The following telephone arguments will be available to the public live. Access information will be available by 9 AM ET each day of argument at: http://www.cafc.uscourts.gov/public-access-arguments.

Monday, October 5, 2020

Vectura Limited v. GlaxoSimthKline LLC, No. 20-1054

This case involves U.S. Patent No. 8,303,991, relating to composite active particles comprising particles of active material and an additive material (e.g., magnesium stearate (“MgSt”)) on the surface of the particles. An asserted claim further requires that the additive material promotes the dispersion of the active particles upon actuation of a delivery device. Vectura filed suit alleging that GSK infringed the claim, and the jury found infringement. GSK then moved for judgement as a matter of law or a new trial, arguing that Vectura had not presented sufficient evidence that GSK’s accused products practiced the “dispersion” limitation of the claim. The court rejected the argument.

GSK asserts on appeal that it is entitled to judgment of noninfringement as a matter of law because experimentation by Vectura was required to prove that coating the active particles with MgSt improved dispersion, compared to products in which only carrier particles were coated with MgSt. GSK argues that Vectura conducted no dispersion tests on GSK’s accused products but merely extrapolated from a 2006 study of different experimental blends. According to GSK, in relying on the study, Vectura fails to meet its burden of proof because the experimental blends are not representative of GSK’s accused products. GSK also asserts that its products are made by a different method and contain ingredients absent from the study. In response, Vectura argues that no experimentation was required to prove infringement. According to Vectura, GSK itself conducted the study for testing the benefit to dispersal by coating the active particles and the carrier particles with MgSt. Vectura further asserts that the study showed that coating both types of particles with MgSt provided a three-fold increase in dispersion, as compared to coating only the carrier particles. Vectura claims that GSK itself concluded based on the study that the active particles “must be coated” with MgSt. According to Vectura, these asserted facts constitute substantial evidence of infringement. Vectura also argues that, in any event, GSK’s arguments about the differences between the study and the accused products were either fully presented to the jury and rejected, or never raised and therefore waived.

Tuesday, October 6, 2020

SiOnyx LLC v. Hamamatsu Photonics K.K., No. 19-2359

After entering into a mutual non-disclosure agreement (“MNDA”) , SiOnyx allegedly sent HPK photodiode architectures and wafer samples to which SiOnyx applied its black silicon process, the subject of the patent-in-suit. After the MNDA expired on January 12, 2008, SiOnyx allegedly did not instruct HPK to return or destroy the sample devices, and HPK did not return them. HPK emailed SiOnyx on February 9, 2009 about its intent to publicly debut its photodiode and, after further email exchanges, HPK released its accused products in 2010. SiOnyx asserted a claim for breach of contract against HPK based on the MNDA and alleged that HPK willfully infringed the patent. The jury found in favor of SiOnyx. Post-trial, HPK filed a renewed motion for judgment as a matter of law that SiOnyx’s breach of contract claim was barred by the statute of limitation and that HPK’s infringement was not willful. The district court denied HPK’s motion.

HPK appeals, arguing that the district court erred for three reasons. First, HPK asserts that SiOnyx knew or should have known in February 2008 of HPK’s failure of returning SiOnyx’s confidential information, which was actionable at that time. Second, HPK claims that SiOnyx’s awareness of the issue was heightened in February 2009, when the parties exchanged emails about HPK’s newly planned product, which SiOnyx admitted looked exactly like what SiOnyx had sent HPK. And third, HPK argues that SiOnyx admitted at trial that the February 2009 email exchange raised concern at that time with HPK’s actions, which SiOnyx then began to investigate. In response, SiOnyx argues that HPK’s failure to return does not constitute a breach because it is not material to the MNDA. SiOnyx further argues that ample evidence shows that HPK hid its breach from SiOnyx. In particular, SiOnyx asserts that HPK assured that HPK would not use SiOnyx’s confidential information on January 15, 2008 and continued its misrepresentations to SiOnyx in February 2009 that HPK’s own development works do not infringe any of SiOynx’s rights, nor breach any obligations of confidentiality. SiOynx therefore asserts that a reasonable jury could have found that SiOnyx’s claims were not barred by the statute of limitations, even in view of the February 2009 emails. Regarding willful infringement, HPK asserts that the district court erred because there is no evidence showing HPK’s knowledge of the patent prior to the filing of the complaint and because SiOynx’s relevant evidence predates the patent’s filing date. SiOnyx counters that HPK copied SiOnyx’s technology with full knowledge of a parent to the patent. Specifically, SiOnyx asserts that even if the asserted claims had not yet been filed, HPK’s copying still shows that HPK designed its products despite a risk of infringement of future claims that were either known or should have been known.

Tuesday, October 6, 2020

NetSoc, LLC v. Oath Inc., No. 20-1437

After NetSoc sued for infringement of U.S. Patent No. 9,978,107 (“the ’107 patent”), Oath filed a motion to dismiss under 35 U.S.C. § 101. In response, NetSoc filed a second amended complaint substituting the ’107 patent for U.S. Patent No. 9,218,591 (“the ’591 patent”), which is the parent of the ’107 patent and shares an identical specification. In the meantime, separately, the Northern District of Texas dismissed NetSoc’s infringement suit against Match Group following a determination that the claims of the ’107 patent are ineligible under § 101. The district court in the case against Oath found that the claims of ’591 patent are patentably indistinct from the claims of the ’107 patent, and thus held that collateral estoppel applies to the claims of the ’591 patent. The court thus held that the claims of the ’591 patent are invalid.

On appeal, NetSoc argues that the district court erred in applying collateral estoppel to invalidate the claims of the ’591 patent for several reasons. NetSoc asserts that there are substantial differences between the claims of the ’591 patent and ’107 patent, which preclude application of collateral estoppel. NetSoc also argues that some elements of claim 1 of the ’591 patent have no comparable elements in claim 1 of the ’107 patent and vice versa. Further, NetSoc argues that the Texas Decision was based on elements not present in the claims of the ’591 patent and thus the district court erred in not conducting any analysis of the patent eligibility of the claims of the ’591 patent. Oath argues that NetSoc has waived any appeal on the basis of collateral estoppel given that NetSoc offered no substantive argument before the district court as to why collateral estoppel did not apply, or how the ’107 patent and ’591 patent are patentably distinct. Further, Oath asserts that NetSoc is judicially estopped from arguing that the district court should have conducted an independent patent-eligibility analysis of the ’591 patent because NetSoc admitted that the ’107 patent and ’591 patent are “highly related” and there is “extreme similarity in the independent claim 1 of the ’107 patent as compared to the ’591 patent.”