Seen and heard

A round-up of IP-related quotes, observations and opinions from the recent past …

Chinese smartphone maker Oppo has made its first patent purchase of 2018 – and Intel is the seller. According to USPTO records, the Dongguan-based smartphone vendor obtained 37 US assets in one assignment on 17th January (the transfers were recorded on Sunday). All the patents involved were formerly owned by Intel, and they were assigned to an entity named Sky Royal Trading Limited before landing in Oppo’s possession. Sky Royal Trading is a Hong Kong registered company with no previous patent assignment record or other online footprint. It’s not clear whether it is a broker or a bespoke Oppo patent acquisition vehicle.

IAM blog, February 1

Like indefiniteness, enablement, or obviousness, whether a claim recites patent eligible subject matter is a question of law which may contain disputes over underlying facts.

Writing for the majority in Steven E Berkheimer v HP Inc, FKA Hewlett-Packard Company, Judge Moore of the Court of Appeals for the Federal Circuit (CAFC) makes a key ruling on how claims are reviewed in determining whether they are patent eligible, February 8

In a motion filed last week, Samsung asked Judge William Orrick to issue an anti-suit injunction ordering Huawei not to enforce its Chinese court order. The Chinese patents-in-suit, Samsung claims, are part of the worldwide portfolios involved in the California contractual dispute between the two parties; they are also counterparts to patents asserted by Huawei against Samsung in the US. Enforcing the Chinese court order would violate US antitrust law forbidding “hold up”, breach Huawei’s FRAND obligations, and “threaten a major disruption to US commerce”, says the brief.

Samsung asks a US district court judge to stop Huawei from enforcing an injunction that the Chinese tech giant won in China earlier this year. IAM blog, February 9

Identifying 4,336 filings that have been submitted in various parts of the world, the report counts 410 granted CRISPR patents, and 3,926 pending or lapsed applications. While filings date back more two decades, they increased greatly after the 2013 discovery of the CRISPR Cas9 genome editing tool, the report finds. It also highlights the diverse technological claims made in existing applications, showing that CRISPR source is covered by 493 patent families, various CRISPR components by a cumulative total of 3,035 families, and related mechanisms covered by a total of 1,300 patent families. The report counts 1,861 and 2,451 patent families pertaining to various ways of delivering and applying CRISPR.

The IAM blog reports on a new report from iRunway on the global patent landscape around the CRISPR gene editing technology, February 13

I respectfully disagree with the majority’s broad statements on the role of factual evidence in a §101 inquiry. Our precedent is clear that the §101 analysis is a legal question. In a manner contrary to that standard, the majority opinion attempts to shoehorn a significant factual component into the Alice §101 analysis.

In a dissent in Aatrix Software v Green Shades Software, Judge Reyna of the CAFC criticises the court’s ruling that questions around patent-eligible subject matter may not simply be a matter of law, February 14

In fact, between 2007 and 2017 just 42% of NPE actions identified by Darts-IP actually involved an NPE bringing an infringement suit. That equates to around 475 suits filed by NPEs in the whole of Europe in 10 years. Last year, approximately 73 suits were filed, while 71 were filed in 2016. Overall, Darts-IP tells us that it has identified around 3,000 patent suits filed in total in Europe in 2016 and 2017. Thus, NPEs were responsible for filing under 5% of European patent suits in the last two years.

The IAM blog breaks down a report by Darts-IP looking at the activities of non-practising entities (NPEs) in Europe, February 20

Over the past year, the company has focused on streamlining its cost structure and putting into place a management structure that maximizes the performance of the existing business, and also has started to develop new initiatives that leverage the company’s existing competencies to expand RPX’s footprint in the patent space. With this progress, we believe now is an appropriate time to explore various alternatives available to the company to maximize value for its shareholders on the basis of its current operations and future prospects.

After bid speculation around the company, RPX Chairman Shelby Bonnie confirms in a press release that it is considering its options, February 21

Upon consideration of the record, and for the reasons discussed below, we determine the Tribe has not established that the doctrine of tribal sovereign immunity should be applied to these proceedings. Furthermore, we determine that these proceedings can continue even without the tribe’s participation in view of Allergan’s retained ownership interests in the challenges patents. The tribe’s motion is therefore denied.

The Patent Trial and Appeal Board denies a motion by the St Regis Mohawks Indian tribe to terminate a series of inter partes reviews against patents that the tribe acquired from pharmaceutical company Allergan last year, February 23

TiVo’s stock price is at a level that the company and its board do not believe reflects the true value of the business given the company has a strong foundation, with leading technologies, and solid cash flow from its long-term IP license agreements and guide deployments. As such, TiVo has begun a process of evaluating a wide range of strategic alternatives to realize long-term shareholder value. These options range from transformative acquisitions that would accelerate our growth, to combining our business with other leading players, to becoming a private company.

TiVo announces that it is exploring alternatives to maximise shareholder value, February 27

On March 1, 2018, Finjan Holdings, Inc. (the “Company”), including its wholly-owned subsidiary, Finjan, Inc. (“Finjan” and collectively with the Company and its affiliated companies, the “Finjan Parties”), announced that Finjan Parties and Symantec Corporation (“Symantec”) and its subsidiary, Blue Coat Systems, LLC (“Blue Coat”) (collectively, the “Symantec Parties”) have reached a mutually agreed Confidential Patent License and Settlement Agreement (the “License and Settlement Agreement”) effective as of February 28, 2018 (“Effective Date”). Specifically, the Parties have resolved and settled all claims between them. As part of the settlement, the Symantec Parties will obtain a license to, among others, the Finjan patents and pay the Finjan Parties $65.0 million in cash within twenty (20) days of the Effective Date of the License and Settlement Agreement. Further, upon acquisition by Symantec of certain entities within four years from the Effective Date, the Symantec Parties will pay additional license fees of up to $45.0 million to the Finjan Parties, unless otherwise mutually agreed to by the Company and Symantec. The remaining terms of the License and Settlement Agreement are confidential.

Finjan 8-K SEC filing, March 1

At a press conference on Wednesday, China’s leading IP jurist, Supreme People’s Court vice-president Tao Kaiyuan, announced that 2017 saw a 40% jump in IP-related litigation in the country. The figure for new first-instance cases for all categories of rights nationwide was 213,480. Surging past the 200,000 mark for the first time, Chinese IP cases have more than doubled in four years. That is about 18 times greater than the total figure for new patent, trademark and copyright cases in US federal courts during 2017, which according to Lex Machina was 11,602.

IAM blog, March 2

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