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April 25, 2017
New York | Washington DC | London | Paris | Frankfurt
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Overview of today’s program
Our quarterly round-up of significant IP decisions
A discussion of developments at the International Trade Commission
A review of potential and pending legislation impacting intellectual property rights
QUARTERLY ROUND-UP OF DECISIONS
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Cases we will discuss today
Star Athletica LLC v. Varsity Brands, Inc. (Supreme Court)
Life Technologies v. Promega (Supreme Court)
Zenimax v. Oculus VR (Northern District of Texas jury award)
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Star Athletica, LLC v. Varsity Brands, Inc.
Supreme Court: artistic elements (e.g., stripes) on a cheerleading outfit are eligible for
protection under the copyright law
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Overview of Star Athletica case
Varsity Brands sued Star Athletica for infringing copyrighted designs
Star Athletica argued that the designs were not eligible for copyright protection under 17 U.S.C. §101
a “useful article, such as a piece of furniture or clothing, is ineligible for copyright protection”
But, artistic elements reproduced on a useful article can be copyrighted if they “can be identified
separately from, and are capable of existing independently of, the utilitarian aspects of the article”
The District Court held: uniform designs are not eligible for copyright protection
Artistic elements could not be separated from functional purpose: identifying the wearer as a
cheerleader
The Sixth Circuit reversed: designs on uniforms are eligible for copyright
Artistic elements can be separated from the functional purpose: “cover[ing] the body, wick[ing] away
moisture, and withstand[ing] the rigors of athletic movement”
Star Athletica asked the Supreme Court to clarify the test for what makes design elements separable
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SCOTUS Star Athletica test
March 22, 2017: the designs are copyright eligible (6-2 opinion)
Two-part separability test:
1. Whether it is possible to “look at the useful article and spot some two- or three-dimensional element that appears
to have pictorial, graphic, or sculptural qualities”; and
2. Whether “the feature for which copyright protection is claimed would have been eligible for copyright protection as
a pictorial, graphic, or sculptural work had it originally been fixed in some tangible medium other than a useful
article”
Focus of the test is on the design features, not the underlying useful article
As such, it is not relevant that the useful article would no longer be useful or marketable without the
design element
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Stripes on cheerleader uniforms are copyright eligible
Applying the test, the Court held that designs on a cheerleader uniform may be copyrighted
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Step One: “separate identification”
“one can identify the decorations as features having pictorial,
graphic, or sculptural qualities”
“if the arrangement of colors, shapes, stripes, and chevrons on the
surface of the cheerleading uniforms were separated from the
uniform and applied in another medium – for example, on a
painter’s canvas – they would qualify as ‘two-dimensional . . .
works of . . . art’”
Step Two: “independent existence”
Dissent: designs are not separable from the uniforms
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Varsity’s designs cannot be identified separately or exist independently because a picture
of the designs is a picture of the uniforms themselves, like Van Gogh’s picture of shoes
“Varsity cannot obtain copyright
protection that would give them the
power to prevent others from making
those useful uniforms, any more than
Van Gogh can copyright comfortable old
shoes by painting their likeness”
Life Technologies v. Promega
Supreme Court: a company is not liable for infringement under §271(f)(1) when it exports
a single component from the United States that is later incorporated into a patented
invention in a foreign country and sold abroad
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Life Technologies v. Promega
Section 271(f)(1) of the Patent Act
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Whoever without authority supplies or causes to be supplied in or
from the United States all or a substantial portion of the
components of a patented invention, where such components
are uncombined in whole or in part, in such manner as to actively
induce the combination of such components outside of the United
States in a manner that would infringe the patent if such
combination occurred within the United States, shall be liable as
an infringer.
Overview of the Life Technologies case
Promega sued Life Technologies for infringing patent on genetic testing kits; the patented invention had
five components:
1) a mixture of primers that mark the part of a DNA strand to be copied
2) nucleotides for forming replicated strands of DNA
3) an enzyme known as Taq polymerase
4) a buffer solution for the amplification of the DNA
5) control DNA
Life Technologies manufactured four of the components in the United Kingdom, assembled the testing kits
in the U.K., and sold the vast majority of the kits outside of the U.S.
