March 2015—like January and February—saw decisions on a variety of fronts from ND Cal judges. ND Cal judges demonstrated their willingness to apply the Supreme Court's decisions in Nautilus and Alice to invalidate patents on summary judgment. Nautilus held claims invalid if they "failed to inform, with reasonable certainty, those skilled in the art...." Judge Alsup applied that reasoning in Aquatic AV, Inc. v. Magnadyne Corp. et al., Case No. C 14-01931, where he found Aquatic's asserted claims invalid, in part, because the its definition of "hermetically seals" lacked sufficient fixed meeting: "taking our patentee at its word that 'hermetically seals' has no fixed meaning." Judge Freeman applied Alice in Hewlett Packard Co. v. ServiceNow, Inc., Case No. 14-cv-00570-BLF to invalidate asserted claims in four of the eight software patents. As we anticipated in 2014, after Alice, plaintiffs should expect earlier and more frequent attacks on the validity of their software patents. March 2015 also saw the application of Patent Local Rules as Judge Koh, in Takeda Pharmaceutical Co. LTD et al. v. TWi Pharmaceuticals, Inc., Case No. 13-cv-02420-LHK, granted plaintiff Takeda's motion to strike portions of TWi's expert reports for introducing new invalidity theories—reasserting the readily apparent lesson that non-compliance or partial compliance with the Patent Local Rules can result in harsh penalties.
Decisions, however, were not just limited to patent claims. Notably, the Northern District became the first district court to interpret the Biological Price Competition Act ("BPCIA") with Judge Seeborg's decision in Amgen, Inc. et al. v. Sandoz, Inc. et al., Case No. 14-cv-04741RS. Enacted as part of the Affordable Care Act, the BPCIA provides an abbreviated FDA licensing application pathway for producers of "biosimilars," biologic products that have been shown to be substantially similar to a product that has already been on the market for at least twelve years. It also contains provisions intended to obviate or narrow patent litigation involving "biosimilars." The BCIPA didn't dissuade Amgen from suing Sandoz for alleged patent infringement, among other claims, arising out of Sandoz's biosimilar, filgrastim. Also, Judge Labson took a restrictive view of the Computer Fraud and Abuse Act (CFAA)—applying the Ninth Circuit's decision in U.S. v. Nosal—to dismiss Phillips' CFAA claims against Elec-Tech and its subsidiaries for alleged theft of trade secrets. As "March showers bring April flowers," we anticipate a continued blossoming of decisions from ND Cal judges in the coming month.
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