Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

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Cheetah Omni LLC v. AT&T Services, Inc.

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1264

Opinion Date: February 6, 2020

Judge: Alan David Lourie

Areas of Law: Contracts, Intellectual Property, Patents

Cheetah’s 836 patent is directed to optical communication networks. AT&T uses hardware and software components in its fiber-optic communication networks. Cheetah asserted that AT&T infringes the 836 patent by making, using, offering for sale, selling, or importing its fiber equipment and services. Ciena was allowed to intervene in the suit because it manufactures and supplies components for AT&T’s fiber-optic systems; those components formed the basis of some of Cheetah’s infringement allegations. Ciena and AT&T then moved for summary judgment that Cheetah’s infringement claim was barred by agreements settling previous litigation. Cheetah had sued Ciena and Fujitsu and executed two license agreements—one with Ciena and one with Fujitsu. Ciena and AT&T argued that the licenses included implicit licenses to the 836 patent covering all of the accused products. The district court dismissed the suit. The Federal Circuit affirmed, rejecting Cheetah’s argument that the parties did not intend that the licenses extend to the 836 patent. The court noted the presumption that a license to a patent includes a license to its continuation. The naming of certain patents expressly does not evince a clear mutual intent to exclude other patents falling within the general definitions in an agreement. That is especially true here where the licenses list broad categories of patents without reciting their numbers individually.

HVLPO2, LLC v. Oxygen Frog, LLC

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1649

Opinion Date: February 5, 2020

Judge: Kimberly Ann Moore

Areas of Law: Intellectual Property, Patents

HVO’s 941 and 488 patents share a specification and are directed to methods and devices for controlling an oxygen generating system, which is used to sustain and manage airflow for torch glass artists who use surface mix glass torches. HVO sued Oxygen Frog for infringement. A jury concluded that claims 1 and 7 of both patents, the only claims tried, would have been obvious under 35 U.S.C. 103. The Federal Circuit reversed. The district court abused its discretion by admitting lay witness testimony regarding obviousness. That testimony, which was directed to the conclusion of obviousness and its underlying technical questions, is the province of qualified experts, not lay witnesses. Admission of that testimony substantially prejudiced the outcome of the case.

Samsung Electronics America, Inc. v. Prisua Engineering Corp.

Court: US Court of Appeals for the Federal Circuit

Docket: 19-1169

Opinion Date: February 4, 2020

Judge: William Curtis Bryson

Areas of Law: Intellectual Property, Patents

Prisua’s patent, entitled “Video Enabled Digital Devices for Embedding User Data in Interactive Applications,” is directed to “generating an edited video data stream from an original video stream” by “substituting at least one object . . . in said original video stream by at least a different object.” The claims at issue are directed to methods and apparatuses for “generating a displayable edited video data stream from an original video data stream.” The Patent Trial and Appeal Board instituted inter partes review (IPR) and held that claim 11 was unpatentable for obviousness but declined to analyze whether other challenged claims were unpatentable as anticipated or obvious, finding those claims indefinite. The Federal Circuit affirmed in part. The IPR statute does not authorize the Board to cancel challenged claims for indefiniteness. The scope of IPR is found in section 311(b), Chapter 31 of Title 35. The scope of post-grant review is in section 321(b), Chapter 32. The use of the word “patentability” in the final written decision provision of each chapter refers to the previously defined scope of the particular review in question. Patentability under section 318(a) refers to the limited grounds of unpatentability described in section 311(b); patentability under section 328(a) refers to the broader grounds of unpatentability described in section 321(b). Reversing in part, the court rejected the Board’s conclusion that the term “digital processing unit” invoked means-plus-function claiming, and that for that reason the remaining claims could not be analyzed for anticipation or obviousness.