One component – the Taq polymerase – was shipped to the U.K. from the United States
Promega sought worldwide royalty, arguing that testing kits sold abroad infringed under §271(f)(1)
The District Court granted Life Technologies judgment as a matter of law, finding that a single component
cannot constitute a “substantial portion” of the components of a patented invention
The Federal Circuit reversed, reasoning that “substantial” in §271(f)(1) can mean “important” or
“essential,” and that Taq polymerase is “substantial” because it is required for the invention to work
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SCOTUS Life Technologies test
February 22, 2017: Life Technologies did not infringe Promega’s patent under §271(f)(1) (7-0 opinion)
Test for determining infringement under §271(f)(1) is “quantitative”
Patent Act does not define “a substantial portion of the components”
Ordinary meaning can be both quantitative and qualitative
Statutory context “points to a quantitative meaning”
Neighboring terms in the statute – “all” and “portion” – are quantitative
Modifying the phrase “of the components” would be unnatural if “substantial portion” were qualitative
Under the “quantitative” test, a single component can never be “a substantial portion” under
§271(f)(1); there must be multiple components to constitute “a substantial portion”
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Open questions following Life Technologies
What is a “component”?
Should courts look at the invention itself or the claims of the patent?
If the invention, what counts as one component?
If the patent, is each limitation of the claim one component?
What if a limitation has multiple elements?
What if multiple limitations address the same element?
How much more than one component is required under the quantitative test?
What happens if a patented invention only has two components?
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Zenimax Media Inc. v. Oculus VR, LLC (N.D. Tex)
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N.D. Texas Jury: Oculus VR (a Facebook subsidiary), the founder of Oculus (Palmer
Luckey), and the CEO of Oculus (Brendan Iribe) must pay Zenimax Media and id Software
$500 million for the use of Zenimax/id Software IP
Overview of the Zenimax case
Early collaboration on the development of a virtual reality (VR) gaming system
John Carmack – legendary programmer and founder of id Software
Palmer Luckey – 19-year-old video game enthusiast and inventor of the “Rift” VR headset
Attempts to commercialize VR technology
Oculus VR formed; Brendan Iribe joins as CEO
Discussions about Zenimax equity stake
Kickstarter video and PowerPoint presentations to potential investors
Carmack leaves id Software to become Chief Technology Officer of Oculus
$2 billion+ Facebook acquisition of Oculus
Lawsuit and alleged spoliation of evidence
Post-lawsuit Google search: “how do you wipe a hard drive on mac osx”
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Causes of action and jury verdict
Cause of Action Jury Award
Misappropriation of Trade Secrets
Alleged: Defendants had stolen various types of
technology from id Software related to VR systems
$0
Jury found that the defendants did not
misappropriate id Software’s trade secrets
Copyright Infringement
Alleged: Defendants infringed Zenimax copyrights
by literally and non-literally copying the software
$50M
Jury found that Oculus was liable for infringement
Breach of Contract
Alleged: Defendants violated a non-disclosure
agreement (NDA), which allowed the use of
confidential Zenimax information only for a “Proper
Purpose”
$200M
Jury found that Luckey breached the NDA, but was
relieved of liability under the doctrine of laches; but,
the jury also found that Oculus was Luckey’s
successor-in-interest and liable for damages
Lanham Act False Designation
Alleged: Defendants falsely designated the Rift as
their invention when it was built using id Software’s
intellectual property
$250M
Award included $50M against Luckey, $50M against
Oculus, and $150M against Iribe
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Issues to watch – defendants’ post-trial briefing
False designation
Whether a Lanham Act claim of false designation applies when the producer of tangible product is correctly
identified
Whether money damages can be awarded in the absence of evidence of actual consumer confusion
Whether Zenimax was required to show economic or reputational injury proximately caused by the false
designation
Copyright infringement
Whether literal copying of seven lines of code was de minimis
Whether Oculus copied non-literal elements of Zenimax’s software
