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Appeal is too late to raise percolating claim construction dispute

by Sarah Mezini | Jul 17, 2025 | Patents

The US Court of Appeals for the Federal Circuit affirmed a district court’s finding of noninfringement, concluding that the patent owner had improperly raised a claim construction issue for the first time on appeal – an argument not preserved at the district court level. Egenera, Inc. v. Cisco Systems, Inc., Case No. 23-1428 (Fed. Cir. July 7, 2025) (Prost, Taranto, Stark, JJ.)

Egenera owns a patent that enhances traditional server systems by enabling a one-time physical setup followed by flexible virtual reconfiguration. The company alleged that Cisco infringed specific claims of the patent.

During claim construction, the parties disputed the interpretation of two terms: “computer processor/processor” and “emulate Ethernet functionality over the internal communication network.” The district court adopted the ordinary meaning of “computer processor,” which excluded Cisco’s unified computing system from its scope. Regarding the term “emulate,” the district court considered whether it implied an absence from the internal communication network but made no further determinations as the parties did not explicitly raise a dispute regarding the remainder of the claim term. Based on its construction of “computer processor/processor,” the district court granted Cisco’s motion for summary judgment on certain claims. Later, at trial, a jury found no infringement of other asserted claims. Egenera moved for judgment as a matter of law (JMOL) or alternatively for a new trial, both of which the district court denied. Egenera appealed the post-trial rulings and the earlier summary judgment ruling.

The Federal Circuit affirmed the district court’s grant of summary judgment. It concluded that the record lacked sufficient evidence to show that Cisco’s system “emulated” Ethernet functionality as required by the asserted claims. The Court emphasized that Egenera’s argument focused narrowly on the construction of the term “emulate,” rather than on the evidentiary record. Moreover, neither party clearly indicated that the dispute centered on unresolved claim construction rather than factual issues. The Court noted that it will not address claim construction on appeal where the issue was not preserved in the district court and was inadequately presented on appeal. As a result, the Court confined its analysis to the sufficiency of the evidence and upheld the district court’s finding of noninfringement.

The Federal Circuit also affirmed the district court’s denial of JMOL. The Court emphasized that it needed to address only one of Cisco’s proposed noninfringement grounds to determine whether substantial evidence supported the jury’s verdict. It concluded that the jury had a sufficient evidentiary basis to find that Egenera failed to prove infringement.

Finally, the Federal Circuit upheld the district court’s denial of Egenera’s motion for a new trial. It rejected all of Egenera’s arguments, which alleged errors related to jury selection, jury instructions, expert testimony, closing arguments, and a verdict contrary to the weight of the evidence.

Motivation, expectation of success negate obviousness presumption in overlapping range case

by Dexter Hamilton | Jul 17, 2025 | Patents

The US Court of Appeals for the Federal Circuit affirmed (on its second review) a district court’s ruling upholding the validity of patent claims related to a long-acting injectable dosing regimen, finding that the presumption of obviousness does not apply automatically and must be grounded in specific factual findings, particularly regarding a skilled artisan’s motivation and expectations. Janssen Pharmaceuticals, Inc. v. Teva Pharmaceuticals USA, Inc., Case No. 25-1228 (Fed. Cir. July 8, 2025) (Prost, Reyna, Taranto, JJ.)

Janssen sued Teva under the Hatch-Waxman Act in 2018 after Teva filed an abbreviated new drug application (ANDA) seeking approval for a generic version of Janssen’s drug. Teva stipulated infringement but challenged the patent’s validity, arguing that all claims were obvious in light of prior art. The patent at issue covered a dosing regimen involving two “loading doses” spaced about a week apart, followed by monthly maintenance injections, designed to improve patient compliance compared to traditional oral dosing.

In 2021, the district court rejected Teva’s obviousness arguments, citing key differences between the claims and prior art, including the specific dosage amounts, the sequence of administration, and the requirement for deltoid injections. In 2024, the Federal Circuit initially vacated that decision and remanded for further analysis. On remand, the district court again found the claims nonobvious, and Teva appealed again.

A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. Teva argued that a presumption of obviousness should apply because the prior art disclosed equal loading doses (150 or 100 mg-eq) within the claimed range. The Federal Circuit disagreed, emphasizing that the presumption depends on factual premises (such as a skilled artisan’s motivation to optimize and expectations from routine experimentation), which were not met here. The Court noted that Janssen’s specific choice of a higher first dose followed by a lower second dose did not clearly fall within the presumption’s scope.

