October 25, 2012, by Mandour & Associates, APC

Musical instrument and equipment makers Korg Inc. and Yamaha Corp. and retailers such as Guitar Center Inc., Sam Ash Music Corp. and Best Buy Co. are infringing the San Diego, Calif.-based e.Digital Corp.’s patents for recording device technology, e.Digital said in a series of new complaints in the Southern District of California on Monday.

Korg, Yamaha and Diasonic Technology Co. are manufacturing musical recording devices and samplers that infringe U.S. Patent Numbers 5,839,108, 5,842,170, 5,742,737, and 5,491,774, while the retailers are selling those same devices, e.Digital alleges. The patents cover the use of flash memory technology in recording devices.

The accused products include Yamaha’s Pocketrak CX, C24, W24 and 2G portable recorders; Korg’s MR-2 and SOS portable recorders, KAOSS Pads and Kaossilator samplers; and Diasonic’s DDR series of products.

Other companies targeted in the lawsuits include J & R Electronics Inc., Sweetwater Sound Inc., Kraft Music Ltd. and Sec Tech Enterprises LLC.

“e.Digital’s inventions have opened the door to the widespread use of flash memory in many of today’s popular electronic products,” e.Digital President and CEO Fred Falk said in a statement Tuesday. “The strength of our fundamental intellectual property has been validated through licensing and settlement agreements and through reexamination by the U.S. Patent and Trademark Office.”

e.Digital claims its strategy is to leverage the knowledge and experience it has gained from prior enforcement actions to streamline, accelerate and maximize patent licensing efforts. The company devised a number of forward-looking flash memory technologies from the early 1990s onward.

“Our patents are essential to many consumer electronic products and their use is growing in importance with the proliferation of flash memory,” Falk said. “We consider our intellectual property valuable company assets and we are committed to protecting and enforcing them.”

e.Digital has previously sued a number of companies over its recording technology patents including Samsung Electronics Co., Avid Technology Inc. and Casio America Inc, many of which chose to settle and license the technology.

October 24, 2012, by Mandour & Associates, APC

San Diego – The U.S. Department of Justice is investigating Samsung Electronics Co. for antitrust violations related to its licensing of standard-essential patents, Apple Inc. revealed in a Monday filing with the U.S. International Trade Commission.

The ITC administrative law judge overseeing a Section 337 patent case over the companies’ tablet and smartphone products was right to find to find that Samsung’s claims in the case failed on the patent merits, Apple said. The ALJ should have found, though, that Samsung was barred from even asserting its claims in the ITC due to its commitments to license its standard-essential patents on fair, reasonable and nondiscriminatory terms, according to Apple.

The ITC’s issuance of exclusion or cease and desist orders in matters involving FRAND-encumbered patents like those Samsung is asserting can cause substantial harm to competition, and Congress and the executive branch have taken notice, Apple says.

“Regulators likewise have continued to scrutinize these problems, including in the specific context of Samsung’s conduct: the Department of Justice has opened an investigation into the manner in which Samsung has used—or misused—its declared-essential patents, as has the European Commission,” Apple says.

The EC has been probing Samsung’s possibly anti-competitive use of standard-essential patents since January.

Apple also pointed to a June statement by the U.S. Federal Trade Commission noting the potential for competitive harm. It additionally highlighted a statement that same month by several members of Congress saying that allowing companies to commit license patents on FRAND terms and then seek an exclusion order despite a breach of that commitment would raise serious policy concerns.

At the hearing before the ALJ, Apple introduced extensive evidence that Samsung’s assertion of declared-essential patents was incompatible with Samsung’s FRAND commitments and the public interest.

“Allowing Samsung to renege on its FRAND commitments through the issuance of an exclusion order would have consequences extending beyond this case, and the harm to the public interest would be severe,” Apple says.

If the ITC decides to review the initial determination of non-infringement in the case, it should also address the statutory public interest factors that preclude issuance of an exclusionary remedy for “these FRAND-committed, untimely disclosed, exhausted patents,” Apple says.

