Marks & Clerk’s Post

Atlantic IP entity, Foras Technologies, parallel processor patent, US 7,627,781, found invalid in reexam. The ‘781 patent relates to lockstep processor technology where two processors are paired together, and the two processors perform exactly the same-operations and the results-are compared. It has been asserted against Toyota Motor Corporation and Nissan Motor Corporation. #TheAntiTroll #finalrejection #exparte https://lnkd.in/gaXbh4Pf

When you are in a hurry to expedite an appeal against the dismissal of security for costs, you must still take the time to specify and substantiate why you need a fast track. That is the identical lesson from nine substantively identical orders of the UPC Court of Appeal of 22 May 2024 in appeals lodged by Volkswagen, Audi and Texas Instruments in infringement cases regarding three patents of Network Technologies Technologies (“NST”), in which security for costs to be given by this American patentee was denied. https://lnkd.in/eRH7Zk_e The mere fact that the one of the official “raisons d’être” of the UPC is to ensure expeditious decisions, as stated in the preamble of the UPC Agreement, is not enough to allow a fast track appeal. The request by the Appellants to expedite the appeal and shorten any deadlines was denied for being too unspecified and insufficiently substantiated.   For case law on the power of the court to shorten time periods (Rule 9(3) RoP): https://lnkd.in/eUd28eCT #upc, #upcnugget

UPC News: Procedural Clarity in Volkswagen v. NST Ruling (8 May 2024) In a recently published UPC order from 9 May 2024 (Volkswagen v. NST), the Local Division Munich shed light on questions relating to the validity of a withdrawal of opt-out, the right of standing to sue, the required substantiation of infringement by claimant and the postponement of a decision on preliminary objections:   ▪ The UPC withdrawal of the opt-out of NST by an officially appointed representative under art. 48 UPCA was valid, and did not require a justification of her power of attorney on behalf of NST. This is in contrast to an application filed by “any other person lodging the application to opt out on behalf of the proprietor”.   ▪ NST has full standing to sue by virtue of an agreement with the original patent owner, which also covers infringements prior to the agreement.   ▪ A detailed outline of the infringement and a comparison of the features of the patent claim with one accused device, suffices in the Statement of Claim (Rule 13(n) RoP). At a later stage it is sufficient to show that this "infringement read" also applies to all the other devices on the list of infringing devices.    ▪ Any decision on the preliminary objections of lack of jurisdiction raised by the Defendants may be deferred to a later stage of the proceeding, in accordance with the provisions of rule 20.2 RoP. ----- For more information about our UPC Cooperation, please visit our website: www.vossiusbrinkhof.eu #upc #news #unifiedpatentcourt #volkswagen #nst #litigation VOSSIUS Brinkhof N.V.

PTAB Denies IPR in American Honda vs. Neo Wireless LLC - Case IPR2023-00797 Case Summary: In IPR2023-00797, American Honda Motor Co. requested an inter partes review (IPR) to challenge the patentability of claims 23, 24, 26, and 27 of U.S. Patent No. 10,771,302, owned by Neo Wireless LLC. This patent relates to wireless communication systems involving Orthogonal Frequency Division Multiplexing (OFDM) and Direct Sequence Spread Spectrum (DSSS) technologies. Honda's petition followed a similar one previously filed by Volkswagen, which was denied. Board Decision: After evaluating the petition and the preliminary response, the PTAB determined that Honda did not demonstrate a reasonable likelihood of prevailing on the challenged claims. The Board found that Honda's reliance on prior references, such as the IEEE standards, failed to sufficiently show how the claimed invention would have been obvious to a skilled person. As a result, the Board exercised its discretion to deny the institution of the IPR. Key Takeaway: The decision highlights the importance of a petitioner providing clear, substantial evidence when challenging patents in an IPR. Merely referencing standards or prior art is insufficient without showing a reasonable likelihood of success in proving the claims' unpatentability #SethLaw #TexasLawyers #IPRDefense #PatentLitigation

