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In the International Trade Commission (“ITC”) proceeding between Apple and HTC, Google (as well as T-Mobile) have filed briefs supporting HTC. These “friends of the court” briefs are often filed to aid the decisionmaker (in this case the ITC) in reaching a conclusion that is not only helpful to the party in the dispute but also is helpful to the party filing the brief. Google’s filing is no different and is obviously made to protect its Android system and platform.

The position taken by Google and T-Mobile is that the public interest will be harmed if Apple is successful in its lawsuit before the ITC as Apple would be able to prevent HTC from selling phones that compete with Apple’s iPhone. Such an injunction, Google argues, would also result in negative impacts to United States’ consumers, such as potential higher prices and a lack of choice in the phones and features that consumers will ultimately have available for purchase.
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Plaintiff Mondis Technology LTD. (“Mondis”) filed a patent infringement action against Chimei Innolux Corp. (“Chimei”). The case proceeded to trial before a jury and the jury found a number of claims valid and infringed by Chimei. The jury also found several claims invalid and not infringed by Chimei. With respect to three of the patents, the jury found that the infringement was willful and awarded damages in the amount of $15 million. The district court then determined whether ongoing royalties and supplemental damages for 2011 sales should be awarded.

The district court began by noting that the jury did not have all of the sales data for the first and second quarters when it rendered its damage award. Because a patentee is entitled to damages for the entire period of infringement, the district court determined that Mondis was entitled to an award of supplementary damages. After determining the appropriate amount of sales, including non-U.S. sales that eventually wind up in the United State, the district court applied the royalty rate determined by the jury (which was .5% for monitors and .75% for televisions) and awarded an additional $1.97 million in supplementary damages.
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Plaintiff sued defendant for patent infringement for direct and indirect infringement for the commercial sale and/or use of the defendant’s asset tracking solutions product. Defendant moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on the ground that plaintiff failed to identify an infringing instrumentality and also failed to allege facts of indirect infringement.

Defendant’s first argument, that plaintiff failed to identify the instrumentality accused of infringement, was disregarded by the district court. The district court found that plaintiff had identified the accused instrumentality by naming the Asset Tracking Solutions product. The defendant’s argument that it did not sell or make such a product was a factual dispute that could not be resolved on a motion to dismiss. The district court also found that plaintiff’s allegations complied with Form 18 and therefore this part of the motion of the motion to dismiss was denied.
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The ongoing patent battles between Apple and Samsung continue to pick up speed and show no signs of slowing down anytime soon. During the summer, Apple filed a motion for a preliminary injunction on certain of its patents and the district court ordered limited initial discovery for the topics raised by the preliminary injunction motion. The hearing on the motion is set for October 13, 2011.

As part of the discovery, Apple sought documents pertaining to the comparison of any Apple product or feature, the redesign of the Galaxy Tab following the release of the iPad 2, consumer surveys regarding the products at issue, marketing and consumer confusion. Apple also sought a deposition of Samsung pursuant to Fed.R.Civ.P. 30(b)(6) on the same topics as the documents requested. Samsung resisted discovery on certain of these issues and Apple moved to compel.
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Multimedia Patent Trust (“MPT”) filed a patent infringement action against several defendants, including DirecTV and Vizio, which alleged infringement of multiple patents related to video compression technology. DirecTV and Vizio answered the complaint an alleged affirmative defenses of patent exhaustion and license.

The parties filed cross motions for summary judgment on the issue of exhaustion and license. DirecTV contended that its licensed suppliers made authorized sales pursuant to a 2002 license and a 2009 license and that these authorized sales exhausted MPT’s patent rights . MPT argued that even though DirecTV’s manufacturers are licensed, the manufacturers’ sales of certain products exceeded the scope of the license. In response, DirecTV argued that patent exhaustion applied because DirecTV’s licensed suppliers’ sales to DirecTV were authorized sales, and authorized sales exhaust a patentee’s rights to sue others who subsequently use or sell the same article that allegedly infringes the patents.
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Plaintiff, Innova Patent Licensing, LLC (“Innova”) filed a patent infringement action against Alcatel-Lucent Holdings (“Alcatel”) for a patent claiming methods for using a mail processing program to scan electronic messages to obtain additional information. Alcatel challenged the patent on the ground that it did not claim eligible subject matter under 35 U.S.C. § 101 and moved to dismiss.

