Fresh From the Bench: Latest Federal Circuit Court Cases

CASE OF THE WEEK

VirnetX Inc. v. Apple, Inc., Appeal Nos. 2017-2490, -2494 (Fed. Cir. Dec. 10, 2018)

The Federal Circuit affirmed two final written decisions of the Patent Trial and Appeal Board (“PTAB”), which had found claims of one of VirnetX’s patents unpatentable as obvious.  The Court found that VirnetX was collaterally estopped from relitigating a threshold issue of whether prior art reference “RFC 2401” was a “printed publication” under § 102(b), and that it had failed to preserve the only remaining issue raised in the appeal.

During the pendency of the instant appeals, the Federal Circuit had decided VirnetX Inc. v. Apple, Inc., 715 F. App’x 1024 (Fed. Cir. Mar. 16, 2018) (“VirnetX I”), in which the Court affirmed seven PTAB decisions finding that claims of another VirnetX patent were rendered obvious by RFC 2401, in combination with other references.  In that case, VirnetX had also argued RFC 2401 was not a printed publication.  The PTAB disagreed, and the Federal Circuit summarily affirmed under Federal Circuit Rule 36.

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ALSO THIS WEEK

Spineology, Inc. v. Wright Medical Technology Inc., Appeal No. 2018-1276 (Fed. Cir. Dec. 14, 2018)

In an appeal from a district court denial of attorneys’ fees under 35 U.S.C. § 285, the Federal Circuit affirmed.  The District Court had rejected Wright’s arguments that Spineology’s claim construction position, damage theories and litigation conduct made the case exceptional under § 285.  The Court found that the District Court did not abuse its discretion and thus affirmed.  The Court also reiterated that “fee awards are not to be used ‘as a penalty for failure to win a patent infringement suit.’”

The opinion can be found here.

Written by: Scott D. Eads and Nika Aldrich, Schwabe Williamson & Wyatt

Contributors: Cristin Wagner and Jason Wrubleski