October 23, 2012, by Mandour & Associates, APC

San Diego – Microsoft Corp. is facing a new patent infringement action from Emblaze Ltd. over devices that use its Windows 7 operating system like the Xbox 360, which Emblaze alleges violate its patent rights for an Internet streaming method.

Israel-based Emblaze sued Microsoft in the Northern District of California on Friday asserting its rights to U.S. Patent Number 6,389,473, which covers technology used for real-time broadcasting over a network like the Internet.

Emblaze first unveiled the technology described in the ’473 patent in a live video streaming broadcast of the 1998 White House annual Easter egg roll. The invention allows broadcasting of live audio and video to multiple devices, saves on data traffic, does not require devoted streaming servers and alllows reliable streaming even through firewalls, according to the company.

Microsoft has been directly infringing the ’473 patent by making and selling products including the Xbox 360 and other devices than run on either the Windows 7 or Windows Phone 7.0 operating systems to view live, smooth streaming multimedia content.

Specific infringing features in the accused devices include Microsoft’s Internet Information Server 7.0, Windows Azure servers, Silverlight 2.0 and Microsoft Media Platform Player Framework.

Emblaze says it offered Microsoft a license for the ’473 patent in August 2008, and so Microsoft has known about the patent for at least that long.

Nevertheless, in 2009 Microsoft announced the debut of its live smooth streaming application. Emblaze again wrote to Microsoft in February 2010 asserting its rights in the patent and again offered a license agreement.

“Discussions with Microsoft regarding a possible license agreement have failed, and to date, Microsoft has declined to take a license under the ’473 patent,” the complaint says.

Microsoft has also taken active steps to induce others to engage in infringement of the patent, according to Emblaze.

Emblaze has already filed a similar complaint against Apple Inc. for infringing the same patent with Apple’s HTTP Live Streaming Application used for Apple’s iPhone, iPod Touch and iPad devices as well as in Apple’s Mac OS, the company says.

“Emblaze has made substantial investment into research and development to build a rich portfolio of intellectual property over many years,” Emblaze Executive Chairman Naftali Shani said in a statement Tuesday. “While we are happy to license our technology to third parties, we will vigorously defend our rights and our competitive position.”

October 18, 2012, by Mandour & Associates, APC

San Diego – The United Kingdom’s Court of Appeal on Thursday upheld a July ruling by a High Court judge that found Samsung Electronics Co. did not infringe Apple Inc.’s designs when creating its own tablets, which Apple had challenged as part of the companies’ global patent war.

The case “is all about, and only about, Apple’s registered design and the Samsung products,” the Court of Appeal said, noting that no patent claims were at issue in the immediate ruling.

In July Judge Colin Birss of the High Court found no infringement on Samsung’s part, saying Samsung’s tablets do not have the same “understated and extreme simplicity” as the Apple design.

“They are not as cool,” Judge Birss said.

The Court of Appeal found Judge Birss’ reasoning to be sound, saying it could find no material error in his decision.

“If the registered design has a scope as wide as Apple contends it would foreclose much of the market for tablet computers.” the appeals court said. “Alterations in thickness, curvature of the sides, embellishment and so on would not escape its grasp. Legitimate competition by different designs would be stifled.”

The appeals court said a hand-held tablet necessarily requires a flat transparent screen, rounded corners are unremarkable and have some obvious functional value, and a border of some sort is needed for functional reasons.

“There is some design freedom as regards ornamentation, the rim, the overall shape (rectangular or with some curved sides) but not a lot,” the Court of Appeal said. said.

Judge Birss also ordered Apple in July to publish advertisements stating that Samsung had not, in fact, copied its designs as alleged.

“The grant of such an order is not to punish the party concerned for its behavior,” the Court of Appeal said. Nor is it to make it grovel — simply to lose face. The test is whether there is a need to dispel commercial uncertainty.”

The Court of Appeal’s decision is valid throughout Europe, though it will likely be appealed to the UK’s Supreme Court.

October 16, 2012, by Mandour & Associates, APC

San Diego – The U.S. Patent and Trademark Office issued Apple Inc. an array of patents on Tuesday, including one that would allow a device to detect whether an individual user is supposed to be using it and stop unauthorized access.