Turning to the obviousness analysis, the Federal Circuit found that the three primary prior art references did not disclose a loading-dose regimen. Teva’s additional references, which it claimed taught dose reduction strategies, were also deemed insufficient. The Court found that one expert cited a reference recommending a high first dose for acutely ill patients while another noted that long-acting injectables were not typically used for such patients. The Court found that the prior art taken as a whole undermined Teva’s position.

Teva further contended that the district court improperly considered safety and efficacy (factors not recited in the claims) and erred in finding that the multidose regimen added complexity that would discourage a skilled artisan. The Federal Circuit rejected these arguments, affirming that the district court appropriately considered the motivation to develop a safe and effective regimen and correctly found that the prior art lacked relevant safety or efficacy data for multidose approaches.

Prosecution history primacy: “Consisting essentially of” means what applicant said it meant

by Peter Marston | Jul 10, 2025 | Life Sciences, Patents

In a decision that underscores the primacy of prosecution history to determine claim scope, the US Court of Appeals for the Federal Circuit reversed the Patent Trial & Appeal Board’s interpretation of the transitional phrase “consisting essentially of,” holding that the patentee’s actions during prosecution narrowed the claims beyond the conventional construction. Eye Therapies, LLC v. Slayback Pharma, LLC, Case No. 23-2173 (Fed. Cir. June 30, 2025) (Scarsi, Dist. J., by designation; Taranto, Stoll, JJ.)

The case involved a method for reducing eye redness using low concentrations of brimonidine, a vasoconstrictive compound. Eye Therapies owns a patent that claims methods of administering brimonidine “consisting essentially of” the active ingredient. During inter partes review (IPR), the Board applied the typical construction of that transitional phrase, allowing for the presence of other active agents as long as they did not materially affect the invention’s basic and novel properties. Based on that reading, the Board found the claims obvious over prior art references that disclosed brimonidine in combination with other drugs. On appeal, Eye Therapies argued that the Board’s construction was too broad and inconsistent with the prosecution history.

The Federal Circuit agreed. Although “consisting essentially of” is generally understood to permit unlisted ingredients that don’t materially affect the invention, the Court emphasized that this meaning can be overridden by the intrinsic record. In this case, the applicant amended the claims to avoid prior art and repeatedly argued that the invention involved only brimonidine, with no other active agents. During the original prosecution, the examiner allowed the claims on that basis. The Court found these statements to be definitional, particularly in light of the applicant’s use of “i.e.” to equate the claim language with a brimonidine-only method. Given the clarity and consistency of the applicant’s position, the Court concluded that the prosecution history required a narrower reading than the one the Board used based on the phrase’s conventional meaning.

The Federal Circuit acknowledged that the patent specification disclosed embodiments containing additional active agents. That alone, however, did not justify a broader construction. The narrowing amendment came after the specification was drafted, and the Court reiterated that not every embodiment must fall within the scope of the claims, particularly when the claims have been narrowed during prosecution. The Court also noted that other embodiments in the specification were fully consistent with the narrower interpretation. Taken together, these factors reinforced the conclusion that the applicant’s prosecution statements – not the broader illustrative disclosures – defined the proper scope of the claims.

The Federal Circuit distinguished its 2009 decision in Ecolab v. FMC, where it declined to apply prosecution history disclaimer despite similar language. In Ecolab, the patentee initially stated that peracetic acid was the “sole antimicrobial agent,” but the examiner clarified that “consisting essentially of” did not mean “solely.” The applicant never repeated the statement and secured allowance on other grounds. The specification in Ecolab also described compositions that included other known antimicrobial agents, which supported the broader interpretation. In contrast, the applicant here amended the claims, consistently [...]

