April 4, 2013, by Mandour & Associates, APC

Los Angeles – Last Thursday, ResMed Inc. filed lawsuits against two companies alleging patent infringement related to devices that help prevent sleep breathing disorders.  Taiwan based Apex Medical Corp., the alleged manufacturer, and Medical Depot Inc., the alleged distributor, who are doing business together as “Drive Medical Design and Manufacturing”, are the target of a lawsuit filed in U.S. District Court and a complaint filed with the International Trade Commission.

ResMed Inc., which is headquartered in San Diego, California, alleges that the companies are selling or importing sleep disorder breathing treatment systems that infringe seven patents covering products such as humidifiers, flow generators, and respiratory masks.  ResMed has developed many devices and methods for treatment for sleep apnea and other related sleep breathing disorders.  One ResMed product at the center of the dispute is a special mask designed to promote air flow.

ResMed currently has a portfolio of 95 trademarks and 54 registered patents and has been active in protecting its intellectual property, though this is the first time that ResMed has been forced to file a lawsuit related to the patents named in the lawsuit.  Sleep apnea can cause serious health problems if left untreated including high blood pressure, diabetes, depression, heart problems, trouble concentrating, and stroke.  Roughly 20% of all adults have sleep apnea.

The ITC Complaint states that the defendants manufacture the allegedly infringing products in Taiwan and then arrange for their importation into the U.S.  ResMed is requesting that the ITC permanently bar Apex and Medical Depot from importing the alleged infringing breathing treatment apparatuses into the U.S.

In the District Court case, ResMed is seeking damages in addition to an injunction.  The complaint states that Apex’s XT Fit, iCH Auto, and its Wizard 210 and Wizard 220 masks all infringe its patents. The complaint contains four claims of infringement each against Apex and Drive Medical related to masks, and three more claims against Apex over other devices.  The complaint also seeks damages based on allegations that Apex and Medical Depot’s face-mask type of breathing inventions infringe Resmed’s patents.  The “acts of infringement have caused and will continue to cause irreparable harm to ResMed unless and until enjoined by this court,” the complaint said.

March 12, 2013, by Mandour & Associates, APC

Los Angeles – A Los Angeles federal judge granted partial summary judgment to Allergan, Inc. on Tuesday, saying that Allergan had proven that Cosmetic Alchemy, LLC had induced its customers to infringe Allergan’s patent that covers its popular growth drug for eyelashes.

Allergan argued that Cosmetic Alchemy induced its customers to infringe Allergan’s patents by providing a product containing bimatoprost to accelerate hair growth and providing instructions that mirrored Allergan’s patented methods.

U.S. District Judge James V. Selna of the Central District of California in Los Angeles sided with Allergan and ruled that Cosmetic Alchemy had induced its customers to infringe Allergan’s patent for Latisse by directing its customers to apply its eyelash growth drugs, LiLash and LiBrow, using exactly the same steps as Allergan’s patented methods describe in U.S. Patent Number 6,262,105.

“There is no genuine dispute of material fact precluding summary judgment on the contributory infringement claim,” Judge Selna wrote.  “Thus, the undisputed facts show that Cosmetic Alchemy, through its advertisements, communications with customers, product instructions, and sales, intends to induce and does induce customers to follow each step of the patented methods in the ‘105 Patent.”

Cosmetic Alchemy argued that Judge Selna should not grant the request for summary judgment because the compound used to promote hair growth has unpredictable results and testing has not been performed to prove that LiLash promotes hair growth.  Cosmetic Alchemy also claimed that it does not claim its products make hair grow in its marketing materials.

Judge Selna said that Cosmetic Alchemy’s lack of testing argument is weak and said that the company did nothing to prove that bimatoprost does not grown hair.  He also pointed out that Allergan submitted evidence that consumers have experienced hair growth when using products containing bimatoprost and that Cosmetic Alchemy marketed LiLash as a product to increase hair growth.

