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  Readers may recall that non-practicing entity Personal Audio sued CBS (among many others) in 2013 over a podcasting patent. Personal Audio had filed the case in the Eastern District of Texas and the case there is still pending (see our prior post on the CBS case here). That case and most of the other cases Personal Audio had filed were based on Personal Audio’s U.S. Patent 8,112,504).

    The case didn’t end in September 2014 even though the jury found that CBS had infringed the ‘504 patent (see jury verdict form here). That’s because CBS had filed a

This is the end, my friend, the end; Of our elaborate plans, the end…” (from the Doors’ song The End). Will we see the end of Personal Audio bandying about the ‘504 patent?

motion for judgment as a matter of law (under Fed. Rule of Civ. Procedure 50(b)) that the ‘504 patent is invalid under Section 101 of the Patent Act (35 U.S.C. 101; under Section 101, laws of nature and abstract ideas themselves are not eligible subject matter).

CBS later (in March 2015) renewed its motion for a judgment as a matter of law, this time claiming that the ‘504 patent is invalid under Sections 102 and 103 of the Patent Act (i.e., that the ‘504 patent is obvious and anticipated by prior art).

Then in April,  the Patent Trial and Appeal Board (“PTAB”) granted Electronic Frontier Foundation’s (“EFF”) petition for inter partes review of the ‘504 patent and found that claims 31-35 are invalid as being anticipated and obvious in light of the prior art that EFF had submitted (see our prior posts on EFF’s inter partes review here and here and Gigacom‘s really interesting article on the CBS case here).

It just so happens that claims 31-35 are all of the claims that Personal Audio asserted against CBS.  And now, the PTAB has determined that claims 31-35 of the ‘504 patent are invalid. No surprise that Personal Audio plans to appeal the Board’s decision. On April 29th, CBS and Personal Audio filed a joint motion in the district court case pending at the Eastern District of Texas to stay the case until after the appeal. The district court granted the motion on April 30th, 2015.

We didn’t see any sign of Personal Audio’s appeal at the Court of Appeals for the Federal Circuit yet, but it’s sure to show up soon. While it’s just conjecture on our part, Personal Audio may also be planning on filing a motion for reconsideration with the Patent Trial and Appeal Board. Personal Audio might be hoping that it can somehow reverse the Board’s decision that claims 31-35 of the ‘504 patent are invalid. This might explain why Personal Audio filed a copy of the district court’s trial transcript with the PTAB this past Monday (May 11, 2015).

Will the Federal Circuit affirm the PTAB’s decision finding claims 31-35 of the ‘504 patent invalid?  What do you think?

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