Toyota Goes After David Breed Auto-Monitoring Patents, Week of July 8, 2013

| July 15, 2013

American Vehicular Sciences (AVS) has filed patent infringement actions in June 2012 against numerous automobile makers, including two cases against Toyota in the Eastern District of Texas.  Last week Toyota struck back, requesting inter partes review of eleven AVS patents (see inter partes review Request No. (1) to (11)).  The patents all name David Breed as the inventor and all claim systems for monitoring functions in automobiles, essentially to identify and diagnose problems with those functions.  Other auto-makers sued by AVS are BMW, Honda, Hyundai, Kia, and Mercedes.  AVS is a subsidiary of Acacia Research Corporation.  In February, Acacia reported that in its fiscal year 2012 it had acquired control of 55 patent portfolios and that it had revenues of $250,727,000.

The following inter partes review requests were filed:

(1)         IPR2013-00412 & IPR2013-00413 (electronically filed) – U.S. Patent No. 6,738,697 entitled TELEMATICS SYSTEM FOR VEHICLE DIAGNOSTICS and owned by American Vehicular Sciences, LLC.  Filed July 8, 2013 by Toyota. The ‘697 patent is currently the subject matter of litigations styled American Vehicular Sciences LLC v. Toyota Motor Corp., et al. (Case No. 6:12-CV-405 (E.D. Tex.)); American Vehicular Sciences LLC v. BMW Grp. A/K/A BMW AG et al. (Case No. 6:12-CV-412 (E.D. Tex.)); American Vehicular Sciences LLC v. Hyundai Motor Co. et al. (Case No. 6:12-CV-776 (E.D. Tex.)); American Vehicular Sciences LLC v. Kia Motors Corp. (Case No. 6:13-CV-148 (E.D. Tex.)); American Vehicular Sciences LLC v. American Honda Motor Co., Inc. et al. (Case No. 6:13-CV-226 (E.D. Tex.)); and American Vehicular Sciences LLC v. Mercedes-Benz U.S. Int’l Inc. (Case No. 6:13-CV-310 (E.D. Tex.)).


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Category: Recent Requests

APJs Issue another Ruling on One-Year Deadline to File IPR Requests

| July 11, 2013

Earlier this week, we reported a ruling by the APJs in The Scotts Company v. Encap, IPR2013-00110, regarding the AIA requirement that a party file a petition for inter partes review within one year of the date that party had been served with an infringement complaint. 35 U.S.C. § 315(b).  The APJs have now issued another ruling on the § 315(b) one-year deadline, this time in BAE Systems v. Cheetah Omni, IPR2013-00175.  Again, they found that the petition had been timely filed.

Here are the relevant facts:

  • On November 12, 2010, Cheetah filed a patent infringement complaint in District Court against BAE Systems.
  • On February 10, 2011, Cheetah voluntarily dismissed its infringement action.
  • On April 22, 2011, Cheetah filed a complaint in the U.S. Court of Federal Claims against the United States, asserting infringement of the same patent and identifying BAE Systems’ Boldstroke™ system as an infringing product.
  • On March 19, 2012, BAE Systems was served with a notice by the Federal Claims court requesting that BAE Systems appear and assert any claims or interest it may have in the Federal Claims litigation.
  • On March 4, 2013BAE Systems filed the present IPR petition.


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Category: Inter Partes Review

Microsoft Challenges Motorola Videogame Console Patent, Week of July 1, 2013

| July 9, 2013

Last Monday Microsoft requested ex parte reexamination of a Motorola videogame console patent (see ex parte Request No. (1)).  Motorola’s patent was the subject of a major U.S. International Trade Commission investigation.  That investigation concluded in early June when the ITC ruled that Motorola had failed to prove infringement.  A parallel infringement action is underway in Wisconsin.

The number of pharmaceutical patents challenged in inter partes review proceedings continues to grow – most notable last week were requests filed by Apotex against three Alcon patents claiming “multi-dose, self-preserved ophthalmic compositions … [that] possess sufficient antimicrobial activity to satisfy USP preservative efficacy requirements” (see inter partes review Request Nos. (13), (14) & (15)).


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Category: Recent Requests

APJs Rule on One-Year Filing Deadline for IPR Requests

| July 8, 2013

The AIA provides that a party may not file a petition for inter partes review if that party had been served with an infringement complaint more than one year previously. 35 U.S.C. § 315(b).  Fine, but how does this provision apply to cases where the accused infringer waives service, i.e., where service never occurs?

In The Scotts Company v. Encap, IPR2013-00110, the patent owner Encap argued that the challenger Scotts Company had failed to file its petition before the one-year deadline because Encap had sued Scotts Company for infringement of the ’259 patent more than one year before Scotts Company filed its IPR petition.

The APJs disagreed with Encap, determining that Scotts Company’s petition was timely filed. They explained that the “mere notification of a complaint does not trigger the one-year statutory bar.” They cited Federal Rule 4(d)(4) for the nuance that “[w]hen the plaintiff files a waiver, proof of service is not required and these rules apply as if a summons and complaint had been served at the time of filing the waiver.” (Emphasis added.)

The APJs therefore held that where a petitioner waives service of a summons, the one-year time period begins on the date on which waiver is filed.  Since Scotts Company waived service of a summons in the parallel infringement action no earlier than January 12, 2012, and had filed its petition on January, 10, 2013, Scotts’ petition was timely filed.

Category: Inter Partes Review
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