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Federal Circuit: Faulty Claim Construction Does Not End Patentability Determination
Fitbit, Inc. v. Valencell, Inc. No. 2019-1048, 2020 U.S. App. LEXIS 21131 (Fed. Cir. Jul. 17, 2020)
The Federal Circuit has had an early opportunity to apply the Supreme Court's ruling in Thryv, Inc. v. Click-To-Call Techs., LP, 140 S. Ct. 1367 (2020). In Fitbit, Inc. v. Valencell, Inc., both Apple, Inc. and Fitbit, Inc. petitioned the Patent Trial and Appeal Board (PTAB or Board) for inter partes review (IPR) of U.S. Patent No. 8,923,941 (the '941 patent) owned by Valencell, Inc. First, Apple petitioned for review of claims 1-13. Separately, Fitbit petitioned for review of claims 1, 2 and 6-13 and also moved (successfully) for joinder with Apple's IPR. The Board instituted review of claims 1, 2, and 6-13, and denied reviewing claims 3-5.
After the PTAB trial, but before the Final Written Decision, the Supreme Court decided SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348 (2018), which held that the decision to institute was an all-or-nothing approach, that is once the Board determines that a petitioner is likely to succeed on at least one claim, all challenged claims must come under review. As a result of considering SAS, the Board re-instituted review of claims 3-5. In the Final Written Decision, the Board found claims 1, 2, and 6-13 unpatentable, and claims 3-5 not unpatentable. Apple, which had initially petitioned for review of claims 3-5, subsequently withdrew from the case, while Fitbit appealed.
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