U.S. Patent Number 8,289,130, titled “Systems and methods for identifying unauthorized users of an electronic device,” covers a system capable of identifying particular activities that may indicate suspicious behavior.

In some embodiments, an unauthorized user can be detected by comparing the identity of the current user to the identity of the device’s owner. When an unauthorized user is detected, various safety measures can be taken.

A photograph of the current user can be taken, a recording of the current user’s voice can be recorded, the heartbeat of the current user can be recorded, or any combination of those factors that can then be compared to the corresponding likeness of the authorized owner, according to the patent description.

Activities such as entering an incorrect password a predetermined number of times in a row, hacking, “jailbreaking,” unlocking, removing a SIM card or moving a predetermined distance away from a synced device can all also be used to detect an unauthorized user under the patented system.

Information related to the identity of the unauthorized user, the unauthorized user’s operation of the electronic device, or the current location of the electronic device can be gathered with the patented method. Functions of the electronic device can also be restricted.

In other embodiments, the device owner can be notified of the unauthorized user by sending an alert notification through any suitable medium, such as a voice mail, e-mail, or text message.

“If the electronic device is lost or stolen, the loss of the electronic device can be exceedingly disruptive to the owner’s peace of mind and security,” the patent description says. “Thus, the owner may desire to find out where the lost electronic device is located or who may have gained possession of or stolen the electronic device.”

The application for the patent was filed in February 2009. The inventors listed are Taido L. Nakajima of Cupertino, Calif., Pareet Rahul of Markham, Calif. and Gloria Lin of San Ramon, Calif.

October 8, 2012, by Mandour & Associates, APC

San Diego – Samsung Electronics Co. is seeking patent protection for a way to have an electronic device like a smartphone record and summarize the operations of a user’s daily life and present the results in story form, according to a patent application the U.S. Patent and Trademark Office published last week.

The invention, entitled “Apparatus and method for generating story according to user information,” includes an information collection unit, an analysis unit, a story generator, and a display unit, according to the patent abstract.

The information collection unit collects log information including a user’s daily life information from at least one electronic device. The analysis unit analyzes the log information collected from the information collection unit and decides at least one topic representing the user’s daily life information.

The story generator generates at least one sentence representing the user’s daily life information using the topic decided in the analysis unit. The display unit then displays the sentence generated in the story generator.

The information gathered and presented in story form could include data on the weather, GPS latitude and longitude information, blog and social media data, call records, text and multimedia messages, schedules and calendars, address book entries and more. Video recordings, lists of recently played music files, TV viewing information and other records of habits could also be monitored and included.

The development of wireless technology has made it possible to continuously collect information about a mobile device user. A device can now accordingly provide its user with a variety of services on the basis of the data collected as the user goes about her daily life, the patent description says.

Current devices, however, do not conveniently present such information, and a need exists for a service that can automatically gather such data and summarize it automatically into story form, the patent description says.

The application generally describes the story generating apparatus in terms of a portable phone, but the apparatus could also be a computer, digital camera, home electronic appliance, projector, home server, digital video recorder, satellite broadcasting receiver or television receiver, according to the patent description.

The patent application was filed on March 30 by inventors Hee-Seok Jeong, Young-Hee Park and Jeong-Won Cha of South Korea’s Changwon National University.

October 4, 2012, by Mandour & Associates, APC

San Diego – Women’s health company Hologic Inc. announced Thursday that its Gen-Probe subsidiary secured a summary judgment win last week in its patent infringement lawsuit in San Diego federal court against Becton Dickinson over sexually transmitted disease tests, paving the way for a trial on damages.

Judge Roger T. Benitez found that the use of BD’s ProbeTec Qx CT/GC chlamydia and gonorrhea assays on the BD VIPER System with XTR Technology, and the use of BD’s GBS assays on the BD MAX System, infringe three of Gen-Probe’s patents covering automated nucleic acid testing.

The court also ruled that BD’s specimen collection products, used in conjunction with its ProbeTec Qx CT/GC assays, infringe another Gen-Probe patent covering penetrable caps.

