By : Richard Waters in San Francisco
Source : http://www.ft.com
category : Patent News
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Eastman Kodak has lost a preliminary ruling in a key patent infringement case against Apple and Research In Motion, casting a cloud over an upcoming patent auction that will help to determine whether it can emerge intact from bankruptcy.
The US International Trade Commission ruled on Monday that the defendants both infringed on one of Kodak’s patents, which governs the way images are previewed on a digital camera. However, it also concluded that the patent did not pass the test of being “non-obvious” and so should be declared invalid.
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The loss comes as Kodak, which filed for bankruptcy protection early this year, is gearing up for an auction of its digital imaging patents, which are considered among its most valuable assets.
The company has been talking informally to potential buyers in the hopes of attracting a “stalking horse” bidder who would put down an initial offer for the portfolio of rights, according to a person familiar with the situation. Nortel Networks used a similar tactic last year in the auction of its patents, eventually leading to a $4.5bn sale.
Having a patent at the centre of a high-profile lawsuit declared invalid just before the start of the auction would “throw a monkey wrench into the process”, said Jim Bromley, a partner at Cleary Gottlieb, who handled the Nortel bankruptcy.
Kodak’s decision to file a lawsuit against Apple was widely seen as a negotiating tactic, since Apple is considered one of the companies likely to bid for the Kodak rights and might be more likely to make an offer to resolve the legal dispute.
“It’s a risky tactic,” Mr Bromley said. While the ITC preliminary ruling only dealt with one patent, the fact that it lies at the centre of such an important case suggests that Kodak believes the patent is one of its most valuable, he said.
Kodak called Monday’s ruling a “recommendation [that] represents a preliminary step in a process that we are confident will conclude in Kodak’s favour”. It also said it would press its case with the full commission, which must decide whether to accept the preliminary finding.
Monday’s finding stands in contrast to an earlier judgment by the US Patent and Trademark Office, which has already ruled that the patent meets the test of being “non-obvious” that is required before a patent can be granted.
Source : http://www.ft.com/intl/cms/s/0/733252c8-a39a-11e1-988e-00144feabdc0.html#axzz1vaO54gPW
