Patent Infringement

Nintendo Scores Victory in Wii Controller Patent Lawsuit

May 17, 2013, by Mandour & Associates, APC

San Diego – Nintendo Co. Ltd. recently won a patent case against Motiva LLC when a panel of three judges rendered the decision that Nintendo’s Wii does not infringe on Motiva’s patents.  A Federal Circuit Court also rejected Motiva’s accusations that Nintendo had violated Section 337 of the Tariff Act of 1930, a trade remedy enacted to prohibit unfair methods of competition and wrongdoing in the importation of products into the United States.

The two patents at issue were No. 7,292,151 and No. 7,492,268, both entitled “Human movement measurement system”.  The patents center around “testing and training a user to manipulate the position of the transponders while being guided by interactive and sensory feedback.”  The patents are related to a wireless hand control and motion based system for controlling video games.

The Nintendo Wii interactive home video game, released in November of 2006, uses a motion sensitive game system in which the player gets up and enacts the movement demonstrated onto a screen.

Motiva, a hardware and software company dedicated to video games, filed its first complaint, currently on hold, against Nintendo with the U.S. District Court in 2008.  Motiva then filed the case with the U.S. International Trade Commission in 2010 asserting the same claims but lost the case in January of 2012, which was then appealed.

In the Federal Circuit appeal of the case, Motiva tried to argue that it needed to pursue the litigation against Nintendo as a prerequisite to luring investors.  But the three judge panel comprised of Judges Pauline Newman, Sharon Prost and Kathleen O’Malley did not buy into this idea.  All unanimously believed Motiva was seeking financial gain in initiating the litigation as opposed to initiating a product launch using the patent.

In essence, Motiva failed to meet the requirements of Section 337 because under the statute, “the importation or sale of an infringing product is illegal only if a U.S. industry producing an article covered by the relevant IP exists or is in the process of being established.”  As well, the panel was not convinced any company was waiting in line to sign a license agreement with Motiva.

The panel of judges stated, “The evidence demonstrated that Motiva’s litigation was targeted at financial gains, not at encouraging adoption of Motiva’s patented technology.”

Motiva is still hopeful it will prevail in U.S. District Court when that case resumes.

Tagged as: Motiva, Nintendo

Ericsson Ramps Up Patent Infringement Case Against Samsung

April 29, 2013, by Mandour & Associates, APC

San Diego – Last week Ericsson Inc. added eight additional patents to its patent infringement lawsuit against Samsung Electronics Co. Ltd.   The original complaint, filed last November in a Texas U.S. District Court, was spawned by Samsung’s refusal to renew a license it had to 12 Ericsson patents covering various telecommunications devices and related multimedia equipment.

Samsung responded to the claims with a counterclaim alleging that Ericsson infringed on Samsung technology covered in 12 other patents.

Ericsson’s has denied Samsung’s allegations and the addition of the 8 patents brings the total number of allegedly infringing patents to 19.  The alleged infringements relate to technology used in products such cell phones, televisions, computers, Blu-ray disc players and camera equipment.

According to Ericsson, Samsung originally licensed to the technology in 2001, and renewed the license in 2007.  Then more recently, Samsung allowed the license to lapse while refusing to pay the same rates others were paying, or FRAND (fair, reasonable and non-discriminatory) rates.  Instead of FRAND rates, Ericsson is alleging that Samsung offered Ericsson a much a smaller amount.

Samsung also has its own standard-essential patents which Ericsson has refused to license.  Samsung is claiming that the terms and fees in Ericsson’s license agreement were not at all reasonable accuses Ericsson of engaging in a “pervasive and pernicious pattern” while failing to agree to FRAND rates.  Samsung further finds Ericsson’s licensing methods unfair and designed to attempt to extort a “vastly unreasonable and discriminatory” payment, due to its exit from the mobile device market.

Ericsson’s reply to the countersuit is alleging that Samsung is holding out from allowing Ericsson to access to the standard-essential patents until Ericsson agrees to a rate more to Samsung’s liking, and one that is a reduction from the FRAND standard rates paid by others.   Ericsson alleges “Samsung rejected Ericsson’s offers and has consistently refused to grant Ericsson a license to the asserted Samsung essential patents unless Ericsson reduces its offered rate to an unreasonably low level.”

