International Criminal Court Lacks Authority to Proceed Against Israel

SAMUEL ESTREICHER, GEORGE BOGDEN

NYU law professor Samuel Estreicher and JD candidate George Bogden, PhD, comment on a recent filing by the Prosecutor of the International Criminal Court (ICC) asking the court to exercise jurisdiction and grant permission to pursue an investigation of alleged war crimes in the West Bank and the Gaza Strip. Estreicher and Bogden argue that because Israel is not a state party to the action and Palestine is not a state recognized by international law, the ICC lacks territorial jurisdiction under the Rome Statute.

Read More

Communications Test Design, Inc. v. Contec, LLC

Docket: 19-1672

Opinion Date: March 13, 2020

Judge: O'Malley

Areas of Law: Civil Procedure, Intellectual Property, Patents

CTDI is a worldwide engineering, repair, and logistics company with its principal place of business in Pennsylvania. Since 2007, CTDI has developed, manufactured, and used its “Gen3” and “Gen5” test systems within the U.S. for testing set-top boxes and multimedia devices. The test systems were designed and developed at CTDI’s Pennsylvania facility. Contec “provides repair, test and reverse logistics for electronics hardware used in a broad range of markets.” Contec owns patents for the “Arrangement and Method for Managing Testing and Repair of Set-Top Boxes” and for a “Multimedia Device Test System.” The patented systems were designed and developed at Contec’s New York headquarters. Three of the six inventors of the patents reside in New York; another left Contec and works in CTDI’s, New York facility. CTDI sought a declaratory judgment in a Pennsylvania federal court that its test systems do not infringe Contec’s patents. Six days later, Contec sued CTDI for infringement in the Northern District of New York. The Pennsylvania court dismissed, finding that CTDI’s anticipatory filing was made in bad faith during active licensing discussions; the court found that equitable considerations warranted departure from the first-to-file rule. The Federal Circuit affirmed, finding that the district court did not abuse its broad discretion under the Declaratory Judgment Act, 28 U.S.C. 2201(a) and pursuant to the first-to-file rule.

Kaken Pharmaceutical Co., Ltd. v. Iancu

Docket: 18-2232

Opinion Date: March 13, 2020

Judge: Richard Gary Taranto

Areas of Law: Drugs & Biotech, Intellectual Property, Patents

Kaken’s patent, titled “Method For Treating Onychomycosis,” describes and claims methods for topically treating fungal infections in human nails. On inter partes review under 35 U.S.C. 311–319, the Patent Trial and Appeal Board determined that all claims of the patent are unpatentable for obviousness. The Federal Circuit vacated. The Board erred in its claim construction of one claim limitation--“treating a subject having onychomycosis.” Kaken’s unambiguous statement that onychomycosis affects the nail plate, and the examiner’s concomitant action based on this statement, make clear that “treating onychomycosis” requires penetrating the nail plate to treat an infection inside the nail plate or in the nail bed under it. The Board’s obviousness analysis materially relied on its erroneous claim construction.

Personalized Media Communications, LLC v. Apple Inc.

Docket: 18-1936

Opinion Date: March 13, 2020

Judge: Stoll

Areas of Law: Intellectual Property, Patents

PMC’s patent is directed to methods for enhancing broadcast communications with user-specific data by embedding digital signals in those broadcast communications. The specification discloses a number of embodiments that include analog broadcast signals with embedded digital signals. On inter partes review, the Patent Trial and Appeal Board found certain claims unpatentable on anticipation and obviousness grounds. The Federal Circuit reversed as to certain claims and otherwise affirmed. The Board erred in construing the claim term “an encrypted digital information transmission including encrypted information” as including mixed digital and analog signals. The prosecution history indicates that the disputed claim term is limited to all-digital signals.