At the end of last week, the Supreme Court granted petitions for certiorari for two more patent cases. That means that there will probably be six patent cases decided this term. And several of them are big.
Here’s a very quick summary of the issues in the cases the Court will hear (or has heard) this term:
This case was argued back in November. Essentially, Medtronic licenses patents from Boston Scientific for a type of pacemaker. Medtronic doesn’t want to have to pay royalties for new products that it doesn’t believe infringe the licensed patents, so it filed a A lawsuit in which one party asks the court to resolve an issue and declare its judgment. In patent litigation, a company that thinks it may be accused of infringing may choose to file a declaratory judgment action, asking the court to declare that the patent is not infringed and/or invalid. Filing a declaratory judgment can have tactical, procedural, or action against Boston Scientific, asking the court to declare that Medtronic’s new devices don’t infringe Boston Scientific’s patents. The issue is whether Medtronic has to prove its devices don’t infringe, or Boston Scientific has to prove that they do.
These two cases will be argued the same day, February 26, and they deal with essentially the same issue: when is a case “exceptional” within the meaning of the fee-shifting provision of the patent statute?
The See CAFC has set the standard extremely high: a winning defendant must prove by clear and convincing evidence that the patent owner’s claims were objectively baseless (meaning that no reasonable person would think they would succeed) and brought in subjective bad faith (meaning that the patent owner knows that claims are baseless). In practice, it’s rare that a defendant can meet this standard, and because the statute only awards attorneys’ fees but not expenses, it’s common for defendants to just walk away without asking for fees.
CLS Bank is being argued on March 31, and it is potentially the most important of all of the patent cases this term. The Court will consider whether software is eligible to be patented at all.
We’ll have more on this case in the coming weeks, because it could change the entire A generalized term referring to patents whose subject matter extends to computer-implemented code, which have been the subject of great controversy, including but not limited to how they interact with open source software. Although software patents are often denigrated, there is no accepted definition. However, there are a variety of methods for identifying software patents for empirical analysis. See Bessen, A landscape.
The Court just agreed to hear this case on Jan. 10. This case could have a big impact on patents for Internet inventions. The basic issue involves what’s called “divided infringement.” Divided infringement occurs if all the steps of a patented method are performed, but they’re split up among different parties. The See CAFC has held that those parties aren’t liable for patent infringement, unless they’re very closely connected.
That’s potentially a big hole in the Internet world, if all you have to do to avoid infringing is break up the steps.
In the case being appealed, the See CAFC said that it’s possible to be liable for inducing infringement even if the parties wouldn’t be liable for infringing directly because the infringement is divided.
Nautilus is another case with a lot of potential to change patent law, and the Court granted certiorari the same day as in the Akamai case. The Court will decide the standard for determining when a The section of a patent that describes the legal scope of the invention. Patent claims are supposed to establish the boundaries of the patentee’s entitlement to exclude. Under peripheral claiming as practiced in the U.S., claims establish the outer bounds of the patentee's privilege to exclude others. For further reading, see Burk and Lemley, Signposts or Fence Posts. is invalid for being too ambiguous. Right now, the See CAFC has created a standard that makes it nearly impossible to invalidate a The section of a patent that describes the legal scope of the invention. Patent claims are supposed to establish the boundaries of the patentee’s entitlement to exclude. Under peripheral claiming as practiced in the U.S., claims establish the outer bounds of the patentee's privilege to exclude others. For further reading, see Burk and Lemley, Signposts or Fence Posts. as being “indefinite” (that’s the term of art meaning that the claim is too ambiguous or vague).