Fresh From the Bench: Latest Federal Circuit Court Cases
CASE OF THE WEEK
Immunex Corp. v. Sandoz Inc., Appeal No. 2020-1037 (Fed. Cir. July 1, 2020)
In this Biologics Price Competition and Innovation Act case, the Federal Circuit affirmed the bench trial ruling of the district court that the claims of two asserted patents covering a rheumatoid arthritis treatment were not invalid. In so doing, the Court developed the standard for determining common ownership for purposes of obviousness-type double patenting in cases where an asserted double-patenting reference is owned by a licensee of the patent holder.
Electronic Communication Technologies, LLC v. ShoppersChoice.com, LLC, Appeal No. 2019-2087 (Fed. Cir. July 1, 2020)
The District Court for the Southern District of Florida denied an award for attorney’s fees for ShoppersChoice following a judgment invalidating Electronic Communications Technologies, LLC’s (“ECT”) only remaining claim for infringement under the patent at issue. ShoppersChoice appealed. The Court vacated and remanded for an abuse of discretion because the district court “failed to conduct an adequate inquiry” into the relevant factors. Specifically, the District Court failed to “actually assess the totality of the circumstances” by not considering “ECT’s manner of litigation and the objective unreasonableness of ECT’s infringement claim.” Aiding the Court’s decision was a recent Central District of California decision awarding fees against ECT in a similar suit. See Kindred Studio Illustration & Design, LLC v. Elec. Commc’n Techs., LLC (“True Grit”), Case No. 2:18-cv07661-GJS, 2019 WL 3064112, at *6–9 (C.D. Cal. May 23, 2019). The True Grit court found that case to be exceptional because of ECT’s litigation history. “[B]etween 2011 and 2015, ECT, under its former name Eclipse, filed lawsuits against at least 150 defendants, alleging infringement of claims in the ’261 patent and in other patents in the ’261 patent’s family.” The Court held that ECT’s “failure to proceed in litigation past claim construction hearings indicates the use of litigation to achieve a quick settlement with no intention of testing the strength of the patent or its allegations of infringement,” and “a relevant consideration” for whether this was an “exceptional case.” The Court also found the district court’s failure to consider “the objective unreasonableness” of ECT’s alleged infringement against ShoppersChoice an abuse of discretion because another district court had “invalidated claims of patents in the ’261 patent’s family as patent ineligible under § 101” two years earlier. The Court vacated and remanded for further consideration under 35 U.S.C. § 285.