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August 2015 Litigation Luncheon

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August 2015 Litigation Luncheon

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August 2015 Litigation Luncheon

  1. 1. Patent Trial and Appeal Board Update • Statistics based first three years of AIA filings • 3,655 petitions – 3,277 (89.7%) inter partes review (IPR) – 368 (10%) covered business method (CBM) – 10 (.3%) post grant review (PGR) • Breakdown by subject matter – Electrical/computer (63%) – Biotech/pharma (9%)
  2. 2. Patent Trial and Appeal Board Update (cont.) • Trial Institutions* (awkward data) – IPR – 42% – CMB – 50% – PGR – 20% • Results – 12% of all claims available for challenge ultimately held invalid (4,496 of 38,462) (excludes claims dropped, settled or cancelled) – Compare this with first year’s worth of IPRs in which 25% of all claims available for challenge were ultimately held invalid
  3. 3. Expansion of Direct Infringement Akami v. Limelight (Fed. Cir. 2015) (en banc) • LimeLight is an online content distribution site, and the customers “tag” and “serve” content thereon. A user agreement requires this. • Jury found direct infringement, trial court judge overruled on reconsideration. • Supreme Court held that 271(b) requires a single direct infringer. • .
  4. 4. Expansion of Direct Infringement • An entity is responsible for the other’s performance of method steps when: – (1) the entity directs or controls the other’s performance, or – (2) where the actors for a joint enterprise • Before Direct infringement = all steps performed by a single entity or its agent • After Direct infringement = all steps can be attributed to a single entity or its agent

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