The lawsuit started when Allergan filed lawsuits against several providers of eyelash-growth products, including Cosmetic Alchemy in 2007.  The complaints accused the companies of patent infringement and of engaging in unfair competition by selling hair growth products that had not been approved by the U.S. Food and Drug Administration.

The judge has yet to rule on Allergan’s other claims against Cosmetic Alchemy.

Posted in: Uncategorized
March 5, 2013, by Mandour & Associates, APC

Los Angeles – A Texas federal judge upheld a $368 million patent infringement judgment against Apple Inc. last week, but the judge refused to issue an injunction against Apple over the FaceTime app that would have prevented Apple from offering its video chat product on the market.

In November, a Texas jury found that Apple had infringed four patents owned by VirnetX Holding Corp. with its FaceTime application that is available for use on various Apple products, including the iPad and iPhone.

After the $368 million judgment against Apple in November, the technology giant filed several post-trial motions attempting to eliminate or reduce the verdict against it, which U.S. District Judge Leonard Davis denied.  The judge also ordered Apple to pay pre- and post-judgment interest to VirnetX, though he denied VirnetX’s request for attorney’s fees.

Judge Davis, however, rejected VirnetX’s bid for a permanent injunction that would prevent Apple from providing the popular videotelephony software application on its various devices.  As the app is already on millions of phones and tablets, Judge Davis said an injunction would be too drastic, resulting in unnecessary inconvenience and expense.

“The most recent estimates project the cost [for Apple] to comply at $50.8 million,” the judge said.  “Additionally, though VirnetX only seeks to enjoin the use of the infringing feature and not the entire devices, an injunction would not only harm Apple, but also its customers and other third parties.”

However, Judge Davis did order the two companies into mediation to determine a fair royalty rate that Apple will pay in order to use the technology in its products.

VirnetX originally filed the lawsuit against Apple in August 2010, alleging that Apple was infringing four patents.  The FaceTime app allows users to make video calls to others who also have Apple products with FaceTime.

VirnetX said in a statement that it was pleased with the judge’s decision to uphold the ruling against Apple and said that it would drop the related lawsuit it filed with the U.S. International Trade Commission and pursue relief through the federal courts.

February 15, 2013, by Mandour & Associates, APC

Los Angeles – MyMedicalRecords Inc. filed a lawsuit in California federal court against the health information company WebMD Health Corp., claiming that WebMD has created an online portal for patient records that infringes one of its patents.

The online health records provider claimed that WebMD launched its new patient’s records portal after talks regarding MyMedicalRecords assisting WebMD revamp its old portal fell through.  It also claimed that the new portal infringes its patent that covers technology that allows patients to securely access personal health files stored remotely.

MyMedicalRecords filed the lawsuit on Monday in the Central District of California in Los Angeles and Judge Christina A. Snyder will hear the case.

MyMedicalRecords is a subsidiary of Los Angeles-based MMRGlocal Inc.  Its website allows users to store all of their medical information securely online and allows them to access and add to the records from anywhere.  The company also offers other methods for securely storing medical records and has seven patents to protect the technology.

WebMD provides health information to the general public, health care providers and health plans through both public and private portals.  The New York-based company approached MyMedicalRecords in May 2007 requesting assistance in developing a secure patient information portal, according to the complaint.

At the time, WebMD’s patient portal only allowed users to enter personal information, which could be compared against a database to give the user an assessment of his or her health.  WebMD admitted to MyMedicalRecords that its portal was limited and sought its advice on improving the portal, as WebMD wanted to have a system similar to MyMedicalRecords’ system.

The companies signed nondisclosure and confidentiality agreements and began talks.  According to MyMedicalRecords, WebMD halted the talks a few months later and then began altering its portal to include features of MyMedicalRecords portal.

According to the complaint, WebMD’s current portal allows users to integrate different forms of health information from various sources and store those records securely, which MyMedicalRecords claims directly infringes its patent.

MyMedicalRecords is seeking a judgment declaring that WebMD has willfully infringed its patent and an injunction forcing WebMD to cease infringing the patent in addition to damages, treble damages, interest, costs and attorney’s fees.

