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**VERDICT FORM VIOLATED DEFENDANT’S RIGHT TO A UNANIMOUS JURY
Optis Cellular Tech., LLC v. Apple Inc., 22-1904, 22-1925 — Yesterday in an opinion by Judge PROST, the Federal Circuit vacated a jury verdict that Apple infringed five Optis patents for technology essential to the Long-Term Evolution (LTE) standard. Apple argued the verdict form provided to jurors violated Apple’s right to a unanimous jury by improperly combining all asserted patents into a single question of infringement.
The Federal Circuit agreed. The verdict form asked if Optis had proved Apple infringed any of the asserted claims without distinguishing between the causes of action or the five patents. This gave rise to a situation in which jurors could all answer yes without agreeing that the same patents had been infringed. A verdict form must, at the very least, include separate infringement questions for each asserted patent.
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**USPTO APPLIED OVERLY STRICT STANDARD TO DETERMINE NEXUS TO LICENSES SUBMITTED AS OBJECTIVE INDICIA
Ancora Techs., Inc. v. Roku, Inc., 2023-1674, 2023-1701– Yesterday in a per curiam opinion, the Federal Circuit vacated two USPTO inter partes review decisions finding Ancora’s patent for a method of preventing unauthorized copying of computer software would have been obvious. Ancora argued the USPTO erroneously determined that Ancora failed to show a sufficient nexus between the claimed invention and two licenses submitted as objective indicia of nonobviousness.
The Federal Circuit agreed. The licenses involved the same patent, were entered into towards the end of litigation involving the same claims and prior art, and had payments “far exceed[ing] the cost of litigation.” The USPTO applied “too strict a requirement” in determining that although Ancora’s patent was identified in the license agreement, there was no nexus because the redacted information made it “impossible . . . to discern what was licensed and on what terms precisely.” The license fees did not merely represent a “business decision” as determined by the USPTO, but were “a considered reluctance to run the risk of larger financial consequences from infringement” that “should be given the significance that their magnitude deserves.”
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USPTO NOW HIRING PATENT EXAMINERS AND TRADEMARK EXAMINING ATTORNEYS
The USPTO has posted patent examiner and trademark examining attorney positions on USAJOBS.gov, ending a hiring freeze that began in January. The new hires will not be eligible for telework or bargaining unit membership. The listings for entry level patent examiner positions indicate that “[a]pplications will be reviewed after the following cut-off dates: June 23, 2025, July 07, 2025, September 1, 2025, October 13, 2025, November 24, 2025, January 6, 2026, February 3, 2026, March 31, 2026, May 11, 2026, and final closing date of June 12, 2026.” Trademark examining attorneys are expected to start in fall 2025.