In contrast, the panel did not even find this testimony worth mentioning in its analysis that no nexus existed between Apple's commercial success evidence and the merits of Apple's '721 patent. Apple Inc. v. Samsung Elecs. Co. , 816 F.3d 788, 806 (Fed. Cir. 2016). We have repeatedly stated that that conclusory testimony does not suffice as substantial evidence, see, e.g. , Whitserve, LLC v. Comput.
However, "[e]vidence of copying of a feature in a patent owner's commercial product is 'not sufficient to demonstrate nonobviousness of the claimed invention' where, as here, there is a 'substantial question of validity raised by the prior art references' cited by the accused infringer." Apple Inc. v. Samsung Elecs. Co., Ltd., 816 F.3d 788, 806 (Fed. Cir. 2016) (quoting Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239 F.3d 1343, 1366 (Fed.Cir.2001)). The court has found that there is a substantial question of validity raised by the prior art references, and so this scant evidence of potential copying is "not sufficient."
The Court of Federal Claims suggested the existence of a categorical rule that objective indicia, no matter how indicative of non-obviousness they are, "cannot overcome a strong showing of obviousness based on combinations of prior art applied according to the prior art's expected function." Am. Innotek, 128 Fed. Cl. at 163 (citing Apple Inc. v. Samsung Elecs. Co., Ltd., 816 F.3d 788, 804 (Fed. Cir. 2016)). That goes too far. "Objective indicia of nonobviousness must be considered in every case where present," Apple Inc. v. Samsung Elecs. Co., Ltd., 839 F.3d 1034, 1048 (Fed. Cir. 2016) (en banc), cert. denied, No. 16-1102, 2017 WL 948834 (U.S. Nov. 6, 2017) (vacating panel decision cited by Court of Federal Claims); and the Supreme Court has warned against transforming "[h]elpful insights" about assessing obviousness into "rigid and mandatory formulas," KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007).
The corresponding structure must include all structure that is necessary and “‘actually performs the recited function.'” Apple Inc. v. Samsung Elecs. Co., Ltd., 816 F.3d 788, 814 (Fed. Cir.) (quoting Cardiac Pacemakers, Inc. v. St. Jude Med., Inc., 296 F.3d 1106, 1119 (Fed. Cir. 2002)), rev'd on other grounds, 839 F.3d 1034 (Fed. Cir. 2016) (en banc).
"The field of endeavor is determined 'by reference to explanations of the invention's subject matter in the patent application, including the embodiments, function, and structure of the claimed invention.'" Apple Inc. v. Samsung Elecs. Co., 816 F.3d 788, 802 (Fed. Cir. 2016) (quoting In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) and citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986) (finding that if a prior art reference discloses essentially the same structure and function as the invention, it is likely in the same field of endeavor))). Multiple of the prior art references, especially Tsukamoto, disclose a similar structure and function as Brekke—multi-component hangers with channel-like portions, designed to hang structural components from walls.
The Court finds that the 52-week Treasury Bill rate is appropriate. The Treasury Bill rate has been accepted and employed by many courts in patent cases as a reasonable method of placing a patent owner in a position equivalent to where it would have been had there been no infringement. Apple, Inc. v. Samsung Elecs. Co., 67 F. Supp. 3d 1100, 1122 (N.D. Cal. 2014), aff'd, 816 F.3d 788 (Fed. Cir. 2016), vacated in part on reh'g en banc, 839 F.3d 1034 (Fed. Cir. 2016), and aff'd, 839 F.3d 1034 (Fed. Cir. 2016); Mars, Inc. v. Coin Acceptors, Inc., 513 F. Supp. 2d 128, 134 (D.N.J. 2007) (citing Hoechst Celanese Corp. v. BP Chemicals Ltd., 846 F.Supp. 542, 550-51 (S.D.Tex.1994) ("[T]he Court is mindful that the purpose of pre-judgment interest is solely to compensate the patentee for the lost use of the royalty income he should have been paid. Accordingly, the Court finds the T-bill rate to the be appropriate standard.") (sic), aff'd, 78 F.3d 1575 (Fed.Cir.1996)).
