by
In 2012 the Department of Commerce issued an antidumping duty order, covering Crystalline Silicon Photovoltaic Cells, Whether or Not Assembled into Modules, from the People’s Republic of China. In 2014, Commerce initiated a requested review, limited to the two largest Chinese exporters of that merchandise by volume, Wuxi and Yingli, 19 U.S.C. 1677f-1(c)(2) . Commerce's Final Results calculated a weighted-average dumping margin for Yingli of 0.79%, based in part on its selection of surrogate values for each factor of production, including aluminum frames, and semi-finished polysilicon ingots and blocks. For aluminum frames, Commerce selected a value derived from import data based on Thai Harmonized Tariff Schedule Heading 7604 for “[a]luminum bars, rods[,] and profiles,” other than those specifically provided for in other subheadings at a comparable level, For semi-finished polysilicon ingots and blocks, Commerce selected the “world market price for polysilicon of $18.19 per kilogram.” SolarWorld sued, arguing that Commerce should have calculated a higher antidumping margin for Yingli and erred by undervaluing the surrogate values for Yingli’s inputs. The Trade Court and Federal Circuit affirmed Commerce’s final results of remand redetermination. Commerce’s selection of surrogate values for both aluminum frames and semi-finished polysilicon ingots and blocks is supported by substantial evidence and otherwise in accordance with law. View "SolarWorld Americas, Inc. v. United States" on Justia Law

by
Hansen served in the Army National Guard for six years, which included, at the start of his service in 1959, 182 days of active duty for training. Hansen died from amyotrophic lateral sclerosis (ALS) in 1998. In 2009, his widow applied to the VA for benefits under 38 U.S.C. 1310(a), which provides that “[w]hen any veteran dies after December 31, 1956, from a service-connected or compensable disability, the Secretary shall pay dependency and indemnity compensation to such veteran’s surviving spouse, children, and parents.” A 2008 regulation declares that “the development of [ALS] manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease.” 38 C.F.R. 3.318(a) (ALS Rule). The Board of Veterans’ Appeals and the Veterans Court held that Hansen’s “active duty for training” service does not qualify as active duty, and denied the benefits claim. The Federal Circuit affirmed. The 38 U.S.C.101(24) definition of “active military, naval, or air service” has been interpreted as excluding training in these circumstances. View "Hansen-Sorensen v. Wilkie" on Justia Law

by
In December 2015, Apple filed two petitions for inter partes review of the 696 patent, challenging certain claims as obvious. VirnetX filed responses arguing that prior art reference RFC 2401 was not a printed publication under 35 U.S.C. 102(b) as of November 1998. The Patent Board found that RFC 2401 was a printed publication and concluded that the 696 patent was unpatentable as obvious. During the pendency of VirnetX’s appeal, the Federal Circuit decided another case between the parties (VirnetX I), upholding the Board’s decision that RFC 2401 was a printed publication as of November 1998. The Federal Circuit then held that VirnetX is collaterally estopped by the VirnetX I judgment from relitigating the printed publication issue. VirnetX did not preserve an issue of whether inter partes review procedures apply retroactively to patents that were filed before Congress enacted the America Invents Act. View "VirnetX Inc. v. Apple, Inc." on Justia Law

by
Laerdal, which manufactures and distributes medical devices, filed a complaint at the International Trade Commission asserting violations of 19 U.S.C. 1337 by infringement of Laerdal’s patents, trademarks, trade dress, and copyrights by importing, selling for importation, or selling within the U.S. certain medical devices. The Commission investigated Laerdal’s trade dress claims, one patent claim, two copyright claims, and one trademark claim, excluding all others. Despite being served with notice, no respondent responded. An ALJ issued the Order to Show Cause. Respondents did not respond. An ALJ issued an initial determination finding all respondents in default. Laerdal modified its requested relief to immediate entry of limited exclusion orders and cease and desist orders. The Commission requested briefing on remedies, the public interest, and bonding. The Commission's final determination granted Laerdal limited exclusion orders against three respondents and a cease and desist order against one, based on patent and trademark claims; it issued no relief on trade dress and copyright claims, finding Laerdal’s allegations inadequate. As to trade dress claims, the Commission found that Laerdal failed to plead sufficiently that it suffered the requisite harm, the specific elements that constitute its trade dresses, and that its trade dresses were not functional; despite approving the ALJ’s initial determination of default and despite requesting supplemental briefing solely related remedy, the Commission issued no relief on those claims. The Federal Circuit vacated. The Commission violated 19 U.S.C. 1337(g)(1) by terminating the investigation and issuing no relief for its trade dress claims against defaulting respondents. View "Laerdal Medical Corp. v. International Trade Commission" on Justia Law

