S.F. federal Judge William Schwarzer made history in 2007, becoming the first judge to change course and dismiss a patent case following the landmark Supreme Court ruling in KSR v Teleflex. KSR gave trial judges the power to invalidate patents for being obvious and Schwarzer did just that, tossing out Friskit’s patents and its infringement suit against Real Networks in the summer of 2007.
Today the Federal Circuit put the stamp of approval on Schwarzer’s ruling in a 14-page non-published opinion (.pdf). The appeals court agreed with Schwarzer that the failed S.F. startup Friskit’s patents on what amounts to a system for making a playlist of songs on media player are entirely bunk.
More bunk, in the trunk:
Opined the judges of the Federal Circuit: “Friskit may have predicted a business trend that would have proved profitable had its commercial embodiments remained competitive in the marketplace. That, however, is not a sufficient basis to overcome strong prima facie showing of obviousness that was made in this case.” Ouch.
Charlie Verhoeven, the Quinn Emanuel partner who argued the case for Seattle’s Real Networks in the trial court and at the Federal Circuit, was pleased with the opinion.
“We’re happy to be on the cutting edge of this,” he told Legal Pad, “helping to keep defendants from being held up with patents that never should’ve been issued.”
Friskit was represented by Robins, Kaplan, Miller & Ciresi.
The opinion probably won’t do much to encourage trial judges to further follow KSR; they’ve already been doing a good job of that. Stanford IP professor Mark Lemley found — with the help of his fancy new patent litigation database – that summary judgment orders holding at least one claim obvious have spiked in district court from 5 a year to 13 a year following KSR.
— Zusha Elinson