Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Today I'm screening the movie “Escape from San Jose,” starring Nokia. The IP licensing company hopped in a metaphorical car and tried to drive as fast as it could to San Francisco to avoid another FRAND/antitrust trial in a certain judge's courtroom. But Sheriff Nathanael Cousins pulled Nokia over and now it's going to have some explaining to do for the FRAND hanging judge, Lucy Koh. Plus, is the Supreme Court really going to wade into the scope of PTAB appellate review? Signs are starting to point that way. And I have a look at who got the work in an IP/antitrust case against Gilead Sciences, and some of the IP highlights from a smashing new podcast. As always feel free to email me your own thoughts and follow me on Twitter.

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Judge Lucy Koh

Nokia Runs From San Jose but It Can't Hide

When it comes to FRAND and antitrust, Nokia wants to put as much distance as possible between itself and U.S. District Judge Lucy Koh.

And really, can you blame them? Koh just handed Nokia the award for Best Supporting Monopolist in the FTC v. Qualcomm bench trial. In her findings of fact last month, the judge found that a Nokia executive was “not credible” about the company's licensing practices and “conveniently claimed complete ignorance”about specific Nokia licenses. She concluded that Nokia was “following Qualcomm's lead” in licensing only at the OEM level.

So when parts supplier Continental Automotive Systems sued Nokia and others in the Northern District of California last month, accusing them of refusing to license their 2G, 3G and 4G SEPs to auto parts suppliers at the supplier level, you can bet there's one judge especially that Nokia really, really did not want to appear in front of.

And guess who Continental v. Avanci just got assigned to? (Here's a musical hint.)

Continental, which splashed Koh's FTC opinion all over its May 10 complaint, had naturally requested assignment to the San Jose Division. The case was assigned to U.S. Magistrate Judge Nathanael Cousins.

Nokia literally didn't want to be in the same courthouse at Judge Koh. The company formally declined assignment to a magistrate judge on Friday, and along with co-defendants Avanci and Conversant Wireless moved for district-wide reassignment. “Plaintiff pleads antitrust claims in this case, and the Local Rules exclude cases involving antitrust claims from the division-specific venue rule,” attorneys for the companies wrote.

But you know the old saying about striking at the king? Nokia swung but missed. Before bowing out of the case, Cousins rejected the transfer request. He reasoned that Continental's complaint includes claims for breach of the FRAND contractual obligation as well as antitrust. “The Clerk of Court therefore was correct to assign this case to the San Jose division,” Cousins concluded.

Whereupon Cousins stepped aside, the three-judge San Jose wheel was spun, and the case landed before … U.S. District Judge Lucy Koh.

She's gotten right to work. Earlier today Koh denied Nokia's request to extend the deadline for responding to Continental's motion for an anti-suit injunction to September 6. “The Court concludes that Nokia Defendants have not convincingly demonstrated why they need two and a half months to respond to Plaintiff's motion,” she wrote, though she did give them a one-month extension, till July 24.

In the meantime, Nokia surely isn't done plotting its escape. Nokia's Alston & Birdcounsel Ryan Koppelman has stated repeatedly in his papers that Nokia is not conceding that it was properly served in the Northern District, and that it reserves the right to challenge jurisdiction and venue at a later date.

Hey, What's in That Box, Pandora?

The Federal Circuit hears some 150 appeals a year from AIA proceedings at the Patent Trial and Appeal Board. The Supreme Court just made sure that number isn't going to grow even higher.

I have details here on the court's decision Monday to pass up two cases that sought to expand appellate standing in AIA proceedings. The upshot is that the Federal Circuit is likely to continue applying strict criteria for petitioners who want to appeal PTAB losses.

In the meantime, I think it's worth noting that high court has now relisted another PTAB case, Dex Media v. Click-to-Call Technologies, for a third conference on June 20. Relists don't automatically result in cert grants, of course, but they increase the odds.

Click-to-Call presents one small issue—whether the voluntary dismissal of a complaint stops the one-year clock on filing a PTAB petition—and a much bigger one: whether the PTAB's time bar decisions are appealable at all.

