All Eyes On Translogic's Patent Appeal to Supreme Court

Normally, a party who loses its appeal at the Federal Circuit has little hope of the Supreme Court accepting its case on a petition for Certiorari. Even with increased activity by the Supreme Court reviewing patent cases in the last two years, chances of having review granted by the Supreme Court are less than 1 in 1000. Oregon maker of multiplexer integrated circuits, Transolgic Technologies may have better chances.

I posted last October (here and here) about this case when Translogic sought rehearing by the CAFC en banc. It took the Court until January 2008 to finally deny rehearing. Now, with its $86.5M jury verdict hanging in the balance, Translogic has pulled out all the stops for its petition for certiorari, hiring noted patent legal scholar, John Duffy of George Washington University Law School to challenge the constitutionality of the BPAI's 61 administrative judges. Click here for an article on the case by the National Law Journal.

The National Law Journal quoted Duffy as follows:

"You shouldn't take such a position — saying the whole board is unconstitutionally structured — unless you're pretty sure," said Duffy. "I thought this was incredible. I checked it every single way I could before I went out on a limb to say this . . . .The government has never argued I'm wrong. The question is: What do you do about it?"

Needless to say that many a patent litigator has pondered the question: "Should I stay pending reexam, or let the cases proceed along parallel tracks?" Some district courts (like those in East Texas) are notoriously against staying litigation pending reexamination. In these districts, litigants have little choice but to proceed on parallel tracks. What happens, then, if the patent holder wins (verdict of infringement, patent not invalid) and the claims are held invalid by the BPAI? Translogic says the BPAI's ruling (by a panel of three nonArticle III Judges) can trump a jury's verdict. As many lawyers (myself included) say, "that just can't be right."

Well, we soon may find a definitive answer to this question, and it may cause the unravelling of the BPAI's administrative judicial system. These are indeed exciting times to be practicing patent litigation.

Patent Case for Wrist Apparatus Stayed Pending Reexamination

Belkin, Inc., a leading manufacturer of accessories for the electronics industry, won its motion to stay a patent infringement case filed by Prokop Labs, LLC for infringement of US 5,566,913, for a "Wrist Apparatus." Several other manufacturers and retailers were sued. The case is styled Prokop Labs LLC v. Staples Inc. (07-1094-MJP). According to the order, the case will be stayed indefinitely pending reexamination of the '913 patent.
staplesReexamOrder.pdf

Judge Settle (Tacoma) Stays Patent Case Pending Reexamination

U.S. District Court Judge, Benjamin Settle (nominated by George W. Bush on January 9, 2007, to a seat vacated by Franklin D. Burgess; Confirmed by the Senate on June 28, 2007, and received commission on July 2, 2007) recently stayed a dispute involving U.S. Patent Nos. 5,993,303 and 6,250,998, patents for hand-held cutting tools.

The dispute is between Pactool International, Ltd and DeWalt Industrial Tool Co., as well as Kett Tool Company (Case No. 06-5367). Judge Settle granted Kett Tool Company's motion to stay in view of a request for reexamination that was filed on December 20, 2007. While the PTO has not yet granted Kett's request for reexamination, Judge Settle stayed the case anyway, calling for a stay until May 1, 2008, and permitting the parties to file a motion to lift the stay in the event the PTO denies Kett's request for reexamination.
PactoolOrderStay.pdf

Company Loses $85M Because of Patent ReExam

On Friday, the US Court of Appeals for the Federal Circuit vacated an award of $85M in damages which followed a jury verdict of infringement of US Patent No. 5,162,666. The '666 patent covers certain multiplexers, a type of logic circuit with multiple inputs, one or more control lines, and one output. Claims16, 17, 39-45, 47&48 of the '666 patent were found obvious under 35 U.S.C. 103(a) in a decision from the same panel of the court, Judges Mayer, Rader, and Prost. The Court's obviousness decision affirmed a prior ruling of invalidity made by the U.S. Patent and Trademark Offices Board of Appeals and Interferences, which had affirmed an examiner's rejection made in a reexamination proceeding. The Reexam was filed June 4, 1999, following an infringement case brought by the owner of the '666 patent, Beaverton Oregon Company, Translogic Technology, Inc. on March 24, 1999 in the District of Oregon (No. 99-407-PA) against Hitachi. Instead of staying the district court case in view of the Reexam, Translogic pushed ahead, winning a jury verdict that the claims of the '666 patent were not invalid in October 2003 and a subsequent verdict of infringement by Hitachi in May 2005 and an award of $85M in damages. The District court also entered a permanent injunction which was stayed by the Federal Circuit pending appeal. Only claims 16 and 17 of the '666 patent were litigated by Translogic to verdict.