Spotlight on Upcoming Oral Arguments – February 2024

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: https://cafc.uscourts.gov/home/oral-argument/listen-to-oral-arguments/.

Tuesday, February 6, 2024, 10:00 A.M.

Koss Corporation v. Bose Corporation, No. 22-2090, Courtroom 201, Panel B

Koss Corporation (“Koss”) filed a patent infringement suit in the Western District of Texas against Bose Corporation (“Bose”) alleging infringement of U.S. Patent Nos. 10,368,155 (“the ’155 patent”), 10,206,025 (“the ’025 patent”), and 10,469,934 (“the ’934 patent”). In response, Bose filed three petitions for inter partes review (“IPR”) challenging the validity of each of the three asserted patents. The Patent Trial and Appeal Board (“the Board”) instituted review on all grounds. In its Final Written Decision, the Board invalidated claims 1-14 of the ’155 patent. Koss appealed, arguing that the Board erred in concluding that one of the prior art references contained a typographical error and relying on that cited reference in invalidating the ’155 patent. Koss argues that the Board overlooked that Bose’s petition and expert declaration inconsistently referred to the typographical error in the cited reference and that Bose only asserted the typographical error theory in its Reply. Further, Koss argues that the Board did not have substantial evidence to conclude that the cited reference made the typographical mistake several times throughout the specification and figures. Bose argues in response that the Board’s conclusion that the cited reference contained a typographical error is a reasonable interpretation based on the disclosures of the cited references and Bose’s expert testimony. Bose further argues that the Board correctly concluded that a person of ordinary skill in the art would have recognized that the cited reference contained a typographical error. Bose argues that substantial evidence supports the Board’s finding that the cited reference contained a typographical error.

Tuesday, February 6, 2024, 10:00 A.M.

United Therapeutics Corp. v. Liquidia Technologies, Inc., No. 22-2133, Courtroom 201, Panel B

United Therapeutics Corporation (“UTC”) filed a patent infringement suit in the District of Delaware against Liquidia Technologies Incorporated (“Liquidia”) alleging infringement of U.S. Patent No. 9,604,901 (“the ’901 patent”). Liquidia filed a petition for IPR challenging the asserted claims of the ’901 patent on obviousness grounds. The Board instituted review, and in its Final Written Decision, the Board found claims 1-5, 8, and 9 of the ’901 patent to be unpatentable. UTC appealed, arguing that the Board erred in relying on unsworn expert testimony in determining that the claims of the ’901 patent were invalid. UTC argues that Liquidia’s expert declaration was legally deficient because it was not sworn and contained no penalty-of-perjury certification. UTC further argues that it timely objected to the expert declaration, and Liquidia failed to take proper corrective action within the required ten business days. UTC noted that the Board correctly rejected Liquidia’s untimely submission of the corrected expert declaration, but that the Board improperly relied on the originally submitted, unsworn declaration in determining that the claims of the ’901 patent are invalid. In response, Liquidia argues that Congress granted the Director of the United States Patent and Trademark Office (“USPTO”) rule-making authority over USPTO processes and procedures and that the Board maintains discretion to waive or suspend rules regarding affidavits and declarations in USPTO proceedings. Liquidia further argues that UTC did not suffer substantial prejudice because UTC deposed the expert under oath, filed a declaration of its own expert, and responded to the expert declaration in its Patent Owner Response and Sur-Reply. The USPTO intervened and argues that the Board’s consideration of the unsworn expert declaration was not an abuse of discretion. The USPTO argues that the Board properly exercised its authority to waive the attestation requirements regarding the expert declaration.

Tuesday, February 6, 2023, 10:00 A.M.

D3D Technologies, Inc. v. Microsoft Corp., No. 23-1462, Courtroom 402, Panel C

D3D Technologies, Inc. (“D3D”) filed a patent infringement suit in the Middle District of Florida against Microsoft Corporation (“Microsoft”) alleging infringement of U.S. Patent Nos. 9,980,691 (“the ’691 patent”), 8,384,771 (“the ’771 patent”), and 9,349,183 (“the ’183 patent”). Microsoft filed petitions for IPR challenging the validity of each of the asserted patents. The Board instituted review, and invalidated claims 1-9 and 11-21 of the ’691 patent in its Final Written Decision. D3D appealed, arguing that the Board improperly considered an obviousness argument that was not presented by Microsoft in determining that the claims of the ’691 patent were invalid. D3D notes that the Board properly determined that the prior art combination asserted by Microsoft did not teach the subject matter of the claims. However, D3D argues that the Board erred in considering an alternative theory, not presented by Microsoft, that one of the prior art references did teach the subject matter of the claims. Microsoft argues that the Board correctly interpreted Microsoft’s arguments in finding that the prior art taught all the limitations of the ’691 patent. Microsoft also argues that the Board properly found that Microsoft’s petition pointed to the teachings of the prior art in showing that the disputed limitation of the ’691 patent was met.