Apple’s win last week against Samsung in its long-running patent infringement case shows “a growing consensus on how district courts will instruct juries regarding design patent damages,” blogged patent litigation law firm Fitzpatrick. That followed a jury’s determination in the U.S. District Court for the Northern District of California that Samsung owes Apple $140 million more in the seven-year case. The district court instructed the jury to consider four factors, said Fitzgerald: (1) the scope of the claimed design, including the drawings and written description provided by the design patent; (2) the relative prominence of the design within the infringing product as a whole; (3) whether the design is conceptually distinct from the product as a whole; and (4) the physical relationship between the patented design and the rest of the product, including whether the design pertains to a physically separable, separately sold, or separately manufactured component. Apple was awarded $399 million in 2012 after Samsung was found liable for copying patented Apple smartphone features, but a retrial was allowed due to a disagreement over damages. In December 2016 (see 1612060061) the Supreme Court ruled for Samsung, saying a federal appeals court had to further reduce damages Samsung owed after it lost the 2012 lawsuit. In its appeal, Samsung claimed the Federal Circuit erred in saying it owed damages on the total profit gained from an infringing device instead of the value of the infringing components. Last week’s jury award brings the total to $539 million that Samsung owes Apple for patent infringement. “Today’s decision flies in the face of a unanimous Supreme Court ruling in favor of Samsung on the scope of design patent damages,” said Samsung in a statement. “We will consider all options to obtain an outcome that does not hinder creativity and fair competition for all companies and consumers.” Apple, meanwhile, said: "We believe deeply in the value of design, and our teams work tirelessly to create innovative products that delight our customers. This case has always been about more than money. Apple ignited the smartphone revolution with iPhone and it is a fact that Samsung blatantly copied our design.”

The International Trade Commission launched a Tariff Act Section 337 investigation into allegations from NEC that Xtera and its assembler MC Assembly are importing submarine telecom systems that infringe its patents, the ITC said in a May 18 news release. NEC filed its complaint April 20 (see 1804270051) after instituting a separate Section 337 investigation in January that covers NEC subsea systems (see 1801240011). NEC alleges Xtera’s Nu-Wave Optima, Flexible Gateway Family, Open System Gateway and Virtual Fiber Gateway series of submarine telecom systems infringe its patents. The ITC will consider whether to issue a limited exclusion order and cease and desist orders banning importation and sale of infringing merchandise by Xtera, MC Assembly and MC Test Service. Xtera didn't comment Thursday.

Reps. Steve Chabot, R-Ohio, and Hank Johnson, D-Ga., introduced legislation Tuesday that would maintain Patent and Trademark Office fee-setting authority. In exchange, PTO would implement modern IT systems and big-data analytics. CTA CEO Gary Shapiro urged Congress to protect “critical” PTO programs like inter partes review (IPR) from “special interest attacks” and applauded the bill’s introduction. The bill drew cheers from Software & Information Industry Association Senior Vice President-Public Policy Mark MacCarthy. PTO Director Andrei Iancu told the House Judiciary Committee during a hearing Tuesday that since enactment of the America Invents Act, fee setting authority allowed the agency to operate more efficiently and recoup necessary costs. He suggested the committee work with the PTO to maintain that authority. Chairman Bob Goodlatte, R-Va., said the committee’s efforts to “deter patent trolling” through the America Invents Act “have been a resounding success.” The legislation and the recent court decisions “deprived patent trolls of many of the weapons they use to extort payments from innocent companies,” he said. The High Tech Inventors Alliance urged the committee to uphold the America Invents Act, the IPR process and precedents established by recent patent-related Supreme Court cases. IPR is working as Congress intended by allowing the PTO to fully assess patents and correct mistakes without litigation, HTIA General Counsel John Thorne said: “This vital mechanism along with recent unanimous Supreme Court rulings, such as the Alice decision (see 1804180073), apply to invalid patents that never should have been issued in the first place and are the primary fuel for abuse of the patent system.”

Sound United reached a settlement with Sonos, resolving “all patent infringement litigation between the two companies, including the upcoming case filed against Sonos by Denon,” said the Denon and Heos parent company Friday. It "demonstrates our belief in moving the industry forward and removing barriers for both parties to deliver products that delight customers,” said Sound United CEO Kevin Duffy, who said the company’s direction with the Heos multiroom audio system is unchanged. In December, Heos developer Denon said (see 1712210028) it would challenge a Delaware federal district court ruling that it infringed three Sonos patents. The court awarded Sonos $1.9 million in damages.

