Welcome to Skilled in the Art. I'm Law.com IP reporter Scott Graham. Here's what's cooking today:

•  If patent infringement cases aren't "exceptional," they're precluded from being "shams" for antitrust purposes.

•  Former PTO Director Michelle Lee joins Amazon Web Services.

•  Lowenstein & Weatherwax adds lateral from Knobbe Martens.

As always you can email me your own thoughts and follow me on Twitter.

No Antitrust Offramp for Eyelash Patent Wars

I swear, sometimes I believe there are no more than a dozen patent cases being litigated around the country. It just seems like 10,000 because they all keep going up to the Federal Circuit and back down to the district courts over and over again.

Exhibit A is Monday's order from U.S. District Judge Brian Martinotti of New Jersey in Duke University v. Akorn. It concerns litigation over generic versions of Allergan's $70 million a year Latisse eyelash enhancer. That had a familiar ring—I wrote about Latisse litigation in 2013.

The following year, the Federal Circuit ruled 2-1 that Duke's 7,388,029 and 7,351,404 patents, which it licenses to Allergan, are invalid as obvious. While that appeal was pending Allergan and Duke asserted three continuation patents against Akorn in North Carolina. U.S. District Judge Catherine Eagles ruled that all three claim "substantially the same subject matter" as the '404 and were therefore, too, invalid.

That didn't stop Allergan from maintaining yet another eyelash patent case against Akorn before Eagles. Again, she ruled that Duke and Allergan were collaterally estopped by the Federal Circuit's 2014 decision.

So now, Duke and Allergan are back a fourth time, this time in New Jersey with a patent obtained in 2017, and Akorn is saying enough. The company and its Schiff Hardin and Schnader Harrison Segal & Lewis attorneys have counterclaimed for monopolization and attempted monopolization of the market for bimatoprost, the active ingredient in the Latisse ophthalmic solution. They allege that Allergan and its "co-conspirator" Duke have brought a series of sham lawsuits with no other goal than improperly delaying entry of generics into the market.

"Of the seven patents asserted in Latisse I—III, Plaintiffs failed to establish infringement of a single valid patent claim," Akorn complains.

Granted, the antitrust argument is always going to be an uphill climb. The Federal Circuit made clear just last week that it's not enthusiastic about such claims. But in dismissing Akorn's antitrust claims Monday, Martinotti set down what seem like strict new rules, at least for his court.

First, even if Duke's latest patent does contain "substantially similar claims" to its invalidated patents, the PTO issued it after the Federal Circuit's ruling and it is therefore presumed valid. "The assertion of claims in a patent whose validity has not yet been litigated cannot be said to be 'objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits,'" Martinotti wrote, citing the Supreme Court's Professional Real Estate Investors case on baselessness.

Moreover, Akorn and a co-defendant moved for attorneys fees in the North Carolina infringement cases and each time were turned down. (As Duke and Allergan put it in their motion to dismiss, the antitrust claims are "a belated attempt to re-litigate unsuccessful motions for attorneys' fees under U.S. patent law that Akorn raised or could have raised long ago.")

Martinotti held Monday that because the patent infringement cases weren't weak enough to justify an "exceptional case" finding, they cannot as a matter of law be "sham" litigation proceedings—a prerequisite for getting around the Noerr-Pennington bar to antitrust. "As the district court [in North Carolina] has already determined—by a preponderance of the evidence—that the litigations are not exceptional, they cannot be said to be objectively baseless," Martinotti concluded.

In short, we've still got years and years to go in the eyelash wars.

Duke's and Allergan's victorious team included Fish & Richardson partners Jonathan Singer and Elizabeth Flanagan; Weil Gotshal & Manges partner Eric Hochstadt; and Walsh Pizzi O'Reilly Falanga partners Liza Walsh and Katelyn O'Reilly.

Akorn and subsidiary Hi-Tech Pharmacal were represented by Schiff Hardin partners Sailesh Patel and Joel Wallace and associate Helen Ji; and by Schnader Harrison Segal & Lewis partner Lisa Rodriguez.

Michelle Lee, Amazon Business Executive

Michelle Lee likes to predict the future. With data or without it.

I interviewed the former PTO director in 2017, as she was gearing up to teach a class that would address safety, privacy, liability and ownership issues around artificial intelligence and other disruptive technologies. That Stanford class was "just a piece of what I'm working on," she told me then. "There are many other things, but that's just to start as I continue to evaluate other opportunities."

Well, a big opportunity in that space has indeed come along. As I reported earlier today, Lee has now joined Amazon Web Services (AWS) as vice president of its Machine Learning Solutions Lab.

Lee said she will lead a team whose mission is working with companies and organizations across sectors to solve business needs using AWS' cloud-based, artificial intelligence and machine learning solutions.

"I am a firm believer in the promise of artificial intelligence and its potential to transform our lives for the better," Lee said. "It's an exciting opportunity in an area that I have been passionate about since my graduate school days at MIT's Artificial Intelligence Lab."

Lee was deputy general counsel in charge of patent strategy at Google before joining the PTO in 2012. She ran the agency's Silicon Valley office for a few years, then President Barack Obama appointed her as the PTO's first woman director in 2014. Lee left in June 2017 and was succeeded by Andrei Iancu.

Her new role appears to be more business than legal. Amazon has many talented attorneys who will remain focused on patents, though it's hard to imagine Lee won't be hit up for a consult from time to time, particularly when it comes to the ways of the Patent Office.

According to Amazon Web Services' website, the Machine Learning Lab pairs AWS customers and partners with machine learning experts to prepare data, build and train models, and put models into production.

"I look forward to helping organizations harness the power and potential of machine learning to solve challenging, real-world problems," Lee said Monday.

Bridget Smith, Lowenstein & Weatherwax

IP Lateral: Lowenstein & Weatherwax

Bridget Smith, a former co-chairwoman of the PTAB group at Knobbe Martens, is joining Lowenstein & Weatherwax, an 11-lawyer boutique in Los Angeles specializing in administrative challenges to patent validity.

Smith said Tuesday she couldn't pass up the opportunity of working for a small firm with a big reputation. Lowenstein & Weatherwax has defended patents held by owners such as Rockstar Consortium, Maxim Integrated Products, Seven Networks and IXI IP against attacks from companies such as Apple, Google, Samsung and JPMorgan Chase & Co. Despite its size, the firm ranks No. 20 on Unified Patents' list of patent owner counsel at the PTAB. Knobbe ranks No. 8.

I reported her hiring here on The Recorder.

Smith worked as a software engineer at Motorola Semiconductor Products and then as a data scientist consultant at Arizona's Khimetrics. She said Tuesday that the latter's acquisition by SAP was what prompted her to enroll in law school at Arizona State. "I saw how important patents were to the startup. They played a big part in the acquisition," she said. "I wanted to be a part of that."

Her background as an engineer comes in handy during hearings at the PTAB, she said. "The judges you work with probably have an equally good technical background, and they want their questions answered," she said. She's comfortable "getting down in the weeds" in highly technical cases, she said.

Smith is at least the third Knobbe partner who's held a leadership role in its Patent Office Litigation Group to leave the 275-lawyer firm in the last year. Brenton Babcock joined Womble Bond Dickinson last fall, and Michelle Armond left in May to start Armond Wilson. Smith had been with Knobbe for 12 years. "I leave behind many friends and colleagues at Knobbe Martens, an extraordinary firm, where I began my career," she said in a written statement. "I'm excited to be working with Ken, Nate and the other attorneys at Lowenstein & Weatherwax LLP."  

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