The following arguments will be available to the public live, both in-person and through online audio streaming. Access information will be available by 9 AM ET each day of argument at:

Thursday, January 12, 2023

Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc., No. 21-2299, -2338, Courtroom 201

Columbia Sportswear (“Columbia”) asserted U.S. Patent No. D657,093 (“the ’093 patent”) in the District of Oregon against Seirus Innovative Accessories (“Seirus”). The case was later transferred to the Southern District of California. Seirus stipulated that the ’093 design patent was not invalid. Soon after, the district court granted summary judgment of infringement and held a jury trial on damages. Following the trial, Seirus appealed both the summary-judgment determination and the damages award. In a first appeal, the Federal Circuit remanded the case to the district court, finding that the district court had improperly excluded the Seirus brand name in the pattern on its product in its infringement analysis. On remand, the jury found that Seirus had not infringed the ’093 patent. Columbia appeals.

On appeal, Columbia argues that the district court (1) incorrectly instructed the jury as to what the scope of “comparison prior art” is for the design patent infringement analysis and (2) incorrectly instructed the jury regarding the role that actual or likely consumer confusion plays in the design patent infringement analysis. Regarding the first issue, Columbia argues that the Federal Circuit’s recent In re Surgisil L.L.P. case confirms that, for anticipation, the scope of design patent claims and prior art is “limited to the particular article of manufacture identified in the claim.” Therefore, Columbia argues, “comparison prior art” for the infringement analysis must also be limited to the particular article of manufacture identified in the claim. Columbia argues that because the ’093 patent was limited to heat reflective materials, the district court should have instructed the jury that the scope of the ’093 patent and the “comparison prior art” was limited to heat reflective materials. Regarding the second issue, Columbia argues that the district court failed to instruct the jury that likelihood of confusion is not relevant to the infringement analysis in design patent cases.

Seirus responds that the district court’s jury instructions were proper. For the first issue, Seirus responds by arguing that “comparison prior art” should not be limited to a particular article of manufacture because design patents do not cover functionality and because it is close prior art, not anticipatory prior art, that is relevant for the infringement analysis. Regarding the second issue, Seirus argues that the Court had already resolved that issue in the first appeal when it stated that “L.A. Gear does not prohibit the fact finder from considering an ornamental logo” in the infringement analysis. Seirus also argues that the district court did not err when it did not include an instruction that likelihood of confusion was irrelevant to the infringement analysis because no testimony or trial evidence related to actual or likely confusion.

Seirus also cross-appealed to preserve its damages arguments should the Court overturn the jury’s non-infringement verdict, arguing that the heatwave fabric, not Seirus’s branded products made with the heatwave fabric, is the relevant article of manufacture for calculating damages.

Thursday, January 12, 2023

Apple Inc. v. Vidal, No. 22-1249, Courtroom 402

Apple, Cisco Systems, Google, Intel, and Edwards Lifesciences (collectively, “Apple”) filed suit against the Director of the USPTO (“USPTO”) in the Northern District of California, alleging that the NHK/Fintiv factors used to deny institution of inter partes review (“IPR”) petitions are contrary to the America Invents Act (“AIA”) and violate the Administrative Procedure Act (“APA”). The USPTO filed a motion to dismiss arguing that Apple did not have standing to challenge the NHK/Fintiv factors and that judicial review was barred by 35 U.S.C. § 314(d). The district court found that Apple did have standing, stating that the NHK/Fintiv factors increase the risk that Apple will be denied the benefits of an IPR proceeding, but dismissed the case because judicial review was barred by § 314(d). Apple appealed.

On appeal, Apple argues that § 314(d) should not apply to its challenges and, alternatively, that § 314(d) does not bar judicial review of the NHK/Fintiv factors. Specifically, Apple argues that the APA presumes that judicial review of administrative action is allowed unless Congress expressly precludes review. Relying on the presumption of reviewability, Apple contends that § 314(d) was not intended to preclude review of the NHK/Fintiv factors because § 314(d) applies to determinations to institute or not institute an IPR and does not apply to the rules governing whether to institute. Apple argues that because § 314(d) is limited to precluding judicial review of institution decisions, Apple’s suit challenging the NHK/Fintiv factors, without challenging those factors’ application to a particular IPR, should not be barred. Alternatively, Apple argues that even if § 314(d) applies, § 314(d) does not bar its arguments that the NHK/Fintiv factors are arbitrary and capricious and should have been subject to notice and comment rulemaking because those arguments fall within the exceptions to § 314(d) that the Supreme Court identified in Cuozzo Speed Technologies, LLC v. Lee.

The USPTO responds by arguing that Apple lacks standing to challenge the NHK/Fintiv factors because Apple has not established an injury in fact, causation, or redressability. Specifically, the USPTO argues that the loss of “the benefits of IPR” in future cases is not an actual or imminent injury. The USPTO further argues that even if Apple has standing, § 314(d) precludes judicial review of the NHK/Fintiv factors because the AIA grants the Director unreviewable discretion over institution decisions and that unreviewable discretion applies to factors, like the NHK/Fintiv factors, that the Director relies on to determine whether to institute an IPR.

Friday, January 13, 2023

IPA Technologies Inc. v., Inc., No. 22-1193, Courtroom 201

IPA Technologies (“IPA”) filed suit against Amazon, accusing Amazon’s Alexa of infringing IPA’s U.S. Patent Nos. 6,851,115 and 7,069,560. Amazon moved to dismiss, asserting that the patents were invalid under 35 U.S.C. § 101, which the district court denied. The district court then construed certain claim terms but did not construe the phrase a request for service “formed according to,” “in,” or “adhering to,” an interagent communication language (“ICL”) or the terms “language” or “format.” Both IPA and Amazon later filed summary judgment and Daubert motions. The district court granted Amazon’s motion for summary judgment of non-infringement, dismissed both parties’ Daubert motions and IPA’s summary judgment motions as moot, and entered judgment for Amazon. IPA appealed.

On appeal, IPA argues that the district court improperly introduced a new and improper construction of a group of claim terms after its claim construction ruling. Furthermore, IPA argues that the constructions adopted by the district court are contrary to the claim language, the plain and ordinary meaning of the terms, and the patents’ shared specification. IPA argues that under the proper construction, Amazon’s summary judgment motion should not have been granted because Amazon’s Alexa includes a service request “formed according to” Alexa’s ICL. Additionally, IPA argues that even if the district court was correct in construing the claims, the district court deprived IPA of its due process rights by not giving IPA proper notice and an opportunity to be heard regarding the proper construction of the newly construed claim terms and whether Alexa infringes the patents under the new claim constructions.

Amazon responds that the district court properly granted summary judgment of non-infringement because the district court merely applied the plain meaning of terms that the parties never requested the court construe. Contrary to IPA’s assertion, Amazon argues that the district court’s interpretation of the terms is consistent with the claim language, the plain and ordinary meaning of the terms, the prosecution history, and the patents’ specification. Amazon also argues that IPA’s due process rights were not violated because IPA had notice of the arguments adopted by the district court when Amazon disclosed those arguments during expert discovery.