Roundtable Discussion; The Future of Mineral Sands. Watch the video here.
In relation to my comments earlier about still going to trial regardless of the PTAB's decision, see an article from yesterday referencing Judge Albright (he is in the WDTX versus us in EDTX with Gilstrap). I have posted in two parts.
Albright Says He'll Very Rarely Put Cases On Hold For PTAB
Western District of Texas Judge Alan Albright on Tuesday detailed the unusual situations in which he'd stay a patent case to await a Patent Trial and Appeal Board decision, but said that even amid the pandemic, he believes he can finish cases faster than the board.
Speaking at the American Intellectual Property Law Association's virtual spring meeting, Judge Albright, the nation's busiest patent judge, said that during his two and a half years on the bench, he has only put "one or two" cases on hold so the PTAB can review the patent.
While some other judges routinely stay patent cases until the board determines whether the patent at issue is invalid, Judge Albright said he sees no reason to do so in most instances, since he schedules trials so quickly that they'll likely be over before the board rules. "We look at every request carefully," he said, and litigation will be put on hold "if there's a situation where it would make really good sense to stay a case."
However, Judge Albright said to date he has only done that when the plaintiff has first sued other companies over a patent in a different district, and the defendant in that case has initiated a PTAB review that is well underway by the time another company is sued in the Western District of Texas. In that scenario, where "the PTAB process is already down the road and it looks like that would be the most prudent way to do it, that's fine and I would defer" to the board, Judge Albright said.
In just about every other case, though, Judge Albright said he has scheduled cases to go to trial within 24 months of when the complaint is filed. As a result, he said he doesn't see the need to wait for the PTAB to rule on a defendant's challenge to the patent, since the board typically makes decisions in 18 months. He noted that while "COVID has certainly interrupted our trial process," he's still scheduling trial dates for two years out, as he said in prepandemic times was his goal.
Noting that his docket currently has 1,250 civil cases, about 60% of which are patent cases, he added that "my belief is that if someone files a patent case, they're entitled to have a jury trial," but that the quick trial dates also encourage parties to reach settlements. Judge Albright said his impression is that the PTAB was created by the America Invents Act in 2011 due to concerns that patent cases in district court were taking too long and that there needed to be a faster forum. He said that is what he's trying to provide in his court.
I am surprised the PTAB has not made a decision to institute yet as we are past the usual 6 months for them to do so. I simply wonder if this is down to COVID delays. Even if they do institute, I would expect Gilstrap to disregard institution and would expect we go to trial and then see what happens down the route of the patent office. Keep in mind, it is not just a matter of institution either, it depends on which patents and which claims in the patents they institute proceedings on.
The PTAB is walking on egg shells at the moment as we all know (Arthrex and general distrust in the IPR process) and I would imagine that they will have certainly looked to Judge Gilstrap's original ruling not to stay the proceedings ahead of the IPR decision. Biden (or his commerce secretary) hasn't even appointed someone to lead the office so its difficult to see which way they will lean going forward.
I would love to see the SCOTUS scorch the PTAB with an all encompassing ruling on appointments clause challenges - allowing decisions to be appealed where the appointments clause was not raised in an original appeal or challenge - but I am not sure it will happen. We are in a good spot as we will be able to raise that challenge if and need be given any appeal from our side would come post-Arthrex.
We are in good hands - counsel and management have done a great job so far and there is all to play for. That is even without talking about our core business, which looks very exciting. It is going to be an interesting next 6-12 months.
Sorry I tailed off on one sentence in excitement - my point was the company may believe they could go back to the PTAB and request to change the patent language on the '068, but the key issue is you cannot broaden the terms of a patent. I.e. we have 'polymer' in the patent but we cannot broaden the term to say 'polymerizable substance' - you can only narrow or further specify the definition of the term.
The bottom line is that on the first four terms, Nanoco has prevailed on their construction but with respect to “polymer” there was a long debate in court between the two parties as per what the patent literature really meant - but it doesn't mean a whole lot as this patent relates to the laying of QDs between two polymer films (I imagine there are other ways to do this), we have won.
