Spotlight on Upcoming Oral Arguments - September 2015

Poly-America v. API Industries, No. 15-1248 - Courtroom 402

In granting summary judgment of noninfringement, the district court relied on an expert opinion that API’s accused products and Poly-America’s patented design are not substantially similar under the ordinary-observer test. This appeal asks the Federal Circuit to determine whether experts can opine on what ordinary observers would perceived under FRE 701, and whether testimony identifying only theoretical uses of the accused products, not actual or frequent occurrences, is sufficient to warrant summary judgment.

 Wednesday September 9, 2015

 Ergowerx v. Maxell Corp. of America, No. 14-1641 - Courtroom 402

Under Mallinckrodt v. Medipart, 976 F.2d 700 (Fed. Cir. 1992), a sale does not exhaust the patentee’s rights when it is unauthorized or violates contractual conditions imposed by the seller. In this appeal, the parties debate whether Mallinckrodt’s conditional-sale doctrine remains good law after the Supreme Court’s Quanta decision. This question is currently before the en banc court in Lexmark International v. Impression Products, which will be argued in October.

Thursday September 10, 2015

Belden Inc. v. Berk-Tek LLC, No. 14-1575 - Courtroom 402

In this appeal, the IPR petitioner submitted an expert declaration in response to the patent owner’s preliminary response and accompanying expert declaration. The patent owner challenges the admittance of the petitioner’s declaration, arguing that petitioners should be required to produce all evidence in the initial petition. The PTO has intervened in this case.

Ethicon Endo-Surgery v. Covidien, No. 14-1771 - Courtroom 402

In another appeal involving IPR practice at the PTAB, the patent owner argues that the institution decision and the final decision in an IPR should be made by different decision makers, and not the same PTAB panel. It argues that the statute requires divided decision-making, such that the Director of the PTO makes the institution decision, and a PTAB panel makes the final decision. The PTO has intervened in this case.

Friday September 11, 2015

MCM Portfolio v. Hewlett-Packard, No. 15-1091 - Courtroom 201

In this case, MCM Portfolio argues that the IPR practice at the PTAB is unconstitutional for violating the 7^th Amendment right to a jury trial. The PTO has intervened in this case.