Judge Benitez shut down BD’s summary judgment motion to dismiss Gen-Probe’s infringement claims based on an alleged lack of standing to sue, as well as BD’s summary judgment motions seeking to invalidate the asserted patents. He found that BD did not infringe a fourth automation patent and a second penetrable cap patent.

A jury trial on the remaining issues in the case is scheduled to begin on Dec. 4. The issues to be decided at trial include whether BD is liable for inducing its customers to infringe Gen-Probe’s patents, whether BD’s infringement has been willful, and the monetary damages owed Gen-Probe. BD’s defenses, which include challenges to Gen-Probe’s standing to sue and the validity of the patents, will also be heard.

Gen-Probe has asked Judge Benitez to treble the monetary damages and enter a permanent injunction to prevent further infringement, Hologic said.

“We are pleased with the court’s decision, which we believe places us in a strong position as we prepare for a jury trial on the remaining issues later this calendar year,” Hologic Senior Vice President, Chief Administrative Officer and General Counsel Mark Casey said.

Gen-Probe, which was acquired by Hologic in August, originally filed its patent infringement lawsuit against BD in October 2009.

Hologic suffered a loss in another major medical patent lawsuit in September, when a Massachusetts federal jury handed down a $4 million verdict in favor of Smith & Nephew Inc. in its patent infringement case against Hologic over a medical tissue removal device.

October 2, 2012, by Mandour & Associates, APC

San Diego – Samsung Electronics Co. sought Monday to add the recently introduced iPhone 5 to the list of accused devices in its counterclaims to Apple Inc.’s current patent infringement lawsuit against it in California federal court over various smartphone and tablet products.

The iPhone 5 was not yet available when Samsung submitted its original claims in June, but the company has acted diligently to investigate it since its Sept. 21 introduction to the market and bring it into the current action, Samsung says. Apple will not be prejudiced in any way by the addition of the iPhone 5 to the lawsuit, it says.

The smartphone has the same accused functionality as the previously implicated versions of the iPhone, so the proof of the iPhone 5′s infringement of the patents in suit is the same as for other Apple devices already include din the litigation, according to Samsung. The addition of the phone would not cause any delay or materially affect the infringement analysis, it says.

Samsung told Apple on Sept. 18 that it intended to add the iPhone to the list of accused products, and has already provided Apple with its proposed amended infringement contentions, it says.

The case is early in the discovery period, and Apple will have plenty of time to prepare its defenses to the proposed iPhone 5 allegations, Samsung says. Amendment of the claims would also preserve judicial resources, because it is more efficient to take care of all infringement issues between the parties before a single court, it says.

Samsung’s proposed new allegations would claim the iPhone 5 infringes two Samsung standards patents and six feature patents.

“Samsung could not have known whether the rumored iPhone 5 would practice its patented technologies when it filed its infringement contentions on June 15,” the company’s motion says. “Samsung has now confirmed that the iPhone 5 has the same accused functionality as the previously accused versions of the iPhone, and Samsung is not seeking to add any new patent claims, so proof of infringement by the iPhone 5 will be the same.”

Apple, for its part, asked the California court to allow it to bring over 20 new Samsung products into its own infringement complaint earlier in September.

The current case follows on the heels of a $1 billion jury verdict against Samsung in August in an earlier-filed patent infringement case between the two concerning different patents used in the same products. Last month Apple asked the court to tack on an addition $707 million to that amount.

The global smartphone and tablet patent war between the two companies has produced results in favor of both sides in different jurisdictions. Last month a U.S. International Trade Commission administrative law judge ruled in favor of Apple in Samsung’s patent challenge there, while a German court rejected Apple’s claims that Samsung and Motorola Mobility LLC’s Android devices infringe certain European patents.

September 28, 2012, by Mandour & Associates, APC

San Diego – The Federal Circuit on Friday shot down several generic drug makers’ appeal of an injunction against selling their generic versions of Pozen Inc.’s patented migraine medicine Treximet.