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Seeing double? Director instructs Board to resolve claim construction pre-institution

by Benjamin Ediger, Ph.D. | Jul 2, 2025 | Patents

The acting director of the US Patent & Trademark Office (PTO) vacated and remanded a Patent Trial & Appeal Board decision to institute two inter partes review (IPR) petitions that challenged the same claims. The acting director determined that the two petitions primarily differed with respect to claim construction. In a decision designated as “informative,” he authorized the Board to resolve claim construction pre-institution in view of the Consolidated Trial Practice Guide’s (CTPG) direction that “one petition should be sufficient to challenge the claims of a patent in most situations.” CrowdStrike, Inc. v. GoSecure, Inc., IPR2025-00068; -00070 (PTAB June 25, 2025) (Stewart, Act. Dir.) The PTO designates a decision as informative when it provides “norms on recurring issues, guidance on issues of first impression to the Board, guidance on Board rules and practices, and guidance on issues that may develop through analysis of recurring issues in many cases.”

CrowdStrike submitted two IPR petitions that challenged the same claims of GoSecure’s patent. The Board instituted both IPRs. GoSecure requested director review, asserting that instituting both petitions was an abuse of the Board’s discretion. On review, the acting director determined that the Board abused its discretion in view of the CTPG’s direction.

The acting director concluded that the two petitions did not reflect an exception to the CTPG’s direction. He determined that CrowdStrike’s petitions were primarily distinguished by the constructions applied to a claim term. The acting director explained that the Board should have construed the term at issue prior to granting institution, concluding that the Board’s institution decision amounted to improper expansion of CrowdStrike’s permitted word count and placed a substantial and unnecessary burden on the Board and GoSecure that could raise fairness, timing, and efficiency concerns. The acting director vacated and remanded the Board’s institution decision.

The acting director also instructed the Board that the patent owner should be allowed to “submit whatever arguments are necessary for the panel to make a claim construction determination” even if the patent owner has not addressed the issue.

When it comes to objective criteria of nonobviousness, nexus is looser for license evidence

by Amit Kumar Saha, PhD | Jun 26, 2025 | Patents

The US Court of Appeals for the Federal Circuit partially reversed a decision by the Patent Trial & Appeal Board, effectively relaxing the nexus requirements for patent licenses pertaining to their usage as objective indicia of nonobviousness. Ancora Technologies, Inc. v. Roku, Inc. et. al., Case Nos. 23-1674; -1701 (Fed. Cir. June 16, 2025) (Lourie, Reyna, Hughes, JJ.) (per curium).

Ancora owns a patent directed to limiting software use on a computer through license verification. The patented technology centers on storing an “agent,” which is a license verification program, in a computer’s basic input/output system (BIOS) rather than in volatile memory. In 2021, Nintendo, Roku, and VIZIO separately filed petitions for inter partes review (IPR) challenging claims of Ancora’s patent. The Board consolidated the proceedings and ultimately found certain claims of the patent unpatentable as obvious over a combination of two prior art references: Hellman (which discloses storing license information in nonvolatile memory) and Chou (which discloses a BIOS-level security routine). Ancora appealed.

Ancora raised three issues on appeal:

That the Board erred in construing the claim term “agent”
That even if the Board correctly construed “agent,” it nonetheless erred in determining obviousness under 35 U.S.C. § 103 based on a combination of Hellman and Chou
That the Board erred in its analysis of secondary considerations of nonobviousness.

The Federal Circuit affirmed the Board’s construction of “agent” to mean “a software program or routine” with no further limitations. The Court disagreed with Ancora’s argument that “agent” was limited to use in software only, primarily because neither the patent nor prosecution history provided any disclaimer of hardware. For similar reasons, the Court also disagreed with Ancora’s argument that “agent” was limited to use at the operating-system level.

On the obviousness determination, the Federal Circuit upheld the Board’s conclusion that the combination of Hellman and Chou rendered the claims prima facie obvious. The Court rejected Ancora’s argument that the Hellman/Chou combination would not provide motivation to combine since they are redundant.

The Federal Circuit disagreed with the Board’s analysis of the objective indicia of nonobviousness, particularly the treatment of Ancora’s licensing evidence. The Board found that Ancora failed to establish a sufficient nexus between the claimed invention and evidence of two objective indicia of nonobviousness: industry praise and licensing.

The Federal Circuit agreed with the Board on industry lack of nexus for the alleged praise (where the Board found that praise for the invention in a press release and an agreement between Ancora and another company offering products using the patent was directed broadly to the patent and not specifically to the challenged claims). However, the Court found that the Board erred regarding the appropriate nexus as it relates to Ancora’s licensing evidence.

