Patent suits can be like the War of the Roses, or Bleak House. Though most patent suits end pretty quickly, high value cases often pend for a long time. Our firm represents a patent owner in one such suit.

Bleak House cover

In November 2013, our client Applications in Internet Time, LLC sued Salesforce, Inc. for patent infringement. After eleven years of litigation, the suit remains pending. The case still has not gone to trial. It has, however, been through almost everything else: a Covered Business Method (CBM) proceeding, an Inter Partes Review (IPR) proceeding, an ex parte reexam proceeding, summary judgement, a $7M attorney fee award, and three trips to the Court of Appeals for the Federal Circuit.

A new decision from the Federal Circuit, arising from the third trip to the Federal Circuit, will be our topic of discussion. In this non-precedential opinion, the Federal Circuit modified the district court’s claim construction of “automatically detecting,” vacated the district court’s grants of summary judgment of non-infringement and invalidity, and reversed its exceptional case determination. We thought that the district court’s decisions on summary judgement and exception case were bad. The Federal Circuit agreed. Judge Linn’s opinion could be a new record on the number of times that the Federal Circuit stated that a district court erred. As reflected by the non-precedential status of the case, the issues were routine. This contrasts with the first trip to the Federal Circuit, where our firm made new law. At both of the appellate hearings, the Federal Circuit judges showed considerable disdain for our opponent’s arguments and for the decisions of the judges below.

This new win for AIT does not end the suit. To the contrary, it revived it. After appellate proceedings are finished, the case goes back to the district court, and could return again to the Federal Circuit, maybe even multiple times.

Though AIT v Salesforce is unusual, and in my opinion exceptional, it falls into a category of patent suits which few lawyers will handle during their careers but which cast a long shadow across the field. It’s a good war story that shows how policy, law and regulation can change over time. I’ll be discussing details and perspective in our usual Monday meeting of SoCal IP Institute.