by
PET, a Texas LLC registered to do business throughout Texas, has its registered address in Plano, which is in the Eastern District of Texas. The Banks all have their principal offices or branches or customers in the Northern District of Texas. PET's “sole business is to enforce its intellectual property.” PET’s CEO wrote to each of the Banks, identifying PET’s patents, stating that the Banks are believed to be infringing the patents, and inviting non-exclusive licenses. All the Banks conduct banking business in the Northern District of Texas. All the letters from PET referred to PET’s pending lawsuit against Citizens National Bank in the Eastern District. The Northern District of Texas dismissed the Banks’ declaratory judgment action, reasoning that PET’s contacts with the Northern District did not subject it to personal jurisdiction. The Federal Circuit reversed, finding that PET is subject to personal jurisdiction in the Northern District under 28 U.S.C. 1391: Venue in a multidistrict state. PET “purposefully directed” its charges of infringement to banks conducting banking business in the Northern District. The charges “arise out of or relate to” PET’s patent licensing activities in the Northern District. PET has met the minimum contacts requirement without offense to due process. View "Jack Henry & Associates, Inc.. v. Plano Encryption Technologies, LLC" on Justia Law

Posted in: Civil Procedure

by
When the patent owner filed for the 772 patent, the law defined the patent term as 17 years from the date the patent issued. The law was later amended to define the patent term as expiring 20 years from the patent’s earliest effective filing date, Uruguay Round Agreements Act of 1994 (URAA), 108 Stat. 4983. The owner then filed for the related 990 patent. The change in law caused the second patent to expire earlier than the first patent. The owner concedes that the claimed inventions in the two related patents are obvious variants of each other. The district court invalidated the 772 patent based on obviousness-type double patent; the invalidating reference, the 990 patent, was filed and issued after, but expired before, the 772 patent. The Federal Circuit reversed. The patents are governed by different patent term statutory regimes; the correct framework is to apply the traditional obviousness-type double patenting practices extant in the pre-URAA era to the pre-URAA patent and look to that patent’s issuance date as the reference point for obviousness-type double patenting. Under this framework, and because a change in patent term law should not truncate the term statutorily assigned to the pre-URAA 772 patent, the 990 patent is not a proper double patenting reference. View "Novartis Pharmaceuticals Corp. v. Breckenridge Pharmaceutical, Inc." on Justia Law

by
Ezra filed an Abbreviated New Drug Application (ANDA) for a generic version of Novartis’s multiple sclerosis drug, Gilenya®. Novartis sued for infringement, asserting the 229 patent. Because the 229 patent was filed before the 1994 Uruguay Round Agreements Act (URAA), its patent term was 17 years. It was set to expire in 2014. Novartis secured a patent term extension (PTE) of five years, 35 U.S.C. 156. Section 156 was enacted to restore the value of the patent term that an owner loses because the product cannot be commercially marketed without regulatory, e.g., FDA, approval. Multiple patents may cover the same product, but only one patent’s term can be extended. Novartis also owned the 565 patent covering Gilenya® and sought PTE on the 229 patent, which now expires in February 2019. Because the 565 patent issued from an application filed after the URAA, its 20-year term expired in 2017. The court denied Ezra’s motion for judgment on the pleadings, where Ezra argued that the extension of the 229 patent’s term beyond the life of the 565 patent de facto extended the life of the 565 patent and rendered the 229 patent invalid for double patenting; the two patents' claims are not patentably distinct. Ezra stipulated that its ANDA product infringes and dropped the double patenting issues. The court found the 229 patent valid, unexpired, enforceable, and infringed, and enjoined Ezra’s ANDA product until the 2019 expiration. The Federal Circuit affirmed. Obviousness-type double patenting does not invalidate an otherwise valid PTE. View "Novartis AG v. Ezra Ventures LLC" on Justia Law