Par Pharmaceutical Inc., Alphapharm Pty Ltd. and Dr. Reddy’s Laboratories Inc. had appealed a Texas federal judge’s ruling that the asserted claims of Pozen’s U.S. Patent Numbers 6,060,499, 6,586,458 and 7,332,183 were valid and infringed by Par and Dr. Reddy’s’ Abbreviated New Drug Application filings with the U.S. Food and Drug Administration.

The district court did not err in rejecting the generics makers’ claims that the patents are invalid as obvious, nor did the court err in its infringement finding, the Federal Circuit ruled in affirming the Texas court’s decision and related injunction.

Pozen developed a method for treating migraines by combining two drugs, sumatriptan and naproxen, in a single tablet, which it markets as Treximet in conjunction with GlaxoSmithKline. Sumatriptan was developed in the late 1980s and is widely accepted as an effective medicine for migraines, but does not prevent the reoccurrence of migraine symptoms. Naproxen, meanwhile, is a well known nonsteriodal anti-inflammatory drug.

On appeal, the generics makers challenged the validity of the ’499 and ’458 patents in light of four prior art references. They also challenged the validity of the ’183 patent in light of the ’499 patent and prior art.

The generics companies asked the Federal Circuit to hold the ’499 patent invalid for lack of written description, and challenged the district court’s determination that the ’183 patent was infringed.

“Appellants failed to rebut the presumption of validity of issued patents,” the Federal Circuit ruled. “Additionally, the appellants provided no basis for unsettling the district court’s finding on infringement.”

The appeals court accordingly affirmed the district court’s injunction barring the three generics makers from making, using, importing, selling or offering to sell their generic Treximet products, or inducing others to do so, until the expiration of the three Pozen patents.

Circuit Judge Raymond Clevenger dissented in part from the Federal Circuit’s majority opinion, saying the district court erred in finding infringement of one claim of the ’183 patent under the doctrine of equivalents.

September 25, 2012, by Mandour & Associates, APC

San Diego – SK Hynix Inc. on Monday settled Intellectual Ventures Inc.’s litigation against it over semiconductor patents, after winning a court ruling Friday in the Northern District of California that will cap the royalties it owes Rambus Inc. for infringing other patents for memory devices.

Hynix and Elpida Memory Inc., which also settled with IV Monday, were named as defendants in IV’s patent infringement action filed in December 2010 in the District of Delaware.

Both companies and some of their customers were also named as respondents in an investigation by the United States International Trade Commission of certain memory device manufacturers based upon an IV complaint filed in July 2011, and in a related action in the Western District of Washington filed the same month.

“IV has built a world-class portfolio of semiconductor patents, and our preference is to sign license agreements and form productive, long-standing relationships with innovative companies rather than to litigate,” IV vice president and chief litigation counsel Melissa Finocchio said Monday.

The Friday ruling in the Rambus case, meanwhile, came in large part due to the district court’s finding that Rambus spoiled evidence in bad faith or at least willfully.

The court concluded that the sanction most commensurate with Rambus’s conduct is to strike from the record evidence supporting a royalty in excess of a “reasonable, non-discriminatory” royalty.

“Such a remedy recognizes that Rambus’s patents have been determined to be valid while at the same time recognizing that Rambus’s spoliation of evidence should preclude it from entitlement to a royalty that places Hynix at a competitive disadvantage,” Judge Ronald M. Whyte said.

The evidence does not support a conclusion that Rambus deliberately shredded documents it knew to be damaging, but Rambus did willfully destroy records when litigation was reasonably foreseeable, the judge said.

“That destruction was part of a litigation plan,” he said. “The destruction involved the shredding of large volumes of documents on multiple occasions. And finally, Rambus made no effort to log or record what was destroyed.”

Rambus itself welcomed the decision, despite the limit on the royalty rate, for confirming that it does indeed deserve royalty payments for the use of its patented technology

“This is a positive result as it is consistent with what we’ve been seeking all along — reasonable compensation for the use of our patented inventions,” Rambus senior vice president and general counsel Thomas Lavelle said Sunday. “We appreciate the court’s extensive efforts in working through years of complex arguments. While this decision does not provide SK Hynix with a going-forward license, we are hopeful it will lead to putting this matter behind us completely and allow us to reach reasonable agreements.”

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