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Posts by stevehansen

Federal Circuit Decision Concerning “Means-Plus-Function” Claiming

When drafting patent claims for a device, it is often desirable to describe the device based on how it works instead of how it is structured.  Describing a device based on how it works is often referred to as “functional claiming.”  Claims that make use of functional claiming are frequently broader in scope than those…

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Active Inducement of Infringement: A Good Faith Belief in Invalidity is Not a Defense

On May 26, 2015, the U.S. Supreme Court issued its opinion in Commil USA, LLC v. Cisco Systems, Inc., (Case No. 13-896, May 26, 2015). A copy of the slip opinion may be found here.  Active Inducement of Infringement: A Good Faith Belief in Invalidity is Not a Defense  U.S. Patent Law recognizes both direct…

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Federal Circuit Clarifies “Divided Infringement” Rules

Following a remand from the U.S. Supreme Court last June, on May 13, 2015 the Court of Appeals for the Federal Circuit issued another opinion in Akamai Technologies, Inc. et al. v. Limelight Networks, Inc.(Fed. Cir., Slip Opinion Case No. 2009-1372, May 13, 2015).  This time, the Federal circuit considered the circumstances under which a method…

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Federal Circuit Clarifies Entire Market Value Rule

Determining patent infringement damages is complicated and often borders on the metaphysical.  Under U.S. law, a patent holder is entitled to damages adequate to compensate for the infringement, but in no event less than a “reasonable royalty.”  In some cases, patent holders can establish damages through lost