Quite some time back, the USITC found that Apple’s Watch had infringed a set of ECG patents. During the pendency of the ITCInternational Trade Commission case, Apple filed a set of inter partes review petitions alleging invalidity of the AliveCor patents-in-suit. The ITCInternational Trade Commission ultimately found that the Watch infringed valid patents and issued an exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent.. However, due to the pending IPRIntellectual Property Rights. Usually associated with formal legal rights such as patent, trademark, and copyright. Intellectual property is a broader term that encompasses knowledge, information, and data considered proprietary whether or not it is formally protected. decisions (and as CCIA suggested in our public interest comments in the case), the Commission also held their exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. in abeyance until the completion of that process, recognizing the possibility that they were in error and that the underlying patent claims would ultimately be canceled.
In a precedential decision today, the Federal CircuitSee CAFC found that the PTABPatent Trial and Appeal Board. Reviews adverse decisions of examiners on written appeals of applicants and appeals of reexaminations, and conducts inter partes reviews and post-grant reviews. The Board also continues to decide patent interferences, as it was known as the Board of Patent Appeals and Interferences (BPAI) before the AIA. was correct—AliveCor’s patent claims were not valid. And in a paired decision, it mooted the appeal of the ITCInternational Trade Commission decision, holding that with the relevant claims invalidated, there was no basis for an exclusion orderAn order issued by the U.S. ITC as a result of a 337 action, excluding from entry into the United States goods found to infringe a U.S. patent. to exist.
I frequently criticize the ITCInternational Trade Commission, including in an amicus filed in the companion case here, and I certainly still have concerns regarding this case—the cost of an ITCInternational Trade Commission dispute that never needed to happen, for one, and the fact that the ITCInternational Trade Commission found AliveCor’s patent claims valid when the experts at the USPTOUnited States Patent and Trademark Office. See also PTO. had already indicated they were reasonably likely to be at least partially invalid. But credit where credit is due. The ITC’s decision to suspend enforcement until the final determination of the IPRs was the correct one, permitting the legal process to play out when there was no issue of irreparable harm.
Of course, if proponents of the RESTORE Act get their way, we’ll soon have district courts obligated to issue injunctions regardless of irreparable harm. The ITC’s reasonable and cautious action here is exactly what proponents of RESTORE wish to prevent—removing the discretion of judges to recognize when injunctive relief is inappropriate.
So who would RESTORE benefit? As I noted in my testimony to the Senate Judiciary Committee’s IP subcommittee last year, it’s certainly not innovators like Apple. It’s not even innovative companies like AliveCor, who make competing products and can obtain injunctions in district court cases under existing caselaw. So who really benefits from RESTORE? Patent trolls—and the lawyers and private equity finance companies that benefit from investing in and representing them.
