Patent Office Litigation

When Facebook was first sued for patent infringement over eight years ago, the young company turned to Cooley.

The case was filed in the Eastern District of Pennsylvania by venture capital firm, Cross Atlantic Capital Partners (XACP) just one year after Facebook expanded its site from Harvard University to the general public. XACP claimed that its "online community" patent covered a wide variety of key Facebook features. XACP was seeking royalties, a permanent injunction against Facebook, and attorneys' fees.

Cooley guided the company through seven years of hotly contested litigation across multiple forums. Just a few weeks before trial, Facebook asked the Patent Office to invalidate the patent based on several systems and books that predated the patent, and convinced the district court to stay the case pending the Patent Office's decision.

The Patent Office initially found the claims valid. Facebook appealed to the Board of Patent Appeals (BPAI) and the BPAI judges ruled that the Examiner was wrong, and that the patent claims were invalid. XACP appealed and, in 2014, the Federal Circuit affirmed the invalidity of all claims of the patent.

Cooley represented Neptune in multiparty patent infringement actions regarding its krill oil containing omega-3 phospholipid product against several manufacturers and distributors of competing krill oil.

Cooley previously filed a Section 337 complaint at the International Trade Commission against several competitors, resulting in all of Neptune's closest competitors entering into licensing agreements for patents relating to its fish krill oil.

In a parallel IPR proceeding filed against Neptune by Aker BioMarine, the largest krill oil producer in the world, the Patent Trial and Appeal Board issued a decision that two select krill oil patent claims are valid. As a result of this ruling, our client is positioned to secure royalties.

In May 2015, Cooley convinced a panel of judges at the PTAB to cancel claims of an online messaging patent asserted against Facebook by plaintiff EveryMD. A three-judge panel ruled that the challenged claims of the patent are invalid and also threw out EveryMD's proposed new claims finding that the plaintiff failed to prove the validity of those claims in light of prior art. In March 2016, the Federal Circuit upheld the PTAB's decision in its entirety.

Cooley convinced the PTAB to reject multiple inter partes review petitions filed by Kyle Bass and his hedge fund created entity, Coalition for Affordable Drugs VII LLC, challenging the validity of client Horizon Pharma's patents on VIMOVO, an arthritis drug that is responsible for a substantial portion of Horizon's annual revenues.

In rejecting the petitions, the PTAB found that Bass failed to establish a reasonable likelihood of being able to prove that the challenged claims are unpatentable. In the past year, Bass has filed multiple IPRs against drug companies as part of an investment strategy to drive down stock prices.