The following telephone arguments will be available to the public live. Access information will be available by 9 AM ET each day of argument at: http://www.cafc.uscourts.gov/public-access-arguments.
Tuesday, June 2, 2020
Egenera, Inc. v. Cisco Systems, Inc., No. 19-2015
Egenera initiated a district court case involving U.S. Patent No. 7,231,430 (the "'430 patent"), regarding virtual computer network technology. During litigation, Egenera requested that the USPTO correct inventorship of the '430 patent under 35 U.S.C.§ 256(a) to remove one of the named inventors. Subsequently, the district court held that the removed inventor was, in fact, an inventor, and that the '430 patent was invalid for incorrect identification of inventors. Egenera attempted to correct inventorship through § 256(b), but the district court held that Egenera is judicially estopped from doing so.
On appeal, plaintiff-appellant Egenera argues that the district court erred in holding that it is judicially estopped from invoking § 256(b) to correct inventorship because § 256(b) forbids invalidation of patents for errors in inventorship. Egenera further argues that there is no single-correction limit or judicial estoppel exception to § 256. Additionally, Egenera argues that, even if judicial estoppel could apply, none of the three criteria required to establish judicial estoppel has been satisfied. Defendant-appellee, Cisco, argues that Egenera's omission of an inventor was not "through error," as § 256 requires, and that Egenera did so to gain an advantage in litigation. As such, Cisco argues that the district court did not err in preventing Egenera from correcting inventorship. Cisco also argues that Egenera waived arguments against estoppel because it declined to address it at the district court. Cisco further asserts that even if Egenera did not waive this argument, the district court had sufficient support for its holding that Egenera is judicially estopped from correcting inventorship of the '430 patent.
Wednesday, June 3, 2020
Genentech, Inc. v. Immunex Rhode Island Corp., No. 19-2155
Genentech markets a cancer therapy drug called Avastin. Amgen filed a biologics license application ("BLA") to market a biosimilar drug called Mvasi. The Food and Drug Administration accepted Amgen's application, and Genentech identified multiple patents that it could assert against Amgen based upon its BLA and initiated suit in the District of Delaware. On October 6, 2017, Amgen attempted to serve notice under the Biologics Price Competition and Innovation Act ("BPCIA") that it would begin marketing Mvasi in as little as 180 days. At the district court, Genentech moved for a temporary restraining order and an injunction to prevent Amgen from launching Mvasi, based on an alleged failure to provide proper notice under the BPCIA. The district court denied the motion. The court held that Amgen's notice from October 2017 was sufficient to satisfy the requirements of the BPCIA and that Genentech's interpretation of the BPCIA could not succeed on the merits.
On appeal, Genentech argues that the district court erred in denying the motion for an injunction and concluding that it was unlikely to prevail on the merits of its interpretation of the BPCIA. Specifically, Genentech argues that the version of Mvasi that Amgen is now selling was not covered by the October 2017 notice, and thus, Amgen allegedly did not provide proper 180-day notice as required by the BPCIA. Genentech asserts that validating Amgen's interpretation of the notice requirement undermines the BPCIA. Defendants-appellees Immunex Rhode Island and Amgen argue that Amgen's October 2017 notice satisfies the 180-day notice requirement of the BPCIA since it pertains to the same "biological product" as the version of Mvasi that is being sold. They also argue that the district court did not err in its decision because Genentech allegedly did not even try to demonstrate a likelihood of success on its patent infringement claims.
Friday, June 5, 2020
Seoul Viosys Co., Ltd. v. P3 International Corp., No. 19-2384
Seoul Viosys initiated a patent infringement suit against P3 in August 2016. Seoul Viosys alleged that P3 infringed U.S. Patent No. 7,982,207 (the "'207 patent") by importing and selling its P7880 Bug Trap and sought an injunction and money damages. P3 offered evidence that allegedly showed its accused product had been on sale since June 2007, more than a year before Seoul Viosys filed the patent application that eventually issued as the '207 patent. P3 answered Seoul Viosys's complaint with a counterclaim for a declaratory judgement and an affirmative defense that the sale of the P7880 product prior to the critical date of the '207 patent rendered it invalid as anticipated. The district court granted summary judgment and held that the '207 patent had been anticipated.
On appeal, plaintiff-appellant Seoul Viosys argues that the district court did not give proper deference to the substantive and procedural burdens of proof. As an initial matter, Seoul Viosys argues that the burden to overcome the statutory presumption of validity rests on the challenging party. The district court's finding of invalidity was incorrect, Seoul Viosys claims, because the law requires P3 to offer evidence of material identity to establish invalidity under current precedent. Defendant-appellee, P3, argues that the district court properly held that the '207 patent is invalid because Seoul Viosys's own infringement contentions are enough evidence to satisfy the burden of proof that the elements of the claims were on sale prior to the critical date. Additionally, P3 argues that the fact that its product was on sale prior to the '207 patent's critical date demonstrates that the asserted claims are invalid by the on-sale bar, overcoming the statutory presumption of invalidity.
Originally published June 1, 2020
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