Whether Zenimax introduced evidence that $50 million was a reasonable royalty
Breach of Contract
Whether Oculus can be liable for breach when Palmer established a defense of laches
Whether the NDA is unenforceable due to the failure to define “Proper Purpose”
Whether the $200 million award is based on an actual loss Zenimax suffered as a result of the breach of the NDA
Impact of spoliation instruction and testimony
Whether the court erred in allowing testimony from a court-appointed expert that Oculus had destroyed evidence
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Issues to watch – Zenimax’s post-trial briefing
Entitlement to prejudgment interest ($78.3 million - $89.8 million)
Trebling of false designation award to $750 million due to willfulness
Entitlement to award of attorneys’ fees ($40 million)
Availability of injunctive relief
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DEVELOPMENTS AT THE INTERNATIONAL TRADE COMMISSION
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Developments at the ITC
Non-practicing entities (“NPEs”) and the domestic industry requirement
Obtaining a general exclusion order (“GEO”)
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The ITC and IP litigation
The ITC is a nonpartisan federal agency that provides trade expertise to the legislative and
executive branches and conducts investigations of unfair trade practices
Investigations are based on 19 U.S.C.§1337 – “Unfair practices in import trade”
“Statutory” unfair acts, such as importation of articles that infringe a patent, trademark, or copyright,
under §1337 (a)(1)(B)-(E)
Other unfair acts, such as importation of articles that misappropriate a trade secret, under §1337
(a)(1)(A)
Akin to a district court bench trial, with relaxed evidentiary standards
Remedies are limited to exclusion orders and cease & desist orders – no damages
An ITC Investigation may be advanced if:
there is an “article” that infringes IP;
that is imported; and
you have a “domestic industry” related to the IP
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The domestic industry requirement
Two-prong analysis, based on §1337’s origin as a statute to protect U.S. industry
“Technical Prong”
Is the asserted IP used in the U.S. by
complainant?
Defined by§1337(a)(2)
“Economic Prong”
Is there U.S. investment by complainant related to the
asserted IP?
Defined by§1337(a)(3) as:
(A) significant investment in plant and equipment;
(B) significant employment of labor or capital; or
(C) substantial investment in its exploitation,
including engineering, research and development, or
licensing
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Showing domestic industry
Typical operating company or
manufacturer with U.S. presence
“Technical prong” - met by making,
using, and/or selling a product or
process covered by one or more
claims of the asserted patent
“Economic prong” - met by showing
investments related to the making,
using, and/or selling of the product or
process, such as investments in
plants, equipment, labor, HQ, etc.
NPE
Generally has no substantial plant,
equipment, labor, or capital
investments in the U.S.
Thus, it must show its own
“substantial investment in the
exploitation of the patent-in-suit,
including engineering, research, or
licensing” (Category C)
OR, an NPE can cite to plant,
equipment, labor, or capital
investments in the U.S. by its
licensee(s) (Category A, B)
An inability to show domestic
industry has traditionally limited an
NPE’s ability to bring ITC actions.
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NPEs are a small percentage of complainants
Category 1 NPE – Entities that do not make products that practice the asserted patents, but are inventors
that performed R&D, research institutions that rely on licensing, start-ups that have not yet made products,
and manufacturers that make other products
Category 2 NPE – Entities that do not make products that practice the asserted patents and whose
business model primarily focuses on purchasing and asserting patents
30 34
23
4656
2733 36 34
49
46
4
6
4
63
4
1
1
4
4
9
76 3 2
1
0
10
20
30
40
50
60
70
80
2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
ITC Cases By Complainant Type
Non-NPE NPE Category 1 NPE Category 2
SOURCE: https://www.usitc.gov/intellectual_property/337_statistics_number_section_337_investigations.htm
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NPEs’ showings of a domestic industry
Domestic industry found insufficient:
One license after litigation – Motiva, LLC v. ITC, 716 F.3d 596 (Fed. Cir. 2013)
One license after multiple litigations – John Mezzalingua Assocs. v. ITC, 660 F.3d 1322 (Fed. Cir.
