CBS Executive Vice President-Planning, Policy and Government Affairs Marty Franks retiring, effective Sept. 30 … Senate confirmed Claire Kelly and Mark Barnett as judges on the U.S. Court of International Trade … Source Photonics hires Doug Wright, ex-United Technologies, as president and CEO, succeeding CEO Near Margalit, named chief product officer, new position at provider of optical communication products for telecom systems and data networks … Neustar hires John Caldwell, ex-National Geographic Society, as vice president-media and new ventures … RLJ Entertainment hires Drew Wilson, ex-Discovery Communications, as chief financial officer, succeeding John Avagliano, who left to pursue other opportunities … Turner Broadcasting System hires Chris Linn, ex-MTV, as truTV president and head of programming … Journal Communications promotes WTVF Nashville President/General Manager Debbie Turner to vice president of the company … Uber hires Andrew Noyes, ex-Facebook and Warren Communications News, to manage communications and be based in San Francisco office, effective June 17.
Court of International Trade activity
The U.S. patent system is not entirely broken, but reforms beyond the America Invents Act (AIA) are needed to fix issues the system continues to face, a group of current and former federal judges said Tuesday at an event sponsored by the Federalist Society and George Mason University School of Law’s Center for the Protection of Intellectual Property. The judges credited AIA, which Congress passed in 2011, with helping improve conditions at the U.S. Patent and Trademark Office (PTO).
The U.S. Court of Appeals for the Federal Circuit ruled that Alice Corp. can’t claim four of its patents on a computerized currency trading platform because they're too abstract. Friday’s ruling prevents that trading risk management and investment firm from suing CLS Bank International for patent infringement. Alice had argued that even if the four patents in question were based on abstract ideas, they could still be patentable because of the computer’s role in the invention (http://1.usa.gov/Yz3Yjh). Multiple companies filed amicus briefs in the case. A Google-led group including Dell, Facebook, HomeAway, Intuit, Rackspace, Red Hat and Zynga had said software patent standards were too low. BSA/The Software Alliance said the court shouldn’t limit protections on software patents because software plays a “critical role” in the U.S. economy. The court was divided in the ruling, with five of the nine judges issuing opinions that partially or fully dissented from the majority opinion. Judge Kimberly Moore wrote in a partial dissent that she was concerned the ruling could mean the “death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.” Adam Perlman, a partner with the law firm of Williams & Connolly who represented Alice, said his client had no comment. A CLS Bank spokesman said the company was pleased with the ruling, which “strikes an appropriate balance between innovation and competition, and allows CLS Bank to continue its important operations."
Government officials and industry representatives cautioned against changes to International Trade Commission Section 337 investigations. They warned at a House Intellectual Property Subcommittee hearing Tuesday of negative consequences that could lead to expensive, lengthy cases. The hearing focused on proposed efforts to suppress non-practicing entities (NPEs) and patent assertion entities (PAEs) from getting ITC exclusion orders under Section 337. Industry representatives sought to amend the criteria for qualifying as a U.S. industry that can cause a Section 337 investigation. The subcommittee held a similar hearing last year (CD July 19 p13) . “Congress should amend Section 337 to change the domestic industry requirements by limiting qualification to those who engaged in production-based licensing, and not allow complainants to rely on revenue based licensing to satisfy domestic industry,” said Russell Binns, Avaya associate general counsel, in written testimony (http://1.usa.gov/15g457h). NPEs can also use the threat of an exclusion order to “hold up” for excessive payments respondents accused of infringement, because the accused can’t afford the risk of being excluded from the U.S. market, said David Foster, chairman of the ITC Trial Lawyers Association Trade Committee, in written testimony (http://1.usa.gov/15mRvDE). But he and others opposed changing the statute, citing progress ITC has made on its own to better apply the law. Recent ITC decisions, such as the HTC Android smartphone case, show increased attention to the public interest, he said. Proponents of editing the law, including Binns, have also argued for the ITC to include the eBay standard, referring to the Supreme Court’s 2006 decision in eBay v. MercExchange, which affirmed the traditional four-factor test for deciding when injunctive relief is appropriate for patent cases. Implementing the eBay test would “engender confusion and uncertainty,” Foster said. It would increase the cost and length of investigations, since parties would need to undergo “additional steps to prove their cases,” he said. That standard would also reintroduce an injury test in the ITC, “despite proof of injury specifically being eliminated in the 1988 legislation as necessary to establish a patent-based violation,” Foster said. Others at the hearing discounted arguments about the recent Section 337-fueled rise in ITC cases. Former ITC Chairman Deanna Tanner Okun cited (http://1.usa.gov/ZydAIg) a commission fact sheet which said that from May 2006 to June 2012, NPEs accounted for just 10 percent of Section 337 investigations. PAEs accounted for 8 percent of investigations in the same period, said the handout. The ITC is “tailoring its remedial orders to reflect economic and practical realities, and public interest concerns are being carefully addressed,” Okun testified. “The ITC’s recent decisions and administrative actions have sent a clear message that this is not the forum for patent holders who do not make the investments in the U.S. economy mandated by Congress.”