February 13, 2013, by Mandour & Associates, APC

Los Angeles – Tela Innovations Inc. filed a lawsuit against Nokia Corp, LG Electronics Inc., and several other companies with both the U.S. International Trade Commission and the Delaware federal court accusing the companies of infringing seven patents owned by Tela that cover technology related to integrated circuit manufacturing processes.

In addition to Nokia and LG, Tela filed separate lawsuits against Motorola Mobility LLC, HTC Corp., and Pantech Co. Ltd. in Delaware federal court and a joint complaint against all five companies with the ITC accusing the companies of copying Tela’s technology for optimizing the layout of integrated circuits in its smartphones without a license from Tela.

“Tela has, and continues to, create technology to address critical technical and economic challenges facing the semiconductor industry.  Our products enable designers to achieve the best performance, area and power characteristics possible as semiconductor processes continue to scale,” Scott Becker, CEO of the California-based Tela, said in a statement.  “Given the significance of our company’s investment in this technology and associated products, it was necessary to take legal action at this time.”

Tela, which is headquartered in Santa Clara County, said its patents protect improvement for the manufacture of integrated circuit chips, which are utilized in nearly all electronic devices including smartphones, tablets and laptops.  The manufacturing techniques allow manufacturers to perfect printing of a circuit layout on tiny chips.

In the complaints, Tela claims that each of the five companies have imported and sold smartphones or tablets that contain integrated circuits that infringe some combination of seven patents held by the company.

“Tela has been irreparably harmed by the defendants’ infringement of its valuable patent rights,” the complaint said. “Moreover, defendants’ unauthorized and infringing uses of Tela’s patented technology have threatened the value of this intellectual property.”

In the lawsuits filed in federal court, Tela is seeking damages and an injunction to prevent the companies from importing goods in the future that infringe its patents.  The ITC complaint is seeking a declaratory judgment that the companies have imported infringing goods and therefore have breached Section 337 of the Tariff Act of 1930.  If the ITC rules in favor of Tela, it could result in an exclusion order banning the companies from importing their devices into the United States.

February 1, 2013, by Mandour & Associates, APC

Los Angeles – A U.S. District Judge denied Apple’s bid to increase the $1.05 billion in damages the company was awarded against Samsung by a San Francisco jury in the companies’ ongoing patent war.

On Tuesday, U.S. District Judge Lucy Koh in San Francisco said that Apple had not provided sufficient evidence to prove Samsung’s infringement was willful and therefore denied Apple’s bid for treble damages.

The decision was one of many post-trial rulings Judge Koh issued Tuesday.  She also denied both companies’ requests for a new trial, which were based on parts of the verdict that were adverse to each company’s interests.  Judge Koh said that after reviewing the trial, she did not find error in the decision and upheld the jury’s verdict.

Judge Koh also denied Samsung’s request that the damages be reduced.  The San Fransico jury awarded Apple $1.05 billion to compensate Apple for losses caused from Samsung’s patent infringement.  The jury awarded the damages after determining that Samsung infringed six of Apple’s patents by using the protected technology in 26 models of smartphones and tablets without license from Apple.

Samsung claimed that the jury was not provided with a verdict form that was particular enough to allow it to properly calculate damages on a product-by-product basis.  The company claimed that if the damages were properly calculated, the verdict would be reduced by more than $600 million.

Another argument Samsung offered for reducing the damages was its claim that Apple’s patents should never have been granted because the language was too vague and did not accurately describe the technology covered by the patents.

Judge Koh rejected both arguments and did not provide much detail on why she was upholding the amount of the verdict, particularly when she had said in a hearing on December 6th that the original award was not “authorized by the law” and that the jury’s approach to calculating the damages was likely faulty.

In Tuesday’s decision, Judge Koh said that the court would not speculate on how the jury determined the damages awarded, but claimed that it was reasonable to assume the jury calculated the damages in order to compensate Apple for any losses it suffered due to Samsung’s infringement of Apple’s patents.