2011)
Domestic Industry found sufficient:
A history of R&D and licensing of CDMA technology to multiple handset manufacturers, and
incorporation of that technology into 3G standards. InterDigital Communs., LLC v. ITC, 707 F.3d 1295
(Fed. Cir. 2013)
A history of R&D and then a focus on licensing, with litigation only where necessary. Certain
Consumer Electronics With Display And Processing Capabilities, Inv. No. 337-TA-884, Initial
Determination (Aug. 29, 2014)
NPEs should show a comprehensive licensing scheme, preferably directed toward adoption and
development of technology, rather than simple revenue production
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Certain Silicon-On-Insulator Wafers (337-TA-1025)
On March 10, 2017, the Commission elected not to review an ALJ’s determination that an NPE
had demonstrated domestic industry
The complainant (Silicon Genesis) relied exclusively on its licensee’s (SunEdison
Semiconductor) investments in the licensee’s own plant, equipment, R&D, and labor
Respondent argued that:
Complainant should not be allowed to rely exclusively on its licensee’s activities; and
If the complainant could so rely, the licensee should be joined as a co-complainant
The Commission did not disagree with the ALJ’s rejection of both arguments
“Soitec provided no case authority for its position because the legal precedent is to the contrary” (14)
Commission decisions have held that the economic prong of the domestic industry requirement can
“be established where a complainant bases its claim exclusively on the activities of a
contractor/licensee” (16)
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Intellectual Ventures
On March 21, Intellectual Ventures, perhaps the most famous NPE in the U.S., filed an ITC
complaint against various automotive companies
In previous ITC actions, IV had relied on its own licensing actions to show domestic industry
This time, IV relied on its licensee’s activities to show domestic industry
Encap Technologies, Inc., the predecessor-in-interest of the asserted patents, is a
manufacturer and has made capital and labor investments to support manufacturing
IV has the resources to take its cases up on appeal if the Commission finds against it on
domestic industry
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Impacts
A roadmap for other NPEs to get in the
door of the ITC – rely on at least one
successful licensee
Something to consider when settling with
NPEs – licensees may be dragged into an
ITC case
Obligation to assist?
Cost allocation?
Developments at the ITC
Non-practicing entities (“NPEs”) and the domestic industry requirement
Obtaining a general exclusion order (“GEO”)
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Remedies at the ITC
Exclusion orders
Limited exclusion order – normally granted – prohibits entry into the U.S. of infringing products
associated with specifically named respondents or their agents
General exclusion order – infrequently granted – prohibits any importation of any covered products by
any party (regardless of whether the importer was a party to ITC action)
U.S. Customs & Border Protection (Customs) enforces exclusion orders
Intellectual Property Rights (IPR) Branch interprets orders and issues guidance to ports
Parties can work with Customs to provide guidance on enforcement
Cease and desist orders
Prevents parties from engaging in infringing activities
Not enforced by Customs
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Our client’s problem
In Certain Electric Skin Care Devices, Brushes, and Chargers Therefor, and Kits Containing the Same,
Inv. No. 337-TA-959, we were recently able to obtain a broad general exclusion order covering all
products that infringe two of our client’s utility patents
Our client came up with a new product that was wildly successful and created an entirely new market
Our client saw that dozens of foreign companies were manufacturing and importing knockoffs and
infringing devices that were undercutting our client on price and were of poor quality and performance
Our client came to us seeking a strategy to effectively and immediately stop the infringement
We ultimately recommended seeking a general exclusion order from the ITC
Quicker resolution than in district court
Broader and more likely injunctive relief than in district court
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Getting a general exclusion order
There is little specific ITC guidance on what it considers when reviewing GEO requests
Pursuant to §1337(d)(2), a GEO may issue where:
(A) a general exclusion from entry of articles is necessary to prevent circumvention of an exclusion
order limited to products of named persons; or
(B) there is a pattern of violation of this section and it is difficult to identify the source of infringing
products
A GEO must also not place an undue burden on public health and welfare, competitive conditions in the
United States, or on U.S. consumers
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Necessary to prevent circumvention of a LEO
In the ‘959 Investigation, the Commission found that:
Respondents change their names to avoid detection
Respondents operate under multiple names and distribute through multiple entities
Demand for infringing products is strong and profits are high
Low barriers to entry – low costs, easy anonymous sales
Sources of infringing products are hard to identify
Same products under different names
Relabeled or rebadged products
The Commission has also previously considered:
Availability of raw materials and necessity of skilled labor
Minimal R&D costs
Permissive business conditions in foreign countries