The International Trade Commission seeks comment by June 5 on a potential limited exclusion order and cease and desist orders banning import and sale of non-volatile memory devices by Toshiba, the ITC said in Wednesday's Federal Register. The ITC began its underlying investigation in 2017, based on allegations Toshiba is making and importing flash memory devices and products containing them, such as memory cards, solid-state drives, digital camcorders, car navigation systems and other consumer electronics, that infringe patents held by Macronix. An ITC administrative law judge recommended the limited exclusion order and cease and desist orders if the ITC finds violations of Tariffs Act Section 337. Toshiba didn't comment.

Enforcing free, fair and reciprocal trade will protect U.S. jobs and foster innovation, White House Intellectual Property Enforcement Coordinator Vishal Amin said Monday. He met that day with executives from the entertainment, cable/telecom and tech industries during a roundtable on illicit streaming devices. Rep. Darrell Issa, R-Calif., FCC Commissioner Mike O'Rielly and FTC Commissioner Noah Phillips were among attendees. Industry representatives joined from Apple, Netflix, Amazon, the Copyright Alliance, App Association, Disney, 21st Century Fox, NCTA, Viacom and others.

The Department of Commerce is gathering data from U.S. companies on intellectual property transactions, in a mandatory survey. The “BE-120 Benchmark Survey of Transactions in Selected Services and Intellectual Property with Foreign Persons” survey requires all U.S. companies with combined inbound transactions of $1 million or outbound transactions of $2 million for FY 2017 to report type, amount and country involved in the IP transaction. Responses are due June 29-30, depending on format. The department’s Bureau of Economic Analysis is authorized to do the survey through the International Investment and Trade in Services Surveys Act. Companies failing to respond face fines up to $45,000, plus potential criminal penalties. Wiley Rein suggested the survey may “be used to support the goals of the Trump Administration’s ‘America First’ policies,” which emphasized IP protection.

Music labels are trying to revive dismissed copyright infringement claims against ISP Grande Communications and its former management company, Patriot Media Consulting. A docket 17-cv-00365-LY motion (in Pacer) Friday asked U.S. District Judge Lee Yeakel of Austin for leave to file an amended complaint. The labels said the proposed amended complaint includes previously unavailable facts supporting their arguments for vicarious copyright infringement by Grande -- claims previously dismissed but with good cause to allow them to plead again. They said recent discovery turned up evidence that Grande and Patriot Media Consulting had the ability to control infringing subscribers but knowingly refused to. The plaintiff labels -- including Atlantic, Capitol, Elektra, LaFace, Roc-A-Fella, Rhino, Sony and Warner Bros. -- said discovery disproves Patriot assertions on which the magistrate judge based recommendations of dismissal of infringement claims. Grande/Patriot outside counsel didn't comment Monday.

Dual-camera technology company Corephotonics sued Apple Monday for patent infringement of camera technologies in the iPhone 7 Plus, iPhone 8 Plus and iPhone X, in a complaint (in Pacer) in U.S. District Court in San Jose alleging the tech company "continues to infringe” its patents for miniature telephoto lens assemblies. After years discussing possible collaboration, the defendant allegedly went "ahead and marketed its newest generations of iPhones with dual cameras that employ Corephotonics’ innovative designs -- without any regard to Corephotonics’ intellectual property rights,” the complaint said. Apple didn’t respond Tuesday.

The 9th U.S. Circuit Court of Appeals' precedent makes "an absolute mess of the repeat-infringer requirement" of the Digital Millennium Copyright Act that will haunt it and lower courts, adult film distributor Ventura Content said in a docket 13-56332 petition for rehearing en banc (in Pacer) filed Friday. A majority of the 9th Circuit in March upheld a lower court's summary judgment in favor of defendant Motherless, which operates a website for user sharing of pornography and which Ventura sued for copyright infringement, with Judge Johnnie Rawlinson dissenting. Ventura said the majority members of the panel improperly followed Rule 56, covering summary judgment, and Motherless clearly didn't have or follow a legally sufficient repeat-infringer policy because company assertions about having such a policy were repeatedly proven false. Motherless outside counsel didn't comment Monday. Copyright lawyer Sarah Bro of McDermott Will blogged Friday that, per the decision, Motherless didn't forfeit safe harbor protection when it screened and removed illegal content like child pornography or organized content into categories, and the court found Motherless' removal of Ventura content after being sued was expeditious enough to comply with safe harbor requirements.