Amazon Attorney’s Aggressive Tactics Raise Eyebrows at Federal Circuit

Amazon Attorney's Aggressive Tactics Raise Eyebrows at Federal Circuit

In a courtroom clash at the Federal Circuit, tensions soared as Amazon’s legal representative, J. David Hadden of Fenwick & West LLP, tested the patience of U.S. Circuit Judge Raymond Chen. The high-stakes battle centers around Freshub’s claims that Amazon infringed on its voice technology patents, with Amazon countering that the patents are unenforceable due to a strategic delay in their revival.

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Judge’s Intervention Amid Verbal Sparring

During Friday’s proceedings, Hadden, in a bid for dominance, spoke over U.S. Circuit Judge Richard Taranto. Judge Chen stepped in, urging, “Let the judge finish,” but the tension escalated when Hadden dodged direct inquiries, prompting an exasperated Judge Chen to demand straight answers.

Amazon Atty Gets On Fed. Circ. Judge’s Nerves: The Crux of Amazon’s Inequitable Conduct Argument

Amazon contends that Freshub intentionally abandoned its patent application for five years until the emergence of Amazon’s Alexa. The pivotal question is whether this delay was a deliberate move, forming the backbone of Amazon’s inequitable conduct argument.

Echoes of Past Precedent: FMC Corp. v. Manitowoc Co.

Judge Chen pressed Hadden on the 1987 FMC Corp. v. Manitowoc Co. precedent, seeking clarity on whether a client can be presumed to have knowingly abandoned its patent application. Frustration peaked as Judge Chen demanded a straightforward response, emphasizing the importance of legal intent.

Freshub’s Counterargument: A Changed Corporate Landscape

Freshub’s counsel, Paul J. Andre of Kramer Levin Naftalis & Frankel LLP, pivoted the narrative, asserting that changes in ownership led to the application’s revival. Judge Taranto probed for a “non-nefarious scenario,” but Freshub’s scenario seemed to vanish into a “black hole” during the corporate transition.

Amazon Atty Gets On Fed. Circ. Judge’s Nerves: Unraveling the Abandonment Story

Amazon’s narrative centers on Freshub’s predecessor, Ikan, abandoning a patent application in 2012, only for it to resurface with the success of Alexa. Judge Chen questioned the plausibility of an experienced patent attorney allowing abandonment, drawing attention to the nuanced difference between knowledge of abandonment and the client’s intent.

Legal Chess on Claim Construction and Cross Appeal

While a Texas federal jury ruled in Amazon’s favor in June 2021, finding no infringement, the Federal Circuit now grapples with claim construction and inequitable conduct in Freshub’s appeal. The patents in question are U.S. Patent Nos. 9,908,153; 10,213,810; and 10,232,408.

Amazon Atty Gets On Fed. Circ. Judge’s Nerves: Closing Arguments and Judicial Panel

As Hadden asserted that Weiss, Freshub’s prosecuting attorney, was aware of the abandonment, Judge Chen intervened, distinguishing between knowledge of abandonment and the client’s intent. U.S. Circuit Judges Richard G. Taranto, Jimmie V. Reyna, and Raymond T. Chen presided over the tense proceedings.