by
Maxchief has its principal place of business in China and distributes one of the plastic tables it manufactures (UT-18) exclusively through Meco, which is located in Tennessee. Meco sells the UT-18 tables to retailers. Wok competes with Maxchief in the market for plastic folding tables, and also has its principal place of business in China. Wok owns patents directed to folding tables. Wok sued Maxchief’s customer, Staples, in the Central District of California, alleging that Staples’ sale of Maxchief’s UT-18 table infringed the Wok patents. Staples requested that Meco defend and indemnify Staples. Meco requested that Maxchief defend and indemnify Meco and Staples. The Staples action is stayed pending the outcome of this case. Maxchief then sued Wok in the Eastern District of Tennessee, seeking declarations of non-infringement or invalidity of all claims of the Wok patents and alleging tortious interference with business relations under Tennessee state law. The district court dismissed the declaratory judgment claim for lack of personal jurisdiction. With respect to the state law tortious interference claim, the district court concluded it lacked subject matter jurisdiction. The Federal Circuit affirmed. Wok lacked sufficient contacts with the forum state of Tennessee for personal jurisdiction as to both the declaratory judgment claim and the tortious interference claim. View "Maxchief Investments Ltd. v. Wok & Pan, Ind., Inc." on Justia Law

by
Saint Louis Brewery (SLB), a craft brewery founded in 1989 by Thomas Schlafly and Daniel Kopman, began selling beer with the SCHLAFLY logo in 1991 and asserts that it “has continuously sold beer under its SCHLAFLY trademark” ever since. In 2011, SLB applied for trademark registration for the word mark “SCHLAFLY” for use with various types of beer. The application drew opposition from Phyllis Schlafly, Thomas’s aunt and a well-known conservative activist (now deceased), and Bruce Schlafly (Opposers). The Trademark Trial and Appeal Board denied the opposition. The Federal Circuit affirmed the registration, rejecting an argument that the Board did not recognize that the mark was “primarily merely a surname,” and improperly accepted that the mark has acquired secondary meaning although the applicant did not provide survey evidence. The court also rejected claims of violation of the Opposers’ First Amendment, Fifth Amendment, and Due Process rights and protections. A trademark registration does not constitute a “taking” and the trademark opposition procedure, of which the Opposers have availed themselves, provides an appropriate process of law. View "Schlafly v. Saint Louis Brewery, LLC" on Justia Law

by
The Court of Federal Claims held that the government effected a physical taking of a 10-acre peninsula on the island of Culebra in Puerto Rico, when the Fish and Wildlife Service faxed its claim of ownership to a gun mount located on the peninsula to a potential purchaser. The location of the government’s claim had been disputed for many years. After the fax was sent, a potential buyer of the land around the claimed area backed out. The Federal Circuit reversed, first holding that the claim was not untimely under the Tucker Act, 28 U.S.C. 1491. Even if Plaintiffs “knew or had reason to know of the government’s claims" before 2006, a mere government assertion of ownership does not constitute a taking. The scope and location of the government’s alleged taking was not previously fixed as it was in the 2006 fax. The government’s mere sharing of information about its claim of ownership with a third party does not constitute a physical taking (or a per se regulatory taking) of that property; the government did not physically occupy part of Plaintiffs’ property, require Plaintiffs to suffer a permanent physical invasion, directly appropriate Plaintiffs’ property, constitute the functional equivalent of an ouster of Plaintiffs’ possession, or deprive Plaintiffs of all economically beneficial use of Plaintiffs’ property. View "Katzin v. United States" on Justia Law