🔔 What's been happening at the UPC? 🔍 🚗 Yesterday (6 May 2024), Hamburg had a premiere in UPC proceedings. In a dispute between Avago and Tesla, the Local Division held its first interim conference (ACT_463258/2023). We at Bird & Bird were curious to learn how the panel presided by Sabine Klepsch handles the matter at this stage of the proceedings. Dr. Annika L. Lückemann, LL.M. (Virginia) from our Hamburg patent litigation team attended to observe: 📋 🏛 👉 The interim conference was led by Dr. Stefan Schilling, who is the Judge-Rapporteur in this case. It took place via videoconference, which went smoothly and was well organised. Overall, Judge Dr. Schilling followed a pragmatic approach, trying to prepare the upcoming oral hearing efficiently but thoroughly. 👨⚖️ 👉 The Judge-Rapporteur had a list of topics he addressed, the most interesting probably being claim interpretation. In this regard, Dr. Schilling shared that the Division tends to a functional interpretation. He then clarified the current focus for the oral hearing (validity over one document and non-infringement). 📑 👉 There was also discussion about issues with the CMS and possible consequences. However, all were in agreement that a uniform practice needs to (and will) be developed. 🖥 👉 The parties now have a deadline to comment in writing before the oral hearing which will take place on 19 June 2024. 📆 📟 ⚙ Avago sued Tesla for infringement of its patent EP 1 612 910 relating to an on-board power supply monitor and power control system in June 2023. Tesla filed a counterclaim for revocation. A further dispute between the parties is pending before the Munich LD regarding EP 1 838 002 (ACT_462984/2023). 🔌 🔋 #upc #patents

UPC - Volkswagen v. Network System Technologies / Appeal - Preliminary objection, request for an order pursuant to R.361 RoP (action manifestly bound to fail) Headnote summary: Proceedings under R.361 RoP should not result in a full exchange of arguments and evidence, but – as is clear from the use of the word ‘manifestly’ – must be reserved for clear-cut cases. Even though the UPC procedure is a front-loaded system, it is not required that the claimant envisages every possible line of defence and includes all arguments, facts and evidence in and submits it with the Statement of claim and that nothing could ever be added thereafter. The question of whether any claim has been sufficiently argued and substantiated in the Statement of claim is not a matter to decide under R.361 RoP. Whether claims have been sufficiently stated, substantiated and if required proven is for the Court of First Instance to decide in the main proceedings after full consideration of all (further) submissions and evidence. https://lnkd.in/eVKCh9WA

Volkswagen Group's and AUDI AG's Unified Patent Court appeals of the Munich LD's denial to sustain certain early-stage objections against cases brought by Network System Technologies (NST) were rejected by the Court of Appeal (CoA): - It's OK for the court below to address damages jurisdiction for the UK & Northern Ireland (sic) at later stage of proceeding, if the questions is reached at all. - The court doesn't lack jurisdiction due to an allegedly invalid opt-out. - There is no standing issue warranting the outright dismissal of the case. - And the case won't be thrown out over allegedly unsubstantiated claims either. Panel: Presiding Judge Rian Kalden, Judge Ingeborg Simonsson and Judge Patricia Rombach. Counsel for NST: Simmons & Simmons's Dr Thomas Gniadek. Counsel for VW/Audi: BARDEHLE PAGENBERG's Dr. Jan Bösingösing, Saskia Mertsching and Monika Harten. https://lnkd.in/dhZViu8j