The Board found that Ancora failed to show a nexus between the challenged claims and two licenses it obtained through settlement agreements in other cases. The Federal Circuit disagreed, finding that the Board applied an overly stringent nexus standard inconsistent with precedent. While products may require detailed [...]

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Looks like estoppel, sounds like estoppel … but it’s just director discretion

by Amol Parikh | Jun 26, 2025 | Patents

The acting director of the US Patent & Trademark Office (PTO) granted a patent owner’s request for discretionary denial and denied institution of an inter partes review (IPR) proceeding, finding that the petitioner engaged in unfair dealings by challenging a patent on which its employees were the inventors. Tessell, Inc. v. Nutanix, Inc., IPR2025-00322 (PTAB June 12, 2025) (Stewart, Act. Dir.)

Four individuals were Nutanix employees when they invented the subject matter of the challenged patent. Two of the individuals left to form Tessell and later hired the other two. Tessell, which now includes nearly all of the inventors of the challenged patent, filed a petition for IPR arguing that the claims of the patent were unpatentable. Nutanix filed a request for discretionary denial, which Tessell opposed.

The doctrine of assignor estoppel generally prevents an inventor who has sold or assigned a patent from challenging the validity of the patent. Although assignor estoppel does not apply in IPR proceedings, the acting director explained that the PTO may consider unfair dealings as a factor when determining whether to exercise discretion to deny institution under 35 U.S.C. § 314(a). The acting director found that it was inappropriate for the inventors to have used PTO resources to obtain a patent only to later advocate for its unpatentability. The acting director therefore exercised discretion to deny institution.

Case closed: Commission sanctions ruling isn’t an import decision

by Jodi Benassi | Jun 26, 2025 | Patents

The US Court of Appeals for the Federal Circuit dismissed an appeal for lack of jurisdiction, finding that a denial of sanctions at the International Trade Commission was not a “final determination” under trade law because it did not affect the exclusion of imported goods. Realtek Semiconductor Corp. v. ITC and Future Link Systems, LLC, Case No. 23-1187 (Fed. Cir. June 18, 2025) (Reyna, Bryson, Stoll, JJ.)

In 2019, Future Link entered into a license agreement with MediaTek, Inc. (not a party to the present litigation), which included a provision for a lump-sum payment if Future Link filed a lawsuit against Realtek. Future Link subsequently initiated a patent infringement complaint against Realtek before the Commission. During the proceedings, Future Link settled with a third party and determined that the settlement resolved the underlying dispute, prompting it to notify Realtek and ultimately withdraw its complaint. Realtek moved for sanctions, citing the MediaTek agreement as improper, but the administrative law judge (ALJ), while expressing concern about the agreement’s lawfulness, found no evidence it influenced the complaint and denied sanctions. The Commission terminated the investigation after no petition for review of the ALJ’s termination order was filed. Realtek then petitioned the Commission to review the denial of sanctions, but the Commission declined, closing the sanctions proceeding. Realtek appealed to the Federal Circuit, not challenging the investigation’s termination but seeking an order requiring Future Link to pay a fine based on the alleged impropriety of its agreement with MediaTek.

Realtek argued that the Commission and the ALJ violated the Administrative Procedure Act (APA). In response, the Commission and Future Link not only defended the denial on the merits but also challenged the Federal Circuit’s jurisdiction and Realtek’s standing to appeal. The Court agreed that it lacked jurisdiction under 28 U.S.C. § 1295(a)(6), which only authorizes review of final determinations under specific subsections of Section 337 of the Tariff Act of 1930 (19 U.S.C. § 1337). Because the Commission’s denial of sanctions under subsection (h) does not constitute a “final determination” under § 1337(c), the Court declined to address standing or the merits of the sanctions issue.

The Federal Circuit emphasized that a “final determination” within the meaning of § 1295(a)(6) refers to decisions affecting the exclusion of imported articles, such as those made under subsections (d), (e), (f), or (g) of § 1337. Realtek argued that the Commission’s denial of its sanctions request qualified as a final merits decision, but the Court disagreed, citing long-standing precedent, including its 1986 decision in Viscofan, S.A. v. ITC, that limits appellate jurisdiction to exclusion-related rulings. Because the sanctions decision had no bearing on whether products were excluded from importation, the Court held that it lacked the authority to review and dismissed the appeal.

