For the second time in two weeks, our Case of the Week concerns issues relating to Article III justiciability of an appeal from an IPR proceeding. Last week we covered the issue of a petitioner's standing to bring an appeal from a lost IPR. See our write-up of the
Cytonome filed suit against ABS for infringement of the '161 Patent in
Ultimately, the argument shifted from one of standing to one of mootness. But the Federal Circuit found them to be largely interchangeable concepts, quoting the
The Federal Circuit then assessed the case in light of the
Applying the same analysis here, the Federal Circuit found that Cytonome's decision not to appeal the non-infringement decision from the district court mooted ABS's IPR appeal. Although Cytonome's affidavit was substantially narrower in scope than the covenant not to sue in Already, it was nonetheless "coextensive with the asserted injury in fact."
The Court also considered ABS's late attempt at oral argument to vacate the IPR decision. The Court found this attempt forfeited, and denied to order vacatur.
A copy of the opinion can be here.
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ALSO THIS WEEK
In an appeal from a district court's final judgment of infringement, willfulness, and damages, the Federal Circuit reversed, finding the patent not infringed based on a revised claim construction. The Court first addressed whether the claim term, which was in the first paragraph of the claim, but followed the word "comprising" in that paragraph, was part of the preamble. The Court concluded that it was not part of the preamble, but either way, was limiting. The court then concluded that the phrase "a plurality of" followed by a list using the conjunctive "and" before the last item in the list requires more than one of each of the items in the list. The district court had adopted a different construction, finding that the above construction would have "exclude[d an] embodiment[] disclosed in the specification," in contravention to the Federal Circuit's holding in
The Federal Circuit rejected the district court's interpretation and application of Oatey. The Court explained that while Oatey correctly stipulates a general reluctance to exclude an embodiment, such reluctance must not "outweigh the language of the claim." Courts should not infer that all embodiments are included in a claim when there is probative evidence that indicates otherwise. Accordingly, the Court reversed the district court's grant of summary judgment to SIMO and entered a judgment of non-infringement for uCloudlink, thus also undoing the willfulness and damages findings following a jury trial.
A copy of the opinion can be found here.
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