🚗 𝐁𝐌𝐖 𝐓𝐫𝐢𝐮𝐦𝐩𝐡𝐬 𝐢𝐧 𝐋𝐞𝐠𝐚𝐥 𝐀𝐫𝐞𝐧𝐚: 𝐎𝐯𝐞𝐫𝐜𝐨𝐦𝐞𝐬 𝐒𝐞𝐦𝐢𝐜𝐨𝐧𝐝𝐮𝐜𝐭𝐨𝐫 𝐏𝐚𝐭𝐞𝐧𝐭 𝐂𝐡𝐚𝐥𝐥𝐞𝐧𝐠𝐞 🎉 🎯 𝐁𝐢𝐠 𝐖𝐢𝐧 𝐟𝐨𝐫 𝐁𝐌𝐖! The German luxury car giant, BMW, just navigated through a major legal hurdle with style and success. In a significant courtroom clash against Arigna Technology Ltd., an affiliate of the Irish firm Atlantic IP Services Ltd., BMW not only got a semiconductor infringement case dismissed but also ensured a future-proof shield against similar lawsuits. 🛡️ 📜 The core of the dispute revolved around the 𝐔𝐒 𝐏𝐚𝐭𝐞𝐧𝐭 𝐍𝐨. 7,049,850. However, in a strategic move, BMW unveiled that Arigna's infringement theory was based on a pre-existing product. This revelation turned the tables, leading to the patent being deemed invalid. 🤯 ✅ 𝐓𝐡𝐞 𝐨𝐮𝐭𝐜𝐨𝐦𝐞? A promise from Arigna Technology Ltd. to BMW: no future lawsuits on this matter. The announcement came from BMW Group's legal team on Tuesday, following a Virginia federal judge's decision to dismiss the case on Monday. 🔍 This victory is more than just a legal win; it's a testament to BMW's resilience and strategic prowess in navigating complex patent landscapes. BMW continues to set benchmarks not just on roads but in courtrooms too! 🌟 #BMW #Innovation #Semiconductor #Patent #patentlitigation 🚘🏆💼👨⚖️🔍

Tesla's UK #FRAND action against Avanci and InterDigital, Inc. has been thrown out: no serious issue to be tried. Tesla wanted to get a global FRAND determination for the entire Avanci 5G pool from the UK court. Only the technical claims against specific InterDigital patents survived the jurisdictional challenge, though they allegedly constituted an abuse of process. Mr Justice Fancourt will have to decide whether to allow an appeal and stayed the technical claims for case management reasons. The High Court has provided ip fray with a copy of the judgment. A detailed analysis will follow. ip fray followed the hearing via a livestream and was skeptical of there being a claim against an optional pool licensing offer, though a lot of claims have recently survived jurisdictional challenges in the UK that should have been thrown out. That fact makes this outcome all the more significant. https://lnkd.in/dQ2s497m

The UPC is not here to stay proceedings. That became even more clear with the order of 25 April 2024 of the judge-rapporteur of the Paris Central Division in Toyota v Neo Wireless under Rule 295 RoP. https://lnkd.in/eeKnysfp A stay of the revocation proceedings was requested because of – simply put – (i) a pending appeal from a preliminary objection challenging the jurisdiction of the UPC, (ii) a pending opposition against the patent before the European Patent Office and (iii) balancing the interests of the parties. With regard to the pending appeal concerning the rejection of a Preliminary Objection, it was held that neither the fact that the objection had been lodged nor the likelihood success of the appeal against the rejection of the Preliminary Objection are relevant factors for deciding whether the proceedings should be stayed. The judge-rapporteur also observed that the likelihood of succes of an appeal should not and could not duly be evaluated by the judge-rapporteur whose decision is appealed. The pending EPO opposition was no ground for a stay because no rapid decision is expected from the EPO. The date for the EPO opposition hearings has not even been set and is still unclear when the EPO will issue a decision. In this context the judge-rapporteur expressly referred to and agreed with an earlier order of the Munich Central Division of 20 November 2023 in Astellas v Healios. It was further held that the Claimant’s interest to continue the proceedings outweighed the Defendant’s interest to stay the proceedings on the following arguments: (a) Defendant’s interest to (potentially) save litigation costs does not weigh up to the legitimate interest of Claimant in pursuing this revocation action; (b) The balancing of interests also strikes in favour of plaintiff because the patent expires on 27 January 2025; (c) The fact that there is a danger of differing results between the UPCA proceedings and in the EPO proceedings does not lead to a different result.   It shows once more that – as was to be expected – the default position at the UPC is that proceedings are not to be unnecessarily stayed. For case law on Rule 295 RoP see IP-PorTal at ippt.eu: https://lnkd.in/e8jEP2i6  #upc, #upcnugget