More on this; the ‘068 patent always refers to combining two polymers, but at the same time Nanoco are clear the use of a material called lauryl methacrylate (LMA). That's what the invention is all about – the use of LMA in this process. The problem is that LMA is undisputedly a monomer. It is made into a polymer, so the plaintiff tried to get a construction that "polymer" just meant something that could be made into a polymer, and the court didn't accept it. LMA itself is a feedstock of a polymer or is polymerizable. I.e. it would be like considering that if you were referring to baking a caramel cake, which involved mixing caramel itself with a cake batter, then the caramel also captures using sugar as an ingredient. In the case of LMA, my understanding is that this is even more naturally considered a compound of a polymer - on its own it is just a bulk chemical and it is synonymous with polymer compounds. We could go back and as
The key technology here is the production of quantum dots in commercial scale, not the laying of dots on polymer films, for which competitors like LG, Hisense, Sony, etc are able to do. We must keep in mind that Nanoco was the first player to be able to produce quantum dots in commercially viable sizes and while many could produce quantum dots in the past, none were able to at Nanoco’s scale. It is the molecular seeding process Nanoco used is really it’s secret sauce.
Consider this a big win and as I say, the company could go back to the PTAB and 'narrow' the language on the '068 patent but it is not hugely important. On to IPR we go - the winds are behind our back with the PTAB becoming less likely to institute IPR these days when their is parallel civil litigation.
Good luck to all - hang tight.
I don't think it is a problem. It is a supply driven issue, they will make both going forward. The premium market is moving towards hybrid QD-OLED technology. Anyhow, there are a couple of interesting bits I picked out that you need to read carefully:
QD-OLED isn’t the only new display technology on Samsung’s horizon. It recently commercialized a new display type called Micro LED, which uses an array of tiny self-emissive LEDs to produce an image. Although Samsung has released the technology in a series of ultra-high end TVs, it’s believed to be years away from being affordable enough for mass-market sets. There are also reports that the company is working on self-emissive quantum-dot TVs.
While falling LCD panel prices were believed to be behind last year’s move, MTN reports that the trend is reversing this year. LCD panels are reportedly growing more expensive, prompting Samsung to explore alternatives.
Demand for consumer electronics has been very robust with people at home and Asia recovering. Have you tried to buy an LCD monitor recently? I had to do it a few months ago - long lead times and the upward price pressure is visible.
This is a very interesting publication in the National Law Review in relation to the discretionary authority used by the PTAB to institute IPR. I think it is highly relevant to our case - you will see that statistically, not only are petitioners being denied at a much higher rate in general since the process started in 2012, IPR is even less likely to be instituted if there is a parallel federal district civil dispute that will address even just some of the claims and that the PTAB should consider the timing of the petition filing date in view of the trial date set for the co-pending litigation. Keep in mind that Judge Gilstrap refused to stay proceedings when the petition was originally filed in November 2020.
My personal view is that the institution of IPR is not likely to be granted which will put Samsung deeper into a corner.
https://www.natlawreview.com/article/restoring-balance-increased-discretionary-authority-ptab-favors-patentees
Who said Samsung doesn't settle!
Samsung Inks Deal On Eve Of Cellphone Tech Patent Trial
By Lauren Berg
Law360 (April 2, 2021, 10:50 PM EDT) -- Samsung Electronics and patent-holding company Ancora Technologies told a Texas federal judge Friday that they have reached a settlement on the eve of an infringement trial over cellphone security technology, but the deal doesn't include LG Electronics.
In a brief motion, Samsung and Acora asked U.S. District Judge Alan Albright to pause their claims and counterclaims in the case that is set to go to trial April 19 to work out the details of dismissing the case.
Details of the settlement were not divulged in the filing and representatives for the parties did not immediately respond to requests for comments Friday evening. The settlement does not cover LG, which is named as a defendant in the case.
Ancora Technologies was formed in 2002 by Miki Mullor, who later worked as a program manager for Microsoft. The company owns a patent that covers cellphone security technology. On his LinkedIn page, Mullor claims that "today, Ancora's seminal patented tech (US Patent [No.] 6,411,941) is in every smart phone."