The U.S. Trade Representative will actively monitor issues and barriers to VoIP services, international telephone termination rates and other problems in the telecom field that must be revisited by foreign trading partners, it said Wednesday. USTR’s Section 1377 Review, issued to Congress this week, identified those areas to encourage trading partners to implement appropriate solutions, said the review (http://1.usa.gov/Yw1mDh).
Internet stakeholders will need to participate in the debate over this Congress’s Internet policies if they want to win on issues like e-commerce sales taxes and cybersecurity, Sen. Ron Wyden, D-Ore., said Tuesday at an Internet Association event. Grassroots opposition to the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA) was a turning point in the dialogue on Capitol Hill over Internet-related issues, Wyden said. “For the first time, the technology sector had beaten the middle man,” he said. “We've got to find a way to build on that, and that’s why your work is so incredibly important today.” Regulators and other lawmakers also outlined how upcoming policy discussions would involve the Internet community.
Due mainly to costly International Trade Commission patent infringement litigation against Motorola and HTC, Immersion’s litigation expenses in 2012 soared to $8 million from about $500,000 in 2011, Chief Financial Officer Paul Norris said on an earnings call Thursday. Immersion filed a complaint in February 2012 with the ITC claiming that Motorola Mobility Android-based smartphones infringed on six Immersion patents covering various uses of haptic effects in connection with touchscreens. Immersion also filed a patent suit against Motorola Mobility in U.S. District Court, Wilmington, Del. Immersion later added HTC to the complaints. Immersion signed a settlement and license deal with Google and Motorola Mobility in November, resolving their patent dispute. Immersion is continuing its Basic Haptics litigation against HTC and feels “confident regarding the strength of our case,” Immersion CEO Vic Viegas said Thursday. A hearing in the ITC action is scheduled for late March, with an initial determination due in June and a final determination in October, he said. Forty-six percent of Immersion’s Q4 revenue came from the mobile device sector, Norris said. Interactive games were 21 percent of revenue, while 23 percent of revenue came from the medical sector, 6 percent from the auto industry and 4 percent from chip and other areas, he said. That included revenue from royalty and licensing, product sales and development contracts, he said. Revenue for Q4 ended Dec. 31 grew 15 percent from Q4 the prior year to $8.9 million. Its loss narrowed to $200,000 from $270,000. Royalty and license revenue grew 12 percent to $7.6 million. Immersion’s software licensing business is profitable and is “expanding rapidly, particularly” in the mobile market where its OEM customers have shipped more than 550 million TouchSense-enabled smartphones and tablets to date, said Viegas. Immersion expanded its mobile market presence in “important new geographies” including Japan and China last year, he said. The company recently expanded its license deal with LG Electronics and signed a license deal with Panasonic. Immersion is “seeing great opportunities with new OEM customers,” he said. In China, Immersion is “actively engaged” with chip partners to offer haptic solutions to OEMs there and ZTE, Huawei and Xiaomi all released new devices in 2012 that incorporated Immersion chip-based solutions, he said. Immersion is “engaged” with various companies that aren’t existing licensees or litigants and “we continue to make progress,” he said.
Ukraine’s government is implementing the intellectual property rights (IPR) “action plan” it developed in consultation with the U.S. and hopes to fix remaining IP issues through forthcoming legislation, said Serhii Nalyvaiko, head of the State Intellectual Property Service of Ukraine’s control over IP objects use division, during a Special 301 review hearing Wednesday at the Office of the U.S. Trade Representative (USTR). Nalyvaiko’s testimony came as the USTR-led Special 301 Committee considers whether to designate Ukraine as a “priority foreign country” (PFC) under the Special 301 statute.
Samsung violated Apple’s design and utility patents, but its intent was “not willful,” U.S. District Judge Lucy Koh ruled late Tuesday, denying Apple’s request for additional damages on top of an existing damage award. A jury for the San Jose, Calif., federal court decided in late August that Apple should receive more than $1 billion in damages after it ruled Samsung had infringed multiple Apple patents on its mobile products (CD Aug 28/12 p6).
The U.S. International Trade Commission (ITC) said in a notice Wednesday that it would review “in its entirety” a ruling by one of its administrative law judges that Samsung had violated Apple patents (http://xrl.us/bob6qz), in the latest chapter in the ongoing legal dispute between the two companies over mobile device patents. The ITC case is separate from Apple’s successful patent infringement lawsuit against Samsung in the U.S. District Court in San Jose, Calif.; Judge Lucy Koh is still conducting post-verdict hearings in that case. Judge Thomas Pender ruled in October that Samsung had violated one of Apple’s iPhone design patents and three of its software patents (http://xrl.us/bnvvnb). If the ruling stands, it could lead to U.S. sales bans on some Samsung products. Apple and Samsung had both asked the ITC to review the ruling, while Google had submitted a public interest statement in the case, the commission said, not mentioning what Google said. The ITC had originally planned to make its final initial determination on the case March 27, but said it will set a new date within 30 days of the notice’s posting.