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Pattern of violation/difficult to ID products
In the ‘959 Investigation, the Commission found:
An unending stream of infringing products from China and S. Korea
Easy to register new companies in China and S. Korea
Complainants have brought numerous previous suits to address infringement, but the problem
remains unsolved
The Commission has also previously considered:
Number of manufacturers engaged in unauthorized importation of infringing products is large, difficult
to enumerate, and fluid
Actions to disguise the manufacturer and to eliminate clear branding on the goods of the producer
Ease with which a company can produce the infringing products
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PENDING AND POTENTIAL LEGISLATION
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IP legislation update: 115th Congress
IP-related legislation introduced to date:
Register of Copyrights Selection and Accountability Act of 2017 (H.R. 1695)
Copyright Office for the Digital Economy Act (H.R. 890)
Regulatory Accountability Act of 2017 (H.R. 5)
Preserve Access to Affordable Generics Act (S. 124)
Possible additional subject areas for IP legislation:
Scope of 35 U.S.C. §101
Venue
Leftover portions of reform bills from the 114th Congress
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Register of Copyrights Selection and Accountability Act of 2017 (H.R. 1695)
Make Register of Copyrights a Presidential appointee
10-year term limit
Renewable by another Presidential nomination and Senate confirmation
May be removed by the President upon notification to the House and Senate
Panel to recommend three candidates for
President to consider for nomination
Speaker of the House
President pro tempore of the Senate
the Majority and Minority Leaders of the House
and Senate
the Librarian of Congress
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CODE Act (H.R. 890)
Copyright Office for the Digital Economy Act
Would establish the Copyright Office as an independent agency
Same provisions as H.R. 1695 except reappointment is not allowed
Overhaul of the copyright registration system
Creation of a Copyright Advisory Board
Required study of the mandatory deposit provisions
Regulatory Accountability Act of 2017 (H.R. 5)
Repeals Chevron deference to agency interpretations of statutes
Chevron USA v. NRDC, 467 U.S. 837 (1984)
Held that reviewing courts should defer to an agency’s interpretation of an ambiguous
statute
Bill modifies the scope of judicial review of agency actions
Authorizes courts reviewing agency decisions to “decide de novo all relevant questions of
law, including the interpretation of constitutional and statutory provisions, and rules made by
agencies”
Could allow challenges to USPTO’s rules governing inter partes reviews and other AIA rules
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Possible subject areas for IP legislation
Scope of 35 U.S.C. §101
Venue
Leftover portions of reform bills from the 114th Congress
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§101 – How did we get here?
Congress added§101 via the Patent Act of 1952
Congress intended a broad scope of patent-eligible subject matter
Congress intended to remove the requirement of “invention” that U.S. law had been relying
on as the standard for patentability
Moved the concept of “invention” to§103
Supreme Court has narrowed the scope of patent-eligible subject matter
Three judicial exceptions to patentability
Supreme Court has imported an “invention” standard back into the § 101 analysis
Bilski v. Kappos, 561 U.S. 593 (2010)
Mayo Collaborative Servs. v. Prometheus Labs., 566 U.S. 66 (2012)
Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013)
Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014)
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Amending 35 U.S.C. §101?
Professional organizations support amending §101
Both the current and most recent directors of the USPTO, Michelle Lee and David Kappos,
have called for change
Amicus briefs calling for repeal or amendment
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IPO’s proposed changes to§101
Establishes eligibility
based on the claimed
invention, not a gist
or portion thereof.
Eligibility based on
utility only. Novelty is
left to§102.
Returns the eligibility
analysis to its original
intent, absent creep
from other provisions.
Returns the abstract
idea exception back
to its original intent.
45
Possible subject areas for IP legislation
Scope of 35 U.S.C. §101
Venue
Leftover portions of reform bills from the 114th Congress
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Venue – how did we get here?
28 U.S.C.§1400(b)
“(b) Any civil action for patent infringement may be brought in the judicial district where the
defendant resides, or where the defendant has committed acts of infringement and has a
regular and established place of business.”
28 U.S.C.§1391
(c): “A corporation may be sued in any judicial district in which it is … doing business, and
such judicial districts shall be regarded as the residence of such corporation for venue
purposes.”
Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222 (1957)
“28 U.S.C. §1400(b) is the sole and exclusive provision controlling venue in patent
infringement actions, and that is not to be supplemented by the provisions of [§] 1391(c).”
353 U.S. at 229.
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Venue – how did we get here?
Congress implemented minor amendments to§1391 in 1988
Old: defines “residence” of a corporation “for venue purposes.”
New: “For venue purposes,” a corporation “shall be deemed to reside.”