Despite Judge Koh’s ruling, it is likely the case is far from over, as at least one of the companies will likely appeal the decision.

January 12, 2013, by Mandour & Associates, APC

Los Angeles – For the 20th year in a row, International Business Machines Corp has been named the number one assignee of patents in the United States, according to IFI CLAIMS Patent Services’ list of the 2012 Top 50 US Patent assignees.

IBM leads the chart with 6,478 patents granted in 2012, which is more than 20% more than its next closest competitor.  IBM brings in an estimated $1 billion a year from licensing its patent portfolio.  In addition to the income, IBM uses its portfolio of patents to protect itself from litigation brought on by competitors and patent-holding firms.

Not surprisingly, Samsung Electronics Co made the number two spot with 5,081 patents granted last year.  The top ten is rounded out with other technology giants, such as Sony, Panasonic, Microsoft, Toshiba and other popular electronics brands.

However, there are a few names that surprisingly did not come close to the top ten.  Apple Inc came in at number 22, with only 1136 patents granted in 2012.  Google, Apple’s patent war rival, came in just ahead in the number 21 spot with 1151 patents granted.   Though the technology giants are lower on the list, the two companies made the biggest climb from their rankings last year.  Apple jumped from the 39th to 22nd spot and Google made an astounding jump from the 65th to 21st spot.

Google’s numbers were likely boosted by its purchase of Motorola Mobility in May of last year.  However, it is clear that Google and Apple both see their patent portfolios as a major business tool, as seen by their jump in the rankings and their ongoing patent wars around the globe.

However seriously these companies may take their patent portfolios, they could still learn a thing or two from IBM.  Dr. Michael Karasick, a vice president and computer scientist at IBM, says he credits the company’s impressive portfolio to its diverse range departments, each of which is filled with employees with varying skill sets.

Dr. Karasick also credited IBM’s success to its ability to invent and patent technology that can be used in different disciplines.  One example is the patent it was granted last year which covered the technology used in the IBM Watson computer, which beat the human “Jeopardy!” champions in 2011.  The same technology is currently being tested as an automated assistant for physicians to aid in diagnosing diseases.

With strategies like that, it is no wonder IBM has been able to hold the number one spot for the 20th year in a row.

January 3, 2013, by Mandour & Associates, APC

Los Angeles – The United States Patent and Trademark Office said in a preliminary ruling that one of Apple Inc.’s touch-related patents, a patent that played a large role in securing Apple over $1 billion in damages from Samsung Electronics,  should never have been granted.

After reexamination of the patent application by the USPTO, the agency rejected all of Apple’s 26 claims in its pinch-to-zoom patent on Wednesday.  The patent in question, patent No. 7,844,915, covers software that differentiates between single-touch and multitouch motions.  The software allows the smartphone to differentiate between scrolling and gesturing commands.

According to a document issued by the USPTO, which Samsung filed with the federal court in San Francisco on Wednesday, several portions of the patent were discarded based on findings that prior patents owned by Apple protect the same technology.  Patents are only valid if the invention is novel considering all prior art.  According to the USPTO’s report, Apple’s pinch-to-zoom patent does not live up to this standard.

Apple is expected to appeal this preliminary ruling.  The USPTO often rejects patents, only to reinstate them later, so the patent may still be held valid.  However, if the decision does hold, the rejection of the patent will have lasting consequences for Apple.  Since Apple claimed that its pinch-to-zoom patent was one of its most commercially valuable patents, demanding a $3.10 per unit royalty from Samsung for any future use of the patented technology, it could have a large impact on the verdict Apple received in August.

Samsung is already claiming that this new action from the USPTO supports its bid for a new trial, which Samsung is requesting as an attempt to reduce the $1.05 billion in damages that a San Francisco jury awarded Apple.

The pinch-to-zoom patent is only one of six of Apple’s patents that Samsung was found to be infringing during the companies’ patent trial.  However, due to Apple’s claims of the commercial importance of the patent, it could prove grounds for retrial, though it is more likely that the verdict will just be reduced.