CRISPR Clarity: Enablement Is Analyzed Differently Under §§ 102 and 112

by Peter Marston | Jun 18, 2025 | Life Sciences, Patents

In a decision underscoring the distinct standards governing enablement under §§ 102 and 112, the US Court of Appeals for the Federal Circuit affirmed the Patent Trial & Appeal Board’s finding that a prior art reference was enabling for purposes of anticipation, even in the absence of working examples. Agilent Technologies, Inc. v. Synthego Corp., Case Nos. 23-2186; -2187 (Fed. Cir. June 11, 2025) (Prost, Linn, Reyna, JJ.)

The case centers on CRISPR, the gene-editing technology that has reshaped the frontiers of biology and biotechnology. Agilent owns patents that claim chemically modified guide RNAs (gRNAs) designed to improve stability and performance in CRISPR-Cas systems. Synthego filed an inter partes review (IPR) petition asserting that the patents were unpatentable. The Board found all claims unpatentable, relying on a 2014 publication by Pioneer Hi-Bred that disclosed similar modified gRNAs. Agilent appealed.

Agilent challenged the Board’s finding that the prior art was enabling, arguing that Pioneer Hi-Bred merely proposed a research plan without demonstrating which specific modifications would yield functional gRNAs. Agilent emphasized that the reference lacked working examples and disclosed numerous nonfunctional sequences, contending that a skilled artisan would not have been able to identify a successful embodiment without undue experimentation. It also argued that the nascent state of CRISPR technology in 2014 compounded the unpredictability, making the reference non-enabling. In support, Agilent relied heavily on the Supreme Court’s 2023 decision in Amgen v. Sanofi, where the Supreme Court invalidated a broad genus claim for failing to enable its full scope.

The Federal Circuit was not persuaded. The Court drew a clear distinction between enablement under § 112 (which governs patent validity) and enablement under § 102 (which governs anticipation). The Court explained that the bar is lower for the latter, and that a prior art reference need only enable a single embodiment within the scope of the claim. While Amgen involved § 112, the Court emphasized that this case turned on § 102, where the standard is less demanding.

The Federal Circuit grounded this distinction in both the statutory text and the underlying purpose of the respective provisions. Statutorily, § 112 requires that a patent specification enable a person of ordinary skill in the art to “make and use” the invention. Section 102, by contrast, contains no such requirement. This divergence reflects a difference in purpose: § 112 ensures that the patentee does not claim more than they have taught, thereby preventing overbroad monopolies. As the Supreme Court explained in Amgen, “[t]he more a party claims, the broader the monopoly it demands, the more it must enable.” But the Federal Circuit emphasized that the Supreme Court’s reasoning in Amgen was rooted in the patentee’s burden to support the full scope of a genus claim under § 112. That concern, the Court explained, does not apply in the § 102 context, where the question is not how much the prior art claims, but whether it teaches enough for a skilled artisan to practice at least one embodiment without undue [...]

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Radio Silence Alone Doesn’t Prove Equitable Estoppel Defense

by Dexter Hamilton | Jun 18, 2025 | Patents

The US Court of Appeals for the Federal Circuit reversed a district court’s summary judgment grant based on an equitable estoppel defense, finding that the accused infringer failed to show that the patent owner’s silence or inaction influenced the decision to migrate to the accused system. Fraunhofer-Gesellschaft v. Sirius XM Radio Inc., Case No. 23-2267 (Fed. Cir. June 9, 2025) (Lourie, Dyk, Reyna, JJ.)

In 1998, Fraunhofer licensed patents related to satellite radio to WorldSpace International Network. This license was exclusive, with the right to sublicense. However, Fraunhofer also began a collaboration with XM Satellite Radio to develop satellite radio and required that XM obtain a sublicense from WorldSpace. XM ultimately launched a “high-band” satellite radio system. In 2008, XM joined Sirius Satellite Radio, to form Sirius XM (SXM). Sirius Satellite Radio had its own “low-band” system. The low- and high-band systems were incompatible, so SXM investigated which system it would use eventually, and it ultimately decided to shift toward the high-band system.