The court stated that “[u]nder the patent laws, certain broad categories of subject matter are eligible for patent protection,” and cited the language from Section 101 (” Whoever invents or discovers any new and useful process, machine, manufacture or composition of matter, or a new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title”) and the United States Supreme Court’s decision in Bilski v. Kappos, 130 S. Ct. 3218, 3225 (2010) (“in choosing such expansive terms modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope”).
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It appears that the announced death of inequitable conduct claims may have been premature. As described below, yet another court allowed such claims to survive summary judgment.

A court in the Northern District of Illinois denied summary judgment on the plaintiff’s motion for summary judgment of no unenforceability. Citing the Federal Circuit’s recent decision in Therasense v. Becton, Dickinson & Co., 2011 WL 2028255 (Fed. Cir. May 25, 2011), the court reiterated the new, heightened standard for proving inequitable conduct that to prevail on such a claim, “the accused infringer must prove by clear and convincing evidence that the applicant knew of the [prior art] reference, knew that it was material, and made a deliberate decision to withhold it.” Slip Op. at 15. Moreover, “merely proving that the applicant should have known of the reference’s materiality is insufficient. Though a district court may infer intent from indirect and circumstantial evidence, in order to meet the clear and convincing evidence standard, the specific intent to deceive must be ‘the single most reasonable inference able to be drawn from the evidence.'” Id. Finally, the accused infringer must prove that the omitted reference is but-for material by showing that the PTO would not have allowed the claim had it been aware of the undisclosed prior art. Id.

The accused infringer claimed that the patentee engaged in inequitable conduct during the prosecution of the patent-in-suit by improperly adding new matter by: (1) submitting an incorrect English translation of the international application; (2) representing to the USPTO that no new matter had been added to the substitute specification filed with the USPTO; and (3) representing that the substitute specification had been provided as required by the Examiner and omitting the proper substitute specification.
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Plaintiff filed a patent infringement action against several defendants. After the district court’s Markman decision, the parties filed cross-motions for summary judgment regarding patent infringement and the scope of damages. After denying the parties’ respective cross-motions for summary judgment, the district court addressed the defense motion for a limitation on damages due to plaintiff’s failure to properly mark his device.
The defendant argued that even if it did infringe the patent-in-suit, plaintiff would not be entitled to any damages for any infringement between the issuance of the patent and the filing of the complaint because plaintiff failed to mark his product with the patent number.

As the district court noted, “[a] patentee may only recover damages for patent infringement that occurs after the patentee provides notice to an accused infringer under 35 U.S.C. § 287(a).” Notice can be satisfied either by constructive notice or actual notice. Constructive notice is satisfied if the patentee marks the product consistently and continuously with the word patent or “pat.” and the patent number or, if the product cannot be marked, the product’s packaging can be marked. Actual notice is satisfied by an affirmative communication from the patentee regarding a specific charge of infringement by a specific accused product or device.
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In a ruling that is likely to become more and more common after the passage of the America Invents Act, the United States District Court for the Northern District of California dismissed all but one of the defendants in a patent infringement action for improper joinder. In February 2010, the plaintiff filed a patent infringement action against Apple, Dell, HP, Lenovo and Sony for allegedly infringing a patent for dynamic power management of solid-state memories. The plaintiff alleged that each of the defendants sells computers and/or computer systems that infringe the patent-in-suit.

Plaintiff filed a motion seeking leave to amend the complaint to join five additional defendants on the ground that the new defendants’ products also allegedly infringe the patent-in-suit. The existing defendants then filed a motion to dismiss the complaint as to all but one of the defendants based on the argument that the defendants were misjoined in the action.
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Plaintiff AlmondNet, Inc. filed a patent infringement action against Microsoft Corporation based on four patents pertaining to Internet advertising. Microsoft filed several affirmative defenses and counterclaims against AlmondNet, including a defense and counterclaim that AlmondNet engaged in inequitable conduct before the PTO by failing to disclose three articles related to Internet advertising and three existing Internet advertising systems. AlmondNet moved to dismiss the inequitable conduct counterclaim and the district court granted the motion with leave to amend to plead inequitable conduct with particularity.

Microsoft subsequently amended its answer and counterclaim and AlmondNet moved to strike the inequitable conduct defense and to dismiss Microsoft’s counterclaim for inequitable conduct. The district court determined that Microsoft’s amended pleading was sufficient and denied the motion.
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