositions (including those of Plaintiff’s game experts who are testifying as to the 'ordinary level of skill' required in this matter) have been taken."
WizKidsOrderLeavetofileearlySJ.pdf
wizkidspechmanschedulingorder.pdf
WizCoastsClaimsContentions.pdf