Arguments were concluded in the TenXC patent litigation last Friday. We now eagerly await the decision. As discussed in our previous posts, here and here, the arguments from both sides went predictably-the plaintiff arguing patent was valid and infringed and defendants that the patent was invalid. Of course, this is the general case in patent litigation.
The defendants argued that all they had to show was a credible challenge to the patent, and because there was no presumption of validity of a patent under Indian law, they had to overcome a very low threshold by showing a credible (non-frivolous challenge). This challenge was shown by referring to the (rather cryptic office action) at the Indian patent office and the proceedings at the USPTO and at the EPO. Both the US and EP patent offices have rejected the similar claims in at one office action. Between our last post and present, the US patent office has issued a final rejection to the application. After the final rejection, there was an interview with the applicant/representative where the Examiner formally stated that more search was required in view of the new art. The defendants also cited additional art, that in their opinion, disclosed the novel features of the plaintiff's patent. Other arguments included the recent grant of the patent, the process of grant at the Indian patent office, and the role of the PCT application/examination.
The plaintiff, on the other hand, discussed that the first US action included a 102 and a 103 rejection, and the 102 rejection was withdrawn in the final office action. TenXC argued that the patent was granted in Canada, India and Indonesia. Additionally, TenXC argued that the application had undergone extensive examination at the PCT stage and at the national patent offices in India and Canada. It was argued that because the application had undergone multiple examinations at different levels (2 at PCT including a negative written opinion, and a later positive IPRP) and at different patent offices, the patent was valid. With respect to the newly cited art, it was argued that it was not relevant.
As a side note, the cited art (in the currently proceeding before the DHC) was disclosed in a recently filed information disclosure statement (IDS) to the USPTO and the decision whether the art was relevant or not left on the Examiner. We will carry a separate post to update about the judgment when delivered.