What were the implications of KSR International vs. Teleflex?

For this blog, I looked at an analysis of the KSR International vs. Teleflex case that we had discussed at the end of class on Monday 3/17, which was published by the John Marshall Law School in 2007. As a landmark case in determining what it means to be obvious, it was informative in helping to see what the grey areas might be in defining obviousness.

Some of the more interesting points that the analysis touched on are as follows:

·        What impact the Supreme Court’s KSR decision has on district courts’ processes to decide obviousness challenges. It could be read to suggest that the Supreme Court and the lowerfederal courts may have different ideas concerning how obviousness should be decided as a procedural matter

·        What obviousness can be defined by. The article cites potential sources of information as the scope and content of the prior art, differences between the prior art and the patent claims, and the level of ordinary skill in the relevant field. It also expounds on secondary considerations.

·        When permitting the jury to decide the question of obviousness is wrong. The article’s authors suggest that the ultimate judgment of obviousness is a legal determination, and that the court is to make various determinations. Its most extensive discussion is as follows: “Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue.”

The article recommends that the best way to “tee up” an obviousness case is for either the defendant or plaintiff to move for summary judgment. The court will either grant the motion, in which case there will be no trial on obviousness, or deny the motion, in which case it must in theory have done so because there are disputed issues of underlying fact. The article then elaborates on what might happen in either of these scenarios: if the motion is denied, each side should determine what factual issues are identified as being in dispute, and from there decide whether to propose jury questions or a general verdict.

I think this article did a great job discussing the implications of obviousness decisions for court cases. We had yet to determine what they might be for plaintiffs and defendants in such cases, and how the logistics of those suits might play out. One thing that I would like to learn more about is what the next steps that a defendant or plaintiff in a case that argues obviousness might be, both in and out of court, as we have yet to discuss this.

I further discuss my thoughts on this topic at the following link:
https://www.youtube.com/watch?v=SbH7xw-JDec

The Definition of Obviousness

In his blog post titled “United States: Patent Law 106: When Is An Invention Obvious And When Is It Patentable?” Ryan L. Marshall discusses Section 103 as it pertains to the definition of obviousness. It prohibits patents “if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." In essence, this defines what obviousness means.

In addition to covering the definition of obviousness as we had discussed in class, the article specifically elaborated on evidence that inventors can use to support the nonobviousness of an invention. Referred to as “secondary considerations”, this can include:

·         the commercial success of products or processes arising from the invention,

·         long-felt but unsolved needs that are met by the invention,

·         failure of others to solve problems the invention achieves, and

·         unexpected results and superior properties imparted by practicing the invention.

One or more of these secondary considerations can be persuasive enough for a patent office or court to affect their decision.

The article also discussed the ambiguity of what “ordinary skill in the art” might mean. It compares “unpredictable” fields such as chemical and cosmetic arts, in which success is less obvious and people with ordinary skill in the art might not realize that the product will be successful, to more predictable fields requiring less skill where obviousness is more commonly determined.

Overall, I find Marshall’s summary of obviousness to be informative and an appropriate summary of Section 103. I think it would have been more interesting if he had gone into greater depth regarding how each of the secondary considerations might play into patent granting decisions, as I feel that they each might have a different weight.

I further discuss my thoughts on this topic at the following link:
https://www.youtube.com/watch?v=HiGn_Vw6RCw

Samsung's Successful Defense in Korea

On Wednesday, February 26, the [South] Korean Fair Trade Commission ruled against Apple’s compaint against Samsung. In 2012, Apple had asserted that Samsung was misusing standard-essential patents for 3G technology, stating that the patents were supposed to be licensed under fair, reasonable, and non-discriminatory (FRAND) terms. The KFTC responded to these assertions by saying that Samsung’s court actions do not break Korean antitrust law.

This decision runs counter to identical investigations conducted by agencies in other countries. Both the U.S. Department of Justice and the European Commission have voiced their concern over Samsung’s potential abuse of FRAND patents.

I had discussed Apple’s ongoing litigation against Samsung in a previous blog post, wherein I expounded on the Department of Justice’s decision to drop a similar investigation of Samsung, potentially as a form of foreign policy. It appears that the KFTC’s decision may have had more of a basis to throw out this claim, compared to its US and EU counterparts, as it may have determined that Samsung does not have monopoly power, due to over 50 companies holding a plethora of 3G-related SEPs. 

I further discuss my thoughts on this topic at the following link:
https://www.youtube.com/watch?v=1y8EXrjPS30

IPCom’s unsuccessful German litigation

Last Friday, February 28^th, the German Mannheim Regional Court threw out three cases filed by “patent troll” IPCom, which had filed complaints against Apple and HTC.  With two suits filed against Apple and a third against HTC, IPCom had aimed to monetize its patents purchased from Bosch involving 3G/UMTS wireless technology. The decisions to throw out these cases was made in three separate rulings by the aforementioned court, with IPCom’s Bosch patent portfolio covering standard-essential patents (SEPs) being involved in each one.

IPCom is a non-practicing IP licensing firm, which explicitly states on its website: “Our core business is the global licensing of patents from our own portfolio to producers in industry.” The firm has been comparatively unsuccessful in its legal recourses, but was successful in winning a settlement from Deutsche Telekom in 2013.

This case study in patent troll litigation is indicative of the larger issues at work. The FOSS Patents blog also covered this court decision, wherein author Florian Mueller discussed Apple’s historic success against patent trolls in Germany due to its repeated use of successful law firm Freshfields Bruckhaus Deringer. Mueller also highlights IPCom’s ongoing issues regarding its patent portfolio, in that many large manufacturers are working to invalidate various patents.

I further discuss my thoughts on this topic at the following link:
https://www.youtube.com/watch?v=1bWxfnU5p4E