By Dorothy Atkins

Law360 (January 4, 2021, 9:30 PM EST ) The Federal Circuit has canceled upcoming oral arguments in a technology company's appeal seeking to restore a $10.1 million patent infringement verdict against Nintendo, after the appellant's lead counsel tested positive for COVID-19 and asked to reschedule the hearing.

In an unopposed Dec. 28 motion, Los Angeles-based iLife Technologies Inc. had asked the appellate court to reschedule oral arguments set for Wednesday. ILife said that Michael C. Wilson of Munck Wilson & Mandala LLP, who planned to argue the appeal, had tested positive for COVID-19 on Dec. 24. The company argued that the attorney's symptoms were getting worse and it would substantially impair his ability to prepare, so the hearing should be pushed back to a later date.

But in a per curiam Dec. 29 decision, the panel canceled the Wednesday hearing and decided that the appeal will be submitted on the briefs without oral argument. The panel then denied the request to reschedule the hearing as moot.

Counsel for Nintendo of America Inc. declined to comment Monday, and counsel for iLife didn't immediately respond to a request for comment.

ILife's high-stakes appeal challenges U.S. District Judge Barbara M.G. Lynn's post-trial decision in January 2020 to grant Nintendo's motion for judgment, tossing a jury's $10.1 million reasonable royalty award in favor of the hardware and software maker.

ILife accused Nintendo of infringing a patent covering motion-sensing technology with its Wii gaming systems, and in August 2017 a jury sided with iLife. But last year, Judge Lynn found that the patent describes technology that is unpatentable under the U.S. Supreme Court's 2014 Alice v. CLS Bank decision, which held that abstract ideas implemented by computers aren't patent-eligible.

But iLife appealed the judgment to the Federal Circuit, arguing in its opening brief in May that the patent's technology is not abstract but instead concretely improves how motion sensors work.

The company argued that the patent uses a specific novel technique of measuring two distinct modes of acceleration in order to distinguish between similar actions, such as falling and lying down, that had previously confounded motion sensors.

ILife added that this sort of invention is exactly the kind of creations that have been upheld as patent-eligible under Alice by the Federal Circuit in prior cases such as Thales Visionix Inc. v. United States in 2017 — which also dealt with an improved technique for motion trackers — and , which upheld a patent covering cardiac monitoring technology.

By combining a measurement of a body's movement and positioning, the technology in the patent was able to better assess movements, and Nintendo used that technology in its Wii gaming system for body-movement-based games, according to the brief.

But Nintendo fired back in its brief that iLife's claim construction is overly broad and only describes an abstract concept of detecting when a human falls down. Nintendo argued that its Wii products use "fundamentally different" technology in ways not contemplated by the patent and that the trial judge was right in granting its post-trial motion for judgment request.

The patent-in-suit is U.S. Patent No. 6,864,796.

iLife is represented by Michael Wilson, William Munck, S. Wallace Dunwoody, Shain Khoshbin, Jordan Strauss and Chase Cobern of Munck Wilson Mandala LLP.

Nintendo is represented by Stephen Smith, Matthew Brigham and Samuel Whitt of Cooley LLP.

The case is iLife Technologies Inc. v. Nintendo of America Inc., case number 20-1477, in the U.S. Court of Appeals for the Federal Circuit.

--Additional reporting by Cara Salvatore, Dani Kass and Daniel Siegal. Editing by Gemma Horowitz.

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