By Miriam Swedlow
Apple Inc. recently filed a writ of certiorari with the Supreme Court requesting that the Court review the Federal Circuit’s ruling in Ancora Tech., Inc. v. Apple, Inc. in light of recent and pending decisions from the high court. The case underscores the need for clarification of the standard of review for patent construction in light of complex technology.
Apple’s petition, filed on October 20, presents the following issues: (1) Whether review of Ancora should wait until after the Court’s ruling in Teva Pharm. USA, Inc. v. Sandoz, Inc., which will determine whether review of patent claim construction should be done de novo, because the Federal Circuit applied de novo review in rejecting the district court’s claim construction of a key term in the case; and (2) Whether the Court should grant, vacate, and remand Ancora for reconsideration after the Court’s June 2, 2014 rejection of the Federal Circuit’s patent indefiniteness standard in Nautilus, Inc. v. Biosig Instruments, Inc.
Ancora holds a patent on an anti-piracy process that checks software and determines whether it is operating within the scope of a license. Unlicensed software is prevented from operating. Ancora filed suit against Apple, alleging that Apple’s iOS mobile operating system infringes on this patent. A key issue in the case is the scope of the term “program” within the patent claim. The district court held that the claim construction of the term “program” described “a set of instructions for software application that can be executed by a computer.” Applying this definition, the district court dismissed the claim on summary judgment. Ancora appealed and the Federal Circuit applied de novo review of the claim construction. It rejected the district court’s construction of “program” as limited to application programs and ruled that Apple’s iOS program violates Ancora’s anti-piracy patent.
Apple joins six other petitions asking the Supreme Court to decide the standard of review for patent claim construction. Currently the Federal Circuit applies a no-deference, de novo approach in contrast to the clear error standard set forth in rule 52(a) of the Federal Rules of Civil Procedure. Arguments in the first of these cases, Teva Pharm., were heard on October 15 and indicate a divided Court. A ruling striking down de novo review will directly impact the Federal Circuit’s ruling in Ancora.
Apple contends that regardless of the Teva ruling, the Ancora case should be vacated and remanded in response to the Court’s ruling in Nautilus. Apple argued, as an affirmative defense, that the patent’s use of the terms “volatile memory” and “non-volatile memory” was indefinite and therefore rendered the patent invalid under 35 U.S.C. §112(b). The district court rejected this defense and the Federal Circuit affirmed on appeal. Apple argues that the ruling needs to be reconsidered in light of Nautilus, which criticized the Federal Circuit’s approach, “which tolerates some ambiguous claims but not others,” and placed emphasis on the statute’s definiteness requirement.
Apple hopes to have the writ of certiorari held pending the ruling in Teva, which is expected by the end of the Court’s 2014-15 term. A response to Apple’s petition is due on November 21.
Washington Journal of Law, Technology & Arts 