This is the second patent related to the Samsung case that has been struck down by the USPTO since the August decision.  In October, the USPTO rejected Apple’s patent for the feature that makes pages bounce when a user swipes a finger from the top to the bottom of the touch screen.

Posted in: Uncategorized
November 26, 2012, by Mandour & Associates, APC

Los Angeles – US Patent and Trademark Director Dave Kappos defended the patent system against critics, such as Google, who have been claiming the system is broken.

Google and other technology giants have long criticized the patent system, particularly when it comes to the handling of software patents.  Many issues in the debate were summed up in an opinion piece written by Kent Walker, senior vice president and general counsel for Google, which was posted yesterday on Wired.

Walker claimed that patent trolls are taking advantage of holes in the patent system, costing technology giants billions of dollars each year.  He called the government to action, claiming they need to get rid of bad software patents that have been issued, prevent bad software patents from being issued in the future, and provide “clearer rules for damages and awarding costs.”  Walker claimed that bad software patents include overly broad patents and business method patents.

The patent trolls are not only bad for businesses, Walker claims they are bad for consumers as well.  He claimed that fighting abusive litigation takes time and resources away from research and development in large companies and completely devastates small companies and start-ups, resulting in quashed competition and suppressed creativity.

These views are shared among many critics of the software patent system, but Kappos claimed in a speech this morning at the Center for American Progress that the software patent system is functioning the way it should be.

The patent office conducted a study of many different software patent lawsuits and found that the courts had found 80 percent of the patents in question valid, according to Kappos, thus getting rid of bad software patents would make little difference in the amount of software patent litigation.  He stated that the software patent wars are not a sign that the patent system is broken, but rather a sign that the patent system is working.

Kappos also claimed that the America Invents Act will take care of many of the issues critics are complaining about, but they have not yet given the AIA time to take effect. Among other things, Kappos said the AIA will help weed out business method patents and bad software patents.

His last major claim against his critics was that technology continues to develop very quickly, so he claims that critics who say development is being harmed by the litigation have no standing.

Regardless of whether the software patent system will end up being reformed or not, it appears that software patents will continue to be a hot topic.

November 1, 2012, by Mandour & Associates, APC

Los Angeles – Though it was only launched a week ago, Microsoft is already being sued for patent infringement over its Windows 8 Live Tiles.  The lawsuit was filed Tuesday by SurfCast in the U.S. District Court for the District of Maine.  In its court documents, the Portland, Maine based company claims it owns the intellectual property for Live Tiles, the most popular feature of Microsoft’s new Windows 8 operating system.  The lawsuit further alleges that the dynamic tiles system used in Windows 8 infringes on SurfCast’s patent for a “System and Method for Simultaneous Display of Multiple Information Sources.”

SurfCast patent number 6,724,403 was issued in 2004, and specifically includes a unique tile grid format and a process by which the grid refreshes to show the most updated information.  “We developed the concept of Tiles in the 1990′s, which was ahead of its time,” SurfCast CEO Ovid Santoro said in a statement on the company’s Website.  As such, SurfCast insists that Microsoft’s Live Tiles, the centerpiece of Microsoft’s new operating systems, are a deliberate copy of the SurfCast patent.  In its court documents, SurfCast claims that Microsoft lists its patent as prior art and yet continues to instruct its developers to make apps that infringe its patent.   SurfCast is asking for monetary damages related to contributory infringement and the “direct willful infringement” by Microsoft of its patented functionality.

Despite SurfCast’s claims, Microsoft states that it has its own patent that covers the Live Tile technology.  Microsoft’s patent number 7,933,632, covers “tile space user interfaces for mobile devices”.  According to the USPTO, Microsoft’s patent includes “tiles that provide a snapshot of the current state of content available through the mobile device without requiring any interaction by the user.”  The tiles and display space are customizable and can be dynamically updated to display content to a user.  A statement released by Microsoft this week stated, “we are confident we will prove to the court that these claims are without merit and that Microsoft has created a unique user experience”.

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