Given that Defendants did not raise this defense in their pretrial submissions and did not otherwise pursue this defense in the case, the Court considers Defendants' improper inventorship defense abandoned but finds that an entry of judgment on this defense based on an alleged failure of proof is inappropriate. SeeApple, Inc. v. Samsung Elecs. Co. , 67 F.Supp.3d 1100, 1116-17 (N.D. Cal. 2014) (concluding that because the defendant "raised [certain] defenses in its Answer but did not raise them in the pretrial statement nor litigate them at trial," these defenses were "abandoned" but "no judgment may be rendered on these defenses" in favor of the plaintiff), aff'd , 816 F.3d 788 (Fed. Cir. 2016), vacated in part on reh'g en banc , 839 F.3d 1034 (Fed. Cir. 2016) ; Silicon Graphics, Inc. v. ATI Techs., Inc. , 573 F.Supp.2d 1108, 1113-14 (W.D. Wisc. 2008) (entering judgment in favor of the plaintiff with respect to only the defendants' invalidity counterclaims that were pursued at trial, but deeming "abandoned or waived" the remaining counterclaims "[b]ecause defendants had a full chance to try all of their claims of invalidity"), aff'd , 607 F.3d 784 (Fed. Cir. 2010). In sum, the Court concludes that the defenses of obviousness-type double patenting, anticipation by the Goeddel patent, and improper inventorship that Defendants could have asserted against the '755 patent claims but did not litigate at trial, as indicated above, are deemed waived.
Further, "[i]n determining the appropriate rate, courts have considered whether, during the period of infringement, the plaintiff 'borrowed money at a higher rate, what that rate was, or [whether] there was a causal connection between any borrowing and the loss of the use of the money awarded as a result of [the defendant's] infringement.' " Apple, Inc. v. Samsung Elecs. Co., 67 F.Supp.3d 1100, 1121–22 (N.D. Cal. 2014), aff'd, 816 F.3d 788 (Fed. Cir. 2016), vacated in partand aff'd in part on reh'g en banc, 839 F.3d 1034 (Fed. Cir.) ; accordLaitram, 115 F.3d at 955 (upholding district court's decision to use the treasury bill rate in case where district court found no evidence of "a causal connection between any borrowing and the loss of the use of the money awarded as a result of the infringement.").
On February 26, 2016, a three judge panel of the Federal Circuit reversed this Court's order denying judgment as a matter of law to Samsung on claim 9 of the '647 patent. Apple Inc. v. Samsung Elecs. Co., 816 F.3d 788, 797 (Fed. Cir. 2016). On October 7, 2016, the Federal Circuit, sitting en banc, reversed the Federal Circuit three judge panel's decision and affirmed this Court's denial of Samsung's motion for judgment as a matter of law as to claim 9 of the '647 patent.
The copying of a patented invention may be evidence that an invention is not obvious where circumstances suggest that the copying is motivated by the merits of the patented invention. SeeCrocs, Inc. v. International Trade Commission , 598 F.3d 1294, 1311 (Fed.Cir.2010) ; Apple, Inc. v. Samsung Electronics Co., Ltd. , 816 F.3d 788, 809–810 (Fed.Cir.2016). CompareCable Elec. Products, Inc. v. Genmark, Inc. , 770 F.2d 1015, 1028 (Fed.Cir.1985) (noting that copying may also indicate obviousness such as, for example, copying motivated by the belief that a particular patent is invalid); Bayer Healthcare Pharm., Inc. v. Watson Pharm., Inc. , 713 F.3d 1369, 1377 (Fed.Cir.2013) ("copying in the ANDA context is not probative of nonobviousness because a showing of bioequivalence is required for FDA approval").