Monday, June 17, 2013

Anonymous reexamination requests filed against two more patents Apple is suing Samsung over

Scott Daniels and Cindy Chen report on the WHDA US PTO Litigation Alert blog that anonymous ex parte reexamination requests have just been filed with the USPTO against two Apple patents:

These two patents are among the eight patents Apple asserted in its second California complaint against Samsung, filed in February 2012 and scheduled to go to trial in 2014. The '172 patent was also asserted in the related preliminary injunction motion against the Galaxy Nexus smartphone. In her June 2012 ruling on that motion, Judge Lucy Koh found that "Apple has shown that it is likely to succeed on the merits at trial in its claims that the Samsung Galaxy Nexus infringes claims 18, 19, and 27 of the '172 [autocorrect] Patent".

Apart from Google, whose Android operating system faces a variety of patent assertions, the most likely company to be behind these new requests is Samsung. It's unlikely that these requests will help Samsung at the relevant California trial (unless that one is postponed). Samsung is unlikely to be able to point to anything more than a first Office action at trial time. First Office actions don't impress judges and juries are usually not told about them because they mean too little. Any definitive invalidation of these patents, should it ultimately happen, is years off.

Just last week it became known that the USPTO is going to issue a reexamination certificate confirming four of the 20 claims of the "rubber-banding" (or "overscroll bounce") patent, including the one a California jury found Samsung to infringe. Should Samsung have brought that reexamination request, then it clearly backfired, resulting in further strengthening -- not invalidation -- of the claim that matters to Samsung. Another patent that was at issue in last year's trial, the '915 pinch-to-zoom API patent, is also undergoing reexamination (a first Office action tentatively rejected all claims). A couple of patents from Apple's ITC complaint against Samsung (a final ruling, due on August 1, is likely going to result in a U.S. import ban) are also under reexamination pressure. The "Steve Jobs" touchscreen heuristics '949 patent has been tentatively rejected (also just a first Office action), and so have the key claims of the translucent images RE'922 patent. Two weeks ago the WHDA US PTO Litigation Alert blog also discovered two reexamination requests against iPhone design patents. One of them was found infringed at last year's California trial. The other one is at issue in the aforementioned ITC investigation.

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