In an effort to secure more favorable licensing terms, it appears that both parties are trying to increase the downside for the other in the litigation.  Thus far however, it has not worked.

Tagged as: Ericsson, Samsung

WiFi Patent Lawsuit Against Southwest Airlines On Hold For Re-Examination

April 12, 2013, by Mandour & Associates, APC

San Diego – On Monday U.S. District Judge Gary Allen Feess announced a stay in a patent infringement lawsuit against Southwest Airlines Co. until the USPTO finalizes its re-examination of the patents cited in the Complaint.  Feess ruled that it doesn’t make sense to continue the case until the patent re-examination is complete.

Advanced Media Networks LLC originally filed the lawsuit against Southwest Airlines in California federal court last December.  The lawsuit concerns Southwest’s in-flight Internet service provider, Row 44 Inc. which is also named in the lawsuit.

Advanced Media believes that Southwest and Row 44 infringed on its patents, which involve technology for providing mobile telecommunications networks on commercial airline flights.  The two patents in suit, U.S. Patent No. 5,960,074 entitled “Mobile tele-computer network for motion picture, television and TV advertising production,” and U.S. Patent No. 6,445,777 entitled “Mobile tele-computer network” were approved for registration in 1999 and 2002, respectively.

Now however, the U.S. Patent & Trademark Office is re-examining the validity of the patents due to issues introduced by a third party who the USPTO felt “raised substantial new questions of patentability.”  This is the second re-examination of these two patents, which were also reviewed in 2010, and then affirmed.

Judge Feess compared this case to the recent federal court case between Apple Inc. and Samsung Electronics Co.  In the Apple v. Samsung case, the judge allowed the case to proceed to a jury decision even though a patent re-examination was still pending.   After the jury decided in favor of Apple, the USPTO made its decision that one of Apple’s patents in the case was invalid.

One of the attorneys for Row 44 agreed with Judge Feess that delaying the outcome of the trial would help everyone “avoid all this work” should the patents be deemed invalid.

Advanced Media argued that the case should move forward based on the fact that the patents may expire before the case goes to trial.

Judge Feess stated he would also delay a ruling on a Motion to Dismiss presented by Southwest and Row 44 at this time as well.

Tagged as: Advanced Media Networks, Row 44, Southwest Airlines

Apple Sued by THX for Infringing Speaker Patent

March 21, 2013, by Mandour & Associates, APC

San Diego – THX Ltd. filed a lawsuit against Apple, Inc. in California federal court claiming that the technology giant is infringing its patent that covers technology for narrow-profile speakers.

The complaint filed in San Francisco alleges that various Apple devices, including the popular iPhone 4 and the iPad, infringe U.S. Patent Number 7,433,483.  The ‘483 patent covers technology for narrow-profile speakers that can be used in small devices to improve sound without the need for external speakers.

San Rafael, CA-based THX told U.S. District Judge Jeffrey S. White that Apple is “among other things, making, using, importing, offering to sell, and/or selling in the United States products covered by one or more claims of the ‘483 patent…including but not limited to Apple’s iPhone4 and later models, as well as its iPad, and iMac products.”

THX’s patent, titled “Narrow profile speaker configurations and systems” was granted in 2008 and covers speakers that are meant to be used in small electronic devices including computers and flat-screen devices.  According to the patent description, the speakers can also be used in cars.  The narrow-profile speakers emit sound through a narrow opening and the size of the opening modifies the shape of the sound waves, altering the sound emitted, according to the patent description.

THX claims that Apple has been making and importing various electronic devices that infringe its ‘483 patent and that Apple’s patent infringement will cause irreparable harm to THX and therefore the technology giant must be stopped immediately.

“Apple’s infringement of the ‘483 patent has cause and will continue to cause THX both monetary damage and irreparable harm for which it has no adequate remedy at law.”

THX is seeking a declaratory judgment that Apple has infringed the ‘483 patent, a permanent injunction prohibiting Apple from continuing to infringe the patent, damages, prejudgment interest, costs and attorney fees.

THX is a cinema acoustics company started by “Star Wars” creator George Lucas.  THX began after Lucas realized that the state-of-the-art technology used to record sound while filming was being lost on cinema audiences, as theaters were using antiquated acoustic technology incapable of playing the sound the way the producers had envisioned.

