On February 9, 2018, the United States Court of Appeals for the Federal Circuit (“CAFC”) entered an order transferring the appeal in a Walker Process antitrust action to the United States Court of Appeals for the Fifth Circuit.  Xitronix Corp. v. KLA-Tencor Corp., ___ F.3d ___ (appeal no. 2016-2746).  Despite language in earlier decisions suggesting the contrary, and over both sides’ objections, the CAFC held that patent law is not a necessary element of a Walker Process claim, and that therefore the CAFC lacked subject-matter jurisdiction over the appeal.

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On February 2, 2018, the Patent Trial and Appeal Board (PTAB) of the United States Patent and Trademark Office denied a patent owner’s motion for discovery concerning a petitioner’s identification of the real party in interest in an inter partes review (IPR).  Artesian Home Prods. v. Gutterglove, Inc., No. IPR2018-00015. 

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On January 25, 2018, the United States Court of Appeals for the Federal Circuit issued an opinion affirming the trial court’s decisions that a user-interface patent claims patentable subject matter and that unrebutted expert testimony did not require a jury to find anticipation, as well as its claim-construction decisions, all while damages issues remained unresolved in the trial court.  Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., appeals nos. 2016-2684 and 2017-1922.

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On January 11, 2018, Judge William J. Martinez of the United States District Court for the District of Colorado granted a defendant’s motion to dismiss some patent-infringement claims, ruling they were barred in light of an earlier patent suit between the two parties, but withheld for later decision the question of whether other patent-infringement claims were barred.  XY, LLC v. Trans Ova Genetics, LC, case no. 1:17-CV-944-WJM-NYW.

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Last fall, a jury found Snap-On Inc. to be a willful patent infringer and awarded patent owner Milwaukee Electric Tool Corp. (Milwaukee) approximately $28 million in damages.  On December 29, 2017, Judge J. P. Stadtmueller of the United States District Court for the Eastern District of Wisconsin entered an order resolving the parties’ post-trial motions.  In the order, Judge Stadtmueller upheld the jury’s finding of willful infringement and required Snap-On to pay prejudgment interest for part of the time period requested by Milwaukee, but denied Milwaukee’s request to further enhance damages.  Milwaukee Electric Tool Corp. v. Snap-On Inc., case no. 14-CV-1296-JPS.

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On January 2, 2018, the United States District Court for the District of Massachusetts entered an order denying an accused infringer’s motion to compel the testimony of the named inventor of a patent in suit, even though the inventor was an employee of the plaintiff patent owner when the suit was filed, and was obligated by contract to testify if requested by the patent owner.  Koninklijke Philips N.V. v. Wangs Alliance Corp., case no. 14-CV-12298-DJC.

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On December 11, 2017, Judge Richard Andrews of the United States District Court for the District of Delaware ordered plaintiff Ansell Healthcare Products LLC (Ansell) to produce two documents that it had exchanged with its damages expert, Mr. John Hansel, in connection with his review of an internal settlement proposal.  Ansell Healthcare Prods. LLC v. Reckitt Benckiser LLC, case no. 1:15-cv-00915.  The first document addresses Ansell’s settlement position with respect to a lump sum paid-up worldwide license to defendant Reckitt Benckiser LLC (Reckitt) for Ansell’s polyisoprene article patents.  The second document contains analysis of the business case for Ansell’s global patent litigation against Reckitt.

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On December 11, 2017, Magistrate Judge Christopher J. Burke of the United States District Court for the District of Delaware issued a report and recommendation to Chief Judge Leonard Stark recommending denial of defendant Amazon.com, Inc.’s (Amazon) Section 101 motion to dismiss for failure to state a claim.  M2M Sols. v. Amazon, Inc., case no. 17-cv-202.

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On December 13, 2017, a panel of Administrative Patent Judges (Judges Grace Karaffa Obermann, Bart Gerstenblith, and Robert Kinder) of the Patent Trial and Appeal Board (PTAB) for the United States Patent and Trademark Office granted Petitioner Campbell Soup’s motion for a modified protective order in inter partes review (IPR) proceedings brought against patents owned by Gamon Plus.  Campbell Soup Co. v. Gamon Plus, Inc., IPR case nos. IPR2017-00087, IPR2017-00091, IPR2017-00094.

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On December 7, 2017, Judge Rodney Gilstrap of the United States District Court for the Eastern District of Texas (ED Tex.) granted motions by three suppliers to intervene in a patent lawsuit brought against retailer Wal-Mart in the Marshall Division of that district.  Team Worldwide Corp. v. Wal-Mart, case no. 2:17-cv-235.  The ED Tex. has been a notoriously popular district for patent suits for more than a decade, a period when patent suits typically could be brought in any district where the defendant was subject to personal jurisdiction.  Earlier this year, however, the United States Supreme Court limited patent venue to districts (i) where the defendant corporation is incorporated, or (ii) where the defendant has a place of business and is alleged to have infringed.  T.C. Heartland LLC v. Kraft Foods Group, 137 S.Ct. 1514 (2017).  One result of the ruling was predicted to be an upswing in E.D. Tex. suits naming national retailers as the defendants instead of their suppliers, on the theory that the retailers would be subject to venue in that district even if their suppliers were not.

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