Meanwhile, WorldSpace filed for bankruptcy in 2008. In 2010, Fraunhofer, in its view, terminated its licensing agreement with WorldSpace. In 2011, XM formally merged with SXM. It is disputed whether SXM was licensed to the asserted patents after these events, but regardless, Fraunhofer remained silent until 2015, when it notified SXM that it believed that because its agreement with WorldSpace was supposedly terminated in 2010, the rights in the asserted patents had reverted to Fraunhofer, and thus SXM was not licensed and was infringing. Fraunhofer filed suit. However, the district court found that because of Fraunhofer’s silence, Fraunhofer was equitably estopped from bringing the patent infringement claims against SXM. Fraunhofer appealed.

The Federal Circuit reversed. There are three requirements for a successful equitable estoppel defense:

The patentee must engage in misleading conduct leading the accused infringer to reasonably infer that the patentee does not intend to assert its patent against the accused infringer.
The accused infringer must rely on that conduct.
As a result of that reliance, the accused infringer must be in a position such that it would be materially prejudiced if the patentee was allowed to proceed with its infringement action.

The Federal Circuit agreed with the district court that Fraunhofer’s refusal to raise the issue of potential infringement from 2010 until 2015, despite asserting that it reacquired the rights to the asserted patents in 2010, was misleading conduct. Fraunhofer knew that SXM’s product may have infringed the asserted patents and had previously required SXM to obtain a license to those patents. Fraunhofer also had built allegedly infringing features. Thus, it was reasonable for SXM to infer that Fraunhofer would not bring a claim against SXM.

However, the Federal Circuit disagreed with the district court on the issue of reliance. To show reliance, the Court explained that SXM must have established “that it at least considered Fraunhofer’s silence or inaction and that such consideration influenced its decision to migrate to the accused high-band system.” The evidence did not indisputably establish influence over SXM’s [...]

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No Blank Check: Vendor Can’t Claim Declaratory Judgment From Customer Lawsuits Alone

by Cecilia Choy, Ph.D. | Jun 18, 2025 | Patents

The US Court of Appeals for the Federal Circuit affirmed a district court’s dismissal of a declaratory judgment action, explaining that declaratory judgment jurisdiction does not “arise merely on the basis that a party learns of the existence of a patent owned by another or even perceives such a patent to pose a risk of infringement, without some affirmative act by the patentee.” Mitek Sys., Inc. v. United Servs. Auto. Ass’n, Case No. 23-1687 (Fed. Cir. June 12, 2025) (Taranto, Schall, Chen, JJ.)

Mitek develops a mobile image capture software development kit called MiSnap. United Services Automobile Association (USAA) sent letters to and filed infringement claims against several of Mitek’s bank customers. Mitek sought a declaratory judgment that it and its customers did not infringe four USAA patents related to mobile check deposits, arguing that it had standing based on a reasonable apprehension of suit and indemnity demands from its customers. The district court dismissed the declaratory judgment action, which Mitek appealed. The Federal Circuit vacated and remanded the district court’s dismissal, finding that the decision lacked adequate explanation and support.

On remand, the district court again analyzed Mitek’s two jurisdictional bases for its declaratory judgment action: potential liability for infringement and alleged demands for indemnity made by licensees after USAA sent letters seeking to license USAA patents. The district court again dismissed the case, determining that Mitek could not establish a case or controversy between USAA and Mitek as to infringement, and determining that indemnification agreements and USAA’s letters to Mitek customers did not create a reasonable potential for Mitek’s indemnification liability. Even if it had jurisdiction, the district court stated that it would exercise its discretion to decline jurisdiction, because the best means by which Mitek could defend the MiSnap software used by the banks was to intervene in a future litigation brought by USAA against a Mitek customer regarding the asserted patents. Mitek again appealed.

The threshold question for declaratory judgment jurisdiction is “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Regarding Mitek’s infringement basis, the Federal Circuit found that Mitek did not establish a reasonable potential of the suit for infringement. The Court’s consideration also included post-filing events, including settlements of related customer suits and Patent & Trial Appeal Board decisions invalidating asserted patent claims. These developments further undermined any ongoing controversy. The Court then addressed the allegations of direct infringement, induced infringement, and contributory infringement:

Direct Infringement. Mitek admitted that MiSnap alone did not perform all elements of any asserted claim. USAA also never accused MiSnap of satisfying every limitation of an asserted claim. Instead, MiSnap’s “unadulterated” software implemented by third-party banks failed to meet certain elements of the asserted claims. And although Mitek stated that it evaluated the complete mobile deposit system, Mitek could not have had a reasonable apprehension of suit based on testing its [...]

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