From On–Sale To Obvious: Kelora Systems Is Twice Bitten By A Prior Product
As reported in Internet Retailer, Kelora Systems, LLC has been actively pursuing a litigation–and–licensing strategy under a patent in the field of parametric search, targeting ecommerce firms of all stripes. A California federal district judge today (again) brought that campaign to a halt, finding (again) that the patent–in–suit was invalid.
In a prior suit, the former patent–owner, PartsRiver, Inc., filed suit against eBay, Microsoft, and others. On summary judgment, the court ruled that the asserted claims were invalid because there had been a commercial offer of the claimed invention for sale that pre–dated the patent application, triggering the on–sale bar of 35 U.S.C. § 102(b). While that case was on appeal, PartsRiver amended the relevant claims and added a new claim in simultaneous reexamination proceedings in the Patent Office. The asserted claims having vanished, the Federal Circuit dismissed the appeal, and the original lawsuit disappeared.
Kelora then sued (and was sued by) a number of alleged infringers, including eBay and Microsoft, as well as Target, Amazon.com, NewEgg, and Costc and others, asserting the new claims of the revived patent. The accused infringers moved for summary judgment, arguing that the same product that had barred the old claims rendered the new claims obvious when considered in light of contemporary references in the prior art. The court agreed, entering summary judgment of invalidity of the revamped claims. In the face of this second defeat, Kelora would seem a likely bet to take another appeal to the Federal Circuit. If it does so, only time will tell whether that court will have the opportunity to weigh in on the merits this time around.