Federal Circuit Opinions: May 11, 2015

Yep, it's time again to see what the CAFC has said about IP. And, of course, government contracting, government employees, and all that good stuff.

May 11, 2015

Non-Patent Cases

Patent Cases

  • JS Products v. Kabo Tool Co. - Rule 36 affirm of underlying Patent Case from District of Nevada.

  • Tadayon v. Saucon - Affirming rejection of claims in inter partes reexamination under §103. Underlying technology is directed to reducing the power absorbed by a user of a wireless device.

(Science Alert): Basically, all radiation, including the radio signals from your phone, are forms of invisible light. They're basically invisible colors of light that are used to transmit information in different ways. A long time ago, we found that different "colors" of light interact interact with different types of matter to produce, among other things heat based on things that happen at an atomic and subatomic level. So when you're sitting out in the sun, you get hot from both the visible light and the infrared, ultraviolet, etc. Radio waves usually pass through your everyday matter, but they do lose some energy when they do it. Imagine how holding a flashlight up to your skin causes you to be able to see it, distorted, through your hand. So the human body absorbs the energy, distorts it, etc. and causes the radio signal to lose power. That's basically what the invention's about solving.

(3) ... an industry in the United States shall be considered to exist if there is in the United States, with respect to the articles protected by the patent, copyright, trademark, mask work, or design concerned— (A) significant investment in plant and equipment; (B) significant employment of labor or capital; or (C) substantial investment in its exploitation, including engineering, research and development, or licensing.

The CAFC's ruling was: looking solely at qualitative factors of "significant" under (a)(3) was wrong, and that quantitative factors were most important. From page 8 of the ruling:

... the word “significant” denoted “an assessment of the relative importance of the domestic activities.” Certain Concealed Cabinet Hinges and Mounting Plates, Inv. No. 337-TA-289, 1990 WL 10608981, Comm’n Op. at 11 (Jan. 8, 1990). The ITC reviewed the term “relative importance” in quantitative terms, determining that the complainant’s total dollar amount of investment was not “significant” relative to its overall investment with respect to the articles at issue. Id. at 11–12. In Certain Pressure Transmitters, the ITC determined that the § 337 requirement was satisfied based on evidence concerning revenue spent on a manufacturing facility, equipment, research and development, and licensing, as well as reviewing the total number of
people employed at its facility.
Certain Pressure Transmitters, Inv. No. 337-TA-304, USITC Pub. 2392, Comm’n Op. at 14 (Mar. 19, 1990).

Because the CAFC is looking for numbers rather than qualitative involvement, the numbers tell the whole story:

There is no evidence of any investment made in capital or labor as a result of the purchased components. Standard Innovation provides only generic purchase prices it paid for the off-the-shelf items.

Accordingly, the CAFC reversed in Lelo's favor.

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