The PTO and the solicitor general's office are telling the Supreme Court that the Federal Circuit's 2018 en banc decision in Wi-Fi One v. Broadcom, which broadened the Federal Circuit's power to review PTAB institution decisions, was wrongly decided. But the SG is recommending against certiorari in Click-to-Call,because the PTO “now agrees with the Federal Circuit's ultimate conclusion” about voluntary dismissals, and “going forward, the agency would not exercise its discretion to institute inter partes review in similar circumstances.”

Yes, it's very complicated. And the Supremes can't kick the can down the road by issuing a CVSG, since it already has the solicitor's views. You can bet the PTAB bar will be a-flutter if the justices ultimately grant cert.

Who Got the Work?

Gilead Sciences Inc. and its co-defendants in a high-profile antitrust class action have lawyered up. White & Case has entered appearances for Gilead in Staley v. Gilead Sciences, while Arnold & Porter Kaye Scholer is representing Bristol-Myers Squibb Co.; Drinker Biddle Reath represents Johnson & Johnson Inc.; and Holland & Knight reps Japan Tobacco International USA Inc.

Staley alleges that Gilead and the other drug companies have inflated the price of HIV meds through collusive licensing agreements, such as by combining Gilead compounds whose patents are expiring with other companies' more recently patented compounds into fixed-dose combinations. The strategy is “crippling this nation's ability to stop new HIV infections,” the plaintiffs contend in a May 14 complaint.

Gilead has said that it enters into partnerships with other companies to create life-saving therapies. “Any suggestion that we had improper motives is absolutely false,” the company has said.

The Staley plaintiffs include a handful of drug consumers and two labor union insurance funds. They're represented by Durie Tangri's Daralyn Durie, Mark Lemley, David McGowan, Laura Miller and W. Henry Huttinger; Hilliard & Shadowen's Steve Shadowen, Robert Hilliard, Richard Brunell, Matthew Weiner, Frazar Thomas and Nicholas Shadowen; Hagens Berman partners Steve Berman, Thomas Sobol, Kristen Johnson, and of counsel Gregory Arnold; Radice Law Firm founder John Radice and of counsel Daniel Rubenstein; Shepherd, Finkelman, Miller & Shah partner Natalie Finkelman Bennett, of counsel Jayne Goldstein and attorney Michael Ols; and Sperling & Slater's Paul Slater, Eamon Kelly, Alberto Rodriguez and David Germaine. 

Teamsters Local 237 and some of its members have joined the class via a related action. They're represented by Kevin Ruf and Lionel Glancy of Glancy Prongay & Murray.

Gilead is being represented by White & Case partners Heather Marie Burke, Christopher Curran, Heather McDevitt and Peter Carney.

Bristol-Myers Squibb is repped by Arnold & Porter Kaye Scholer partners Daniel Asimow, Laura Shores and associate Cindy Hong.

Johnson & Johnson is represented by Drinker Biddle & Reath partners Paul Riehle, Paul Saint-Antoine and Joanne Lewers.

Appearing for Japan Tobacco are Holland & Knight partners Ashley Shively, Jerome Hoffman and Neal Beaton.

Heels of Justice podcasters Sarita Venkat and Katherine Minarik

My ALM colleagues Vanessa Blum and Leigh Jones recently sat down with Sarita Venkat and Katherine Minarik, the in-house lawyers behind Heels of Justice, the inspirationally named podcast on inspirational women lawyers.

Venkat and Minarik each have backgrounds in intellectual property, so they've already featured a half-dozen star IP lawyers in their four months of podcasting, and they've drawn out some interesting nuggets from each.

Maynard Cooper partner Sasha Rao outlines the developing law of flying cars,including NASA's Unmanned Vehicle Traffic Management program, and Winston & Strawn partner Kathi Vidal recounts her pre-law work at GE Aerospace on air-to-air missiles and control stick circuitry.

Design patent expert and great Twitter follow Sarah Burstein has the best answer I've heard to the question about overcoming a mistake during one's career. And Fish & Richardson trial lawyer extraordinaire Juanita Brooks comes clean about the clever voir dire question that helped her get John DeLorean acquitted of embezzlement (hint: it has to do with the TV show Dynasty).

My favorite nugget of all: Hearing Noreen Krall and Mallun Yen credit my former colleague Brenda Sandburg's long-ago question: “How many other women are there in your position?” for helping provide some of the inspiration for the founding of the ChIPs network.

That's all from Skilled in the Art today. I'll see you all again on Friday.