Another day, another digital heath patent invalidated by the courts. After an International Trade Comission judge invalidated Jawbone patents in May and a federal judge invalidated American Well patents in June, now another ITC judge has nixed a number of Fitbit patents, likely on the same grounds. Bloomberg broke the news.
Those closely following the sprawling legal drama of Fitbit and Jawbone will recall that, in September, Fitbit sued Jawbone in a Delaware court over several patents, responding to Jawbone's suit against Fitbit which concerned both patents and alleged trade secret theft. A similar fight has played out in parallel at the International Trade Commission, which has the power to block imports into the US, effectively crippling the losing company's ability to deliver products to the US market.
In a sealed decision that is not currently available to the public or journalists, judge Thomas B. Pender ruled three Fitbit patents invalid and terminated this particular investigation, but the ITC is also weighing a suit brought by Jawbone against Fitbit that alleges Fitbit infringed on Jawbone's trade secrets.
"A judge for the International Trade Commission has determined that all Fitbit patents asserted against Jawbone before the ITC are invalid and has thrown out the entire ITC case brought by Fitbit, which was slated to go to trial on August 4. This case, among other patent actions, was brought improperly by Fitbit in an attempt to burden Jawbone with having to defend invalid patents in multiple venues," a Jawbone representative said in a statement. "Jawbone's case against Fitbit before the ITC is still pending, and the company awaits a decision. It asserts infringement of Jawbone's trade secrets. Jawbone's trade secret action against Fitbit in California state court continues to move toward trial."
In its own statement, Fitbit said it would seek to reverse the court's decision.
“As the pioneer and leader in the connected health and fitness market, Fitbit has developed and delivered innovative product offerings to empower its customers to lead healthier, more active lives," the company said in a statement. "Since its inception, Fitbit has more than 300 issued patents and patent applications in this area. While we are disappointed in the administrative law judge’s decision, we believe we have a strong legal basis to ask the full Commission to reverse it. Fitbit will continue to assert its IP against Jawbone as appropriate to protect the innovations central to our product offerings.”
Because the document is sealed, it's hard to say on what grounds the judge invalidated the patents. But the last two cases like this cited the same Supreme Court precedent: Alice v. CLS Bank. Much older precedents have created a category of inventions that are unpatentable because they constitute an "abstract idea". Under Alice, a 2014 unanimous decision, the Supreme Court devised a test for whether computer software was a patentable invention or just the application of technology to an unpatentable human process, and therefore an unpatentable abstract idea.