After Ancora filed suits related to that patent against Apple, Dell Inc. and Hewlett Packard Inc., as well as his former employers at Microsoft, Mullor's company turned its guns on the smartphone makers Samsung and LG in 2019.
Particularly, Ancora alleged that Samsung's Galaxy line of smartphones, among others, had infringed its patent, which was issued by the U.S. Patent and Trademark Office in 2002. In the suit against LG, Ancora claims that the LG Aristo, among other brands, also infringes the patent.
The LG jury trial is scheduled to start in June, according to court records.
You are welcome guys.
I came across this story about a year ago and have been watching it closely since. I highly appreciate the knowledge many of you offered . There is no question it has aided me in getting up to speed.
My view is that if we can get through claim construction with nothing more than a flesh wound in our '068 claim being thrown out (or if we even go back to the PTAB to request a change of the language) we are going to be in really good shape. As a couple of you have pointed out, when we put our preferred construction and the fact pattern in front of a jury, it is very compelling; Samsung are a bunch of thieves, it is plain and simple. The briefs make clear that they are trying to rely on very clever semantics and lexicology to pull the rug under us but it won't happen. Mintz are one of the best - if not the best - IP focused law firms in the country.
Damages are another question which I am still trying to work my head around. I have listened to Michael Edelman's webcasts a couple of times and whilst valuation/quantum model is compelling, there is more to damages than 'they made an additional $X using our technology and we are entitled to $Y of that'. We won't learn a whole lot on this front because all disclosure on quantum (Samsung sales data, etc) will remain confidential but it would be good to try and press the company for more clarity.
Best of luck to you all and looking forward to the months (I don't think it will be years) ahead :)
I think IPR is irrelevant for the current proceedings for a couple of reasons.
The first is that Judge Gilstrap has already denied Samsung's request to stay the proceedings in anticipation of a ruling from the patent office on IPR. In fact we are nearly through discovery and with the Markman out of the way, this is going to be even less likely.
As someone pointed out last week, the entire IPR process is being questioned via the Arthrex US Supreme Court case, for which a ruling is due this summer. I spoke to a patent holder (troll) last week who has been involved in many disputes over the years and he was explaining that anyone who has had a patent invalidated via IPR (and lost a subsequent civil case) will have a right to a new trial. The PTAB does not want to be seen to be overstepping Federal courts and I am sure they will have their eyes on the Markman hearing. If we get the construction we are looking for, I think this is also likely to significantly decrease the changes of IPR being granted. Read more about the Arthrex case here: https://www.jdsupra.com/legalnews/what-does-the-future-hold-for-iprs-5972153/
IPR may be more relevant if Samsung is granted the right to appeal and adverse judgement later this year. That is probably what they are angling at - they know they will lose but if their is IPR overhang on a judgement, they may use it as leverage to try to get us to settle cheaper and/or at a discount to any judgement.
I am surprised that Brian Tenner mentioned May for the Markman ruling. I would expect that to come in the next week or so as there were only 5 terms in dispute. I would expect us to come out with favourable constructions in relation to the 'Quantum Dot Production Patents' but Samsung may have us on the term 'Polymer' in the '068 patent. It is very important to note that if we lost on the latter, it is near irrelevant because this patent relates to the laying of quantum dots on film, for which I am sure there are many commercially viable ways to achieve this.
Our secret sauce is the production of quantum dots in scale, so if we get our desired construction on the four key patents and respective claims, I think we are smooth cruising.
I will come back with more feedback on this when I manage to see Judge Payne's preliminary construction - I would assume this will be made pubic in the coming days , otherwise we may need to wait for the Markman decision itself.
The judge already ruled against Samsung’s request to stay the proceedings in order to wait for the outcome of the ‘inter partes’ review by the US patent office. I do not believe Samsung has tried to appeal this ruling and would expect that the trial will undoubtedly take place in October 2021, barring any further delays due to COVID etc.
What is more likely is that Samsung would try to appeal a ruling by the lower court in Texas, who would likely have more sympathy for the status of the inter partes review, especially as it progresses whilst the trial goes on and a judgement is handed down.