Welcome to Skilled in the Art. I’m Law.com IP reporter Scott Graham. Today I’m asking a simple question: Do we really want another round of monkey selfie litigation when all three parties (four, if you count Naruto, the crested macaque) don’t? I can also report that there will still be Section 101 summary judgments in Chief Judge Leonard Stark’s Delaware courtroom, at least on the most egregious patents. As always you can email me your thoughts and feedback, and follow me on Twitter.


Monkey Say No New En Banc Ruling, Please

The monkey selfie case has probably set a record for news coverage of legal standing under the Copyright Act. Now Naruto v. Slater seems to be setting a new record for the least enthusiastic en banc review briefs ever.

You may recall a Ninth Circuit judge sua sponte called for an en banc vote a few weeks ago, and requested briefs not to exceed 7,000 words.

It took Blurb, publisher of an allegedly infringing book of the selfies, only 627 words to say no, thank you.

En banc review is appropriate to resolve an irreconcilable conflict in the case law, or in cases that affect large numbers of parties, involve substantial resources, implicate fundamental constitutional rights, or pose issues likely to recur. “None of those things are true of this monkey copyright case,” wrote Blurb’s attorneyCooley partner Angela Dunning.

The three-judge panel that decided the case believes a 2004 Ninth Circuit decision, Cetacean community v. Bushwrongly held that animals can satisfy Article III’s standing requirement with humans acting as “next friends.” But that ruling also held animals have statutory standing only when Congress has explicitly granted it, such as in the Endangered Species Act. That “effectively quells any risk that other animals will begin stampeding courts in this circuit any time soon,” Dunning wrote.

Berkeley solo practitioner Andrew Dhuey spilled only slightly more ink on behalf of nature photographer David Slater, who set up the camera used to take the now-famous selfies. Dhuey’s 1,400-word brief does ask the court to take the case en banc, but—cue the sad trombone—only to affirm the panel’s decision. “The Cetacean panel,” he writes, “properly reserved for the political branches the answer to the important question of animal standing in federal court, rather than allowing the judiciary to have the first and last words on the matter.”

People for the Ethical Treatment of Animals and its counsel at Irell & Manella had the most to say, 5,000 words. But it’s still not what the Ninth Circuit panel wants to hear. Irell partner David Schwarz emphasizes that the parties settled the case nearly a year ago—along the lines suggested at argument by Judge Carlos Bea. “Under Circuit precedent, courts should refrain from adjudicating abstract questions of law that no party is currently pursuing,” Schwarz writes.

And on the merits, PETA and Slater have once again found common ground. “It would be a mistake to hold that Article III forever deprives Congress of the ability to empower non-human animals to bring suit in the United States,” Schwarz writes.

I don’t think the Ninth Circuit is going to take this case en banc. If it does, maybe it can appoint a next friend to represent the judges’ interests.

Chief Judge Stark Brushes Back Berkheimer

The chief judge of the busiest patent court in the country made it clear this week that he’s still going to grant at least some Section 101 motions at the summary judgment stage. Chief Judge Leonard Stark of Delaware recalled patent claims against Amazon Cloud Services that he’d thrown out last year, so he could reconsider them under the Federal Circuit’s new Berkheimer framework.

He threw them out again. “Although plaintiff tries to rely on expert testimony, here this is insufficient to create a genuine issue of material fact,” Stark wrote in Kaavo v. Amazon.com.

Kaavo is a software company that holds a patent that fairly bleeds ineligibility. The title is “Cloud computing lifecycle management for N-tier applications.” According to Stark, the patent is directed to the abstract idea of setting up and managing a cloud computing environment. Neither the claim language nor the specification discloses specific improved methods or systems of cloud computing, he added.

Kaavo argued that various dependent claims contained limitations that preserved their eligibility. For example, claim 11 describes “receiving security information; determining a requested security action based on the security information; and sending a security event based on the requested security action.”

“However, there are no details on how the security information is received, how a security action is determined, or how a security event is sent,” Stark wrote.

This is all pretty much Section 101, 101. The difference now is Berkheimer, Aatrixand other recent Federal Circuit opinions hold that in some cases, whether the claims describe routine, conventional, well-understood technology may raise questions of fact that can’t be resolved without a trial.

That’s the argument Kaavo made here on both the independent claims—rejected in Stark’s previous order and re-rejected—and the dependent claims, adjudicated Monday for the first time. Kaavo presented expert testimony that it said explains how the claims overcome the challenges of running an application in a cloud environment in an inventive manner.

First, Stark ruled Berkheimer and the other recent Federal Circuit opinions didn’t change the law. “Instead, these cases provide further guidance on applying the Supreme Court’s two-step Section 101 analysis to different factual scenarios,” he wrote.

And the expert testimony was not enough to create a triable issue. “Taking the evidence (including the expert opinions) in the light most favorable to plaintiff, a reasonable factfinder could only conclude, by clear and convincing evidence, that the challenged claims lack an inventive concept,” Stark wrote. “No reasonable factfinder could find that anything plaintiff contends constitutes the ‘inventive concept’ is actually ‘captured by the claims.’”

Fisch Sigler team led by partner Alan Fisch represented Amazon, along with Morris, Nichols, Arsht & TunnellKaavo was represented by Stamoulis & Weinblatt and the Law Offices of James T. Bailey.

Raytheon Locks Onto Patent 10,000,000

Defense contractor Raytheon has been awarded U.S. Patent No. 10,000,000, my colleague Dan Clark reports at Corporate Counsel. The patent is titled “Coherent LADAR Using Intra-Pixel Quadrature Detection.”

As Dan points out, that’s a far cry technologically from Patent No. 1, issued in 1790 on a process for making fertilizer.

Tanuja Garde, VP for IP at Raytheon, told Dan the invention has potential uses on the defense side for detecting targets, and on the commercial side with autonomous vehicles.

Raytheon optical engineer Joe Marron is the named inventor on U.S. Patent 10,000,000. William MunckDavid Doyle and Dan Venglarik of Munck Wilson Mandala prepared and prosecuted the patent.

Paul Hastings Makes IP Presence Felt Across the Pond

Congratulations Paul Hastings for being named Transatlantic IP Team of the Yearby Legal Week, American Lawyer and Corporate Counsel. Paul Hastings won the award by helping Boehringer Ingelheim win patent litigation against five generic drug makers aiming at its billion-dollar-a-year stroke preventive Pradaxa.

Paul Hastings partners Bruce Wexler, Eric Dittmann and Isaac Ashkenazi were among those litigating the case, along with Saul Ewing partner Charles Lizza.

A full list of the 2018 Transatlantic Legal Awards winners can be found here.

That’s all from Skilled in the Art for today. I’ll see you all again on Friday.