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TenXC patent litigation-arguments concluded


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on the other hand,  discussed that the first US action included a 102 and a 103 rejection, and the 102 rejection was withdrawn in the final office action.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.
Rajiv Kr. Choudhry

Rajiv Kr. Choudhry

Rajiv did his engineering from Nagpur University in 2000 in electronics design technology. He has completed his LL.B. from Delhi University, Law Center II in 2006, while working as an engineer at ST Microelectronics in NOIDA. After his LL.B., he went on to The George Washington Univeristy, Washington DC to do his LL.M. in 2007. After his LL.M., he has worked in the US at a prestigious IP law firm based out of Philadelphia. Till 2014, he was Of-Counsel to a Noida based IP law firm where he specialized in advising clients on wireless, telecommunication, and high technology. Rajiv is a co-founder of RHA Legal, a New Delhi based law firm specializing in IP law, with a focus on high - technology, and patent law. His core IP interest areas are the intersection of technology and IP, Indian IP policy, innovation, and telecommunications patents. He is also an inventor with pending applications in machine-to-machine communications domain (WO2015029061).

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