Yesterday, Thu., June 14, 2012, in Bard v. W.L. Gore, No. 2010-1510, the Federal Circuit (Newman (dissent-in-part), Gajarsa and Linn) clarified that the threshold objective recklessness prong of willfulness ultimately is a question of law for the court to decide based on mixed questions of law and fact that the Federal Circuit will review de novo.  This case provides a good summary of the current willful infringement standard.

Continue Reading Patent Alert: Federal Circuit clarifies threshold objective recklessness willfulness prong question of law reviewed de novo (Bard v. W.L. Gore)

Today, Thu., June 7, 2012, in In re Bill of Lading, No. 2010-1493, the Federal Circuit (Newman (dissent), Prost and O’Malley) ruled that complaints were properly dismissed for not pleading contributory infringement, but they sufficiently pled induced infringement.  This case provides important guidance in pleading patent infringement, which is often a concern in multiple defendant cases.

Continue Reading Patent Alert: Federal Circuit clarifies how to plead direct and indirect infringement (In re Bill of Lading)

Today, Thu., May 31, 2012, in Merial v. Cipla, No. 2011-1471, the Federal Circuit (Lourie, Schall (dissent) and Reyna) affirmed entry of contempt for violating an injunction that had been entered as part of a default judgment against a foreign defendant that had not contested the original action because that defendant believed personal jurisdiction was not properly pled or met.  This complex case provides insight into important procedural nuances of personal jurisdiction, default judgments, injunctions, intervention, contempt proceedings and risks thereof.  A quick summary of the case is provided below, which will be followed later by a more thorough analysis with explanatory diagrams.

Continue Reading Patent Alert: Federal Circuit sustains contempt for violating injunction previously entered as part of default judgment (Merial v. Cipla)

Today, Wed., May 30, 2012, in Mintz v. Dietz & Watson, No. 2010-1341, the Federal Circuit (Rader, Newman, and Dyk) vacated a summary judgment of invalidity because the district court improperly applied many of the Graham obviousness factors.

Continue Reading Patent Alert: Federal Circuit clarifies obviousness standard for predictable arts (Mintz v. Dietz)

Today, Thu., May 17, 2012, in In re Baxter, No. 2011-1073, the Federal Circuit (Newman (dissent), Lourie and Moore) affirmed the Patent Office’s finding patent claims invalid in a reexamination that was provoked by a party who failed to invalidate those claims in a parallel litigation.  This case shows a benefit to a patent challenger seeking reexamination of patents asserted against them in parallel litigation.

Continue Reading Patent Alert: Federal Circuit affirms reexam invalidating patent found not invalid in litigation (In re Baxter)

Today, Fri., May 4, 2012, in In re Misc EMC, Misc. No. 100, the Federal Circuit (Rader, Dyk and Moore) granted mandamus and ordered the  E.D. Tex. district court to reconsider its ruling that allowed joinder of 18 defendants based on a new “sameness test” for joinder (rejecting the district court’s “not dramatically different” test).  The new sameness test appears to limit joinder of multiple defendants in a single case, but the Court noted that cases still may be coordinated in a single court if venue is proper and that multidistrict litigation may be proper for pretrial issues of claim construction and patent invalidity.

Continue Reading Patent Alert: Federal Circuit creates “sameness test” for joinder of multiple defendants (In re EMC)

Today, Wed., Apr. 18, 2012, in Kappos v. Hyatt, No. 10-1219, the Supreme Court (Thomas) (Sotomayor and Breyer concur) affirmed the Federal Circuit’s ruling that permits new evidence in an appeal to a district court under Section 145 from an adverse Patent Office ruling on a patent application.

Continue Reading Patent Alert: Supreme Court rules district court hearing appeal from PTO may consider new evidence and make de novo fact finding (Kappos v. Hyatt)

Today, April 16, 2012, the Federal Circuit announced that the upcoming May 17 shift to electronic filing will make MANDATORY the electronic filing of ALL case documents for cases opened or reinstated March 1 or later.  “No filing in paper by attorneys will be permitted beyond the effective date unless authorized by the court’s ECF rules.”  Also, electronic filing is not permitted before May 17.  The announcement does not provide for any transition period.  The full ECF rules, however, have not yet been released.

Continue Reading Patent Alert: Federal Circuit anounces rules for electronic filing

Today, Mon., Apr. 16, 2012, in Eurand v. Mylan, No. 2011-1399, the Federal Circuit (Newman, O’Malley and Reyna) reversed a bench trial judgment that pharmaceutical patents would have been obvious because the district court improperly first found obviousness and then looked to secondary indicia to rebut that finding, which led to hindsight selection of secondary indicia to support the district court’s obviousness “hunch.”   The Court ruled that there is no burden-shifting when litigating obviousness – all evidence must be considered before assessing whether the patent challenger met its burden to prove obviousness by clear and convincing evidence.

Continue Reading Patent Alert: Federal Circuit rules no burden-shifting in obviousness determination (Eurand v. Mylan)

Yesterday, Mon., Apr. 9, 2012, in Aventis v. Hospira, No. 2011-1018, the Federal Circuit (Linn, Dyk, and Prost) applied the Therasense inequitable conduct standard to affirm a district court’s ruling that two patent were unenforceable based on withheld prior art.  This may be the first Federal Circuit decision to affirm inequitable conduct under the stricter Therasense standard.

Continue Reading Patent Alert: Federal Circuit applies strict Therasense test, yet affirms patents unenforceable for inequitable conduct (Aventis v. Hospira)