VE Holdings Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990)
Held that §1400(b) and §1391(c) are read together
TC Heartland LLC v. Kraft Food Brands Group LLC, Supreme Court Docket No. 16-341
Congress may step in if the Supreme Court does not overrule the Federal Circuit’s use of
§1391(c) and reinforce that §1400(b) is the sole appropriate measure
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114th Congress – VENUE Act
Venue Equity and Non-Uniformity Elimination Act of 2016
“(b) Notwithstanding subsections (b) and (c) of section 1391, any civil action for patent infringement or any action for a
declaratory judgment that a patent is invalid or not infringed may be brought only in a judicial district—
(1) where the defendant has its principal place of business or is incorporated;
(2) where the defendant has committed an act of infringement of a patent in suit and has a regular and established
physical facility that gives rise to the act of infringement;
(3) where the defendant has agreed or consented to be sued in the instant action;
(4) where an inventor named on the patent in suit conducted research or development that led to the application for the
patent in suit;
(5) where a party has a regular and established physical facility that such party controls and operates, not primarily for
the purpose of creating venue, and has—
(A) engaged in management of significant research and development of an invention claimed in a patent in suit
prior to the effective filing date of the patent;
(B) manufactured a tangible product that is alleged to embody an invention claimed in a patent in suit; or
(C) implemented a manufacturing process for a tangible good in which the process is alleged to embody an
invention claimed in a patent in suit; or
(6) in the case of a foreign defendant that does not meet the requirements of paragraph (1) or (2), in accordance with
section 1391(c)(3).”
49
Possible subject areas for IP legislation
Scope of 35 U.S.C. §101
Venue
Leftover portions of reform bills from the 114th Congress
50
Unfinished legislation from 114th Congress
Reform Bills
H.R. 9, the Innovation Act
S. 1137, Protecting American Talent and Entrepreneurship (PATENT) Act
S. 632, the STRONG Patents Act
Specific-Issue Bills
H.R. 2045, the TROL Act
H.R. 1057, S. 560 - PARTS Act
H.R. 5757, the CASE Act of 2016
S. 1402, Patents for Humanity Program Improvement Act
H.R. 4826, the Trade Protection Not Troll Protection Act
H.R. 3261, the Stop Online Piracy Act (113th Congress)
Certain provisions of the Innovation Act, such as the imposition of tougher pleading standards for patent
cases, are moot after recent changes in the Federal Rules of Civil Procedure
Other provisions of the Innovation Act remain contentious issues, including: cost-shifting for discovery; a
presumption of so-called “loser pays” fee shifting; and end-user protection from infringement allegations
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114th Congress – reform bill comparison
Issue Innovation Act (H.R. 9) PATENT Act (S. 1137) STRONG Patents Act
(S. 632)
Financial
incentives
Mandates imposition of
attorneys’ fees, with
exceptions. Potential to go
after shell entity’s owners and
investors for attorneys’ fees.
Mandates imposition of attorneys’
fees, with exceptions, upon motion of
prevailing party. Potential to go after
shell entity’s owners and investors for
attorneys’ fees.
N/A
Post-grant
proceedings
- Amend PGR estoppel
provision to delete “or
reasonably could have
raised.”
- Eliminate broadest
reasonable interpretation
claim construction
standard.
- Measures to address
serial or redundant
petitions.
- Other rulemaking
changes.
- Amend PGR estoppel provision to
delete “or reasonably could have
raised.”
- Eliminate broadest reasonable
interpretation claim construction
standard.
- Mandate different PTAB panels
for institution and final decision.
- Other rulemaking changes.
- Ease patent owner
amendment
standards.
- Heighten petitioner’s
burden of proof.
- Eliminate broadest
reasonable
interpretation claim
construction standard.
- Mandate different
PTAB panels for
institution and final
decision.
52
114th Congress – Reform Bill Comparison
Issue Innovation Act (H.R.
9)
PATENT Act (S. 1137) STRONG Patents Act (S. 632)
Transparency Plaintiff to disclose all
licenses, investors, and
parent entities.
Plaintiff to disclose all
licenses, investors, and
parent entities.
N/A
Divided
infringement
N/A N/A For divided infringement, “it shall not be
a requirement that the steps of the
patented process be practiced by a
single entity.”
Discovery
limitations
Mandatory stays on
discovery during the
pendency of certain
pretrial motions.
Mandatory stays on
discovery during the
pendency of certain pretrial
motions.
N/A
Other provisions - Curb abusive demand
letters
- Automatic customer
suit stays
- Curb abusive demand
letters
- Automatic customer suit
stays
- Curb abusive demand letters
- Give discretion to district courts to
award enhanced damages if “by a
preponderance of the evidence”
infringement is shown to be “willful
or in bad faith”
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