The company went on to revolutionize the way movies are heard on both the big screen and more recently on devices in the home.  Today the company is known for its certification standards for cinema sound quality.

 

Tagged as: Apple, THX

Qualcomm, Microsoft Say Google Isn’t Upholding FTC Patent Agreement

February 28, 2013, by Mandour & Associates, APC

San Diego – Qualcomm, Inc. and Microsoft Corp. told the Federal Trade Commission that Google is seeking injunctions to prevent competitors from selling goods that infringe its stand-essential patents, even though Google made an agreement with the FTC that it would not seek injunctions against companies that are willing to license the patented technology.

Qualcomm, Microsoft, Ericsson and  Apple all made public comments last week saying that Google is not living up to the promises it made in its deal with the FTC regarding how it handles the standard-essential patents it obtained when it bought Motorola Mobility Inc.

Google’s settlement with the FTC included a provision that prohibits Google from pursuing injunctions against companies that are willing to license the patents.  Apple and Microsoft, both of which have been in patent licensing wars with Google, said that Google is still seeking injunctions against them and using the threat of injunctions as a tool in negotiating past licensing fees.

“Google continues to pursue injunctive relief against Apple in federal court and seeks to exploit the injunction it obtained and enforced against Apple in Germany,” Apple said.

Microsoft requested the FTC clarify the pending consent decree to demand Google to abandon all injunctive relief actions that have already been filed.

“We assume that Google’s refusal to withdraw its pending claims for injunctive relief means that it interprets the proposed order to permit it to continue its existing claims for injunctive relief, notwithstanding the commission’s public statement to the contrary,” Microsoft said.  “Clarification of the decree in this regard would be appropriate.”

The companies expressed concern that if the consent decree were to be adopted for all standard-essential patent owners there would be far-reaching consequences and the companies urged the FTC to limit the proposed consent decree just to Google’s case.

“Ericsson believes that the specific procedures described in the order, if widely adopted, may cause unintended and undesirable consequences,” Ericsson said.  “Unnecessary restrictions on the availability of injunctive relief against unwilling licensees may discourage companies such as Ericsson from contributing to open standards.”

Trade groups such as the American Intellectual Property Law Association and the Intellectual Property Owners Association also opposed the consent decree.  The groups expressed concern that the consent decree limits the patent owners’ First Amendment right to seek injunctive relief from the courts in the case of infringement.

Tagged as: Apple, Ericsson, Microsoft, Qualcomm

eBay Sued for Infringing Online Auction Patent

February 20, 2013, by Mandour & Associates, APC

San Diego – eBay Inc. was sued in the Southern District of California in San Diego for allegedly infringing patents that cover technology related to the display of auction information online.

Patent-holding company Advanced Auctions LLC took issue with the way in which eBay displays price and time information for auctions held on its website.  Advanced Auctions specifically pointed to the technology eBay uses to update bid and pricing information in the last hour of an auction as infringing its patents.

In the complaint filed in San Diego, Advanced Auctions alleges that eBay’s website shows the highest current bid and the time remaining in the auction for every active auction.  Before the final hour of the auction, the website does not automatically update this information.  It is up to the user to manually refresh the browser to get the most current time and bid information.

Once the last hour of the auction hits, the highest bid and time remaining in the auction is automatically updated by the website, which Advanced Auctions claims infringes its “Real Time Auction with End Game” patent.

Del Mar, California-based Advanced Auctions claimed it sent a cease and desist letter to eBay regarding its alleged patent infringement, but the company claims eBay never responded to the letter or ceased using the technology that Advance Suctions claims infringes on its patents.

According to the complaint, eBay’s 2012 annual report shows that 37 percent of the San Jose, California-based online auction house’s gross merchandise volume was handled through its online auctions.  Since those auctions use Advanced Auctions’ patented technology, the company claims, eBay is also contributing to direct infringement by its users.

Advanced Auctions alleged that since eBay has continued to use the automatic auction updating technology after it received notice of Advanced Auctions’ patent, eBay’s infringement is willful.

Advanced Auctions is asking the court for a judgment that eBay infringed its patents, an injunction preventing eBay from continuing to infringe its patent, an accounting of damages suffered by Advanced Auctions, treble damages, attorney’s fees and costs.

Judge John A. Houston of the Southern District of California in San Diego will hear the case.

Tagged as: Advanced Auctions, ebay

Krill Oil Manufacturer Sues Competitors for Patent Infringement

February 11, 2013, by Mandour & Associates, APC

San Diego – Neptune Technologies & Bioressources Inc. launched a complaint with the U.S. International Trade Commission against several competing companies, claiming their krill oil products infringe on a patent the company holds for its products.

Neptune produces krill oil tablets for use as a dietary supplement.  The company receives krill from the Antarctic Ocean and uses its patented extraction process to pull the maximum amount of omega-3 polyunsaturated fatty acids from the krill.

The complaint claims that the krill-based products made and sold by Aker BioMarine AS, Avoca Inc., Enzymotec Ltd., Olympic Seafood AS and their related entities directly or indirectly infringe U.S. Patent Number 8,278,351, which protects the extraction process and formula for Neptune Krill Oil.

Neptune President and CEO Henri Harland released a statement that said, “The filing of the complaint is consistent with our philosophy that infringing competitors must be held accountable for their actions.  This approach will enhance our business position as the leader and the innovator in this market”

Harland went on to say, “When a company infringes our patents, without our permission or a license, we owe it to our shareholders and investors to protect the patents through every means available to us.”

The complaint requests an order preventing the companies from importing, marketing or selling their infringing krill-based products in the United States.  The ITC is expected to begin investigating the case this month and will take 15 to 18 months to complete the investigation.

Neptune filed the complaint just days after the U.S. Patent and Trademark Office allowed a second continuance on the ‘351 patent and another patent related to the extraction and production of krill oil for dietary supplements.  The continuation application consisted of a single claim related to products made using Antarctic krill oil and covers most products containing krill oil that are currently sold in the U.S.

Neptune claims it provided the USPTO with all prior art during the prosecution process.  However, Aker BioMarine has requested that the patents be reexamined.

The Omega-3 fatty acids found in krill oil are known for their benefits on brain and heart health and are have been proven to be effective on joint and women’s health.

Tagged as: Aker BioMarine AS, Avoca, Bioressources, Enzymotec, Neptune Technologies

Allergan Wins Patent Infringement Lawsuit Against Generic-Drug Manufacturers

January 30, 2013, by Mandour & Associates, APC

San Diego – The Federal Circuit ruled in favor of multi-specialty health care company Allergan, Inc., upholding the district court’s ruling that two generic-drug manufacturers would infringe the Irvine-based pharmaceutical company’s patent if the companies produced a generic form of the drug Lumigan.

The Third Circuit agreed with the trial court that after Barr Laboratories, Inc. and Sandoz, Inc.’s expert testimony was discredited during the trial, the companies failed to prove their claims that Allergan’s patent should not be valid due to obviousness and the fact that it was based on prior art.

Judge Evan Wallach wrote in the opinion released Monday, “the district court did not err in finding that common sense and logic were not sufficiently illuminating in this case to carry Barr and Sandoz’s burden of proving the obviousness.”

Monday’s decision is another win for Allergan against Israel-based Barr Laboratories and Germany-based Sandoz in their ongoing patent disputes and upholds the September 2011 ruling from U.S. District Judge Sue L. Robinson that stated the two generics makers would infringe Allergan’s patents if they began making the generic version of Lumigan.

Judge Robinson claimed that the two generics makers failed to prove that Allergan’s patents were invalid and went on to say that the defendants’ expert witness Dr. Ashim K. Mitra “was eviscerated on cross-examination.”

Allergan filed the lawsuit in May 2009 against Barr Laboratories, which was acquired by Teva Pharmaceuticals USA Inc. in 2008, after the company filed an abbreviated new drug application with the U.S. Food and Drug Administration for a generic form of Lumigan.  Allergan filed a similar suit against Novartis International AG subsidiary Sandoz shortly after.  The two cases were combined in April 2010.

Due to the ruling, Sandoz and Barr will have to wait until the Lumigan patent expires in August 2014 before the companies can submit their abbreviated new drug application to the U.S. Food and Drug Administration to get approval to sell a generic form of Lumigan in the United States.

The patent-in-suit is U.S. Patent Number 5,688,819.  Lumigan is used to treat pressure that develops inside the eye in glaucoma patients and brings in more than $400 million in annual sales.

Tagged as: Allergan, Barr Laboratories, Sandoz

Google’s FTC Deal Could Alter Landscape of Patent Wars

January 9, 2013, by Mandour & Associates, APC

San Diego – The deal Google struck with the Federal Trade Commission last week has received a lot of attention and many are hoping it will curtail the ongoing technology patent wars, which most agree have gotten out of control.

In the deal struck between the two entities, the FTC ruled that Google has not violated antitrust law, much to the disappointment of many of the company’s critics.  The decision came after a two-year investigation of the way Google handles licensing of its industry-standard patents to its competitors.  Google had to agree to allow its competitors access to its industry standard patents, something it had previously fought hard to prevent.

FTC chairman Jon Leibowitz said during a press conference that the patent agreement could serve as a model for other patent disputes and it could reduce patent litigation, at least in the technology sector.

As Google and Apple, two of the largest players in the technology world, spent more money on acquiring and protecting their intellectual property last year than they did on research and development, anything that can decrease those costs may benefit the companies and their customers.

At the center of the deal between the FTC and Google is the technology giant’s purchase of Motorola Mobility, which Google bought in part for Motorola’s 17,000 tech patents.  Many of these patents are standard-essential patents, which Google is required to license to its competitors on fair, reasonable, and non-discriminatory (FRAND) terms.

The FTC’s investigation began when Motorola reneged on its agreement to license its patents according to FRAND terms.  When Google acquired Motorola, it continued to refuse licensing of industry-standard patents and began seeking injunctions to prohibit competitive products that contained its patented technology from entering the country.  Conduct like this may decrease competition and increase prices, which could hurt consumers.

Google senior vice president and chief legal officer David Drummond said, “We will seek to resolve standard-essential patent disputes through a neutral third-party before seeking injunctions.  This agreement establishes clear rules of the road for standard-essential patents going forward.”

Though the FTC’s deal with Google is not binding on any other company, it is speculated that other technology companies will use the terms of the agreement as a guide for the licensing of industry-standard patents.

Tagged as: FTC, Google

Apple, LG Electronics did not Infringe Alcatel-Lucent’s Patents

December 14, 2012, by Mandour & Associates, APC

San Diego – A jury in San Diego found that Apple Inc. and LG Electronics Inc. did not infringe patents for electronic devices including phones and computers owned by Multimedia Patent Trust, an Alcatel-Lucent SA subsidiary.  The verdict was issued Thursday after a trial that lasted more than two weeks in the Southern District of the United States District Court. The trial was presided over by U.S. District Judge Marilyn L. Huff.

The Paris-based Multimedia Patent Trust filed the lawsuit in December 2010 and it asked the jurors to award $9.1 million in royalty damages from LG Electronics and $172.3 million in royalty damages from Apple.

The Plaintiff accused LG Electronics of infringing two of its patents and Apple of infringing three of its patents for video-compression technology, which aids in sending data via satellite and over the Internet and allows for increased media storage on DVDs and Blu-Ray disks. The patent trust claimed the patents were infringed by multiple devices including LG Electronics’ Chocolate Touch VX8575, Touch AX8575, Bliss, UX700, Mystique UN610, Samba LG8575, and Lotus Elite LX610 as well as Apple’s MacBook, iMac, iPhone, iPod, and iPad. The patent trust also claimed that at least 33 different companies have paid more than $190 million to license the patents in question and Apple and LG Electronics should have to pay the licensing fees as well.

Apple and LG Electronics argued that they had in fact compensated the Multimedia Patent Trust because they are members of an industry-wide patent pool. The companies also claimed that the trust was attempting to expand the scope of its expired patents to cover technology that it does not own.

Though Apple and LG Electronics have a verdict, the two-year patent war is far from over between the companies. The patent trust has already motioned for mistrial, sighting the behavior of Apple’s counsel during closing arguments as reason to retry the case. Apple received the ruling just hours after losing a separate, unrelated case against MobileMedia, a subsidiary of Sony, MPEG-LA and Nokia. In that case a Delaware jury found Apple had infringed three patents dealing with the operation of the phone’s camera and call handling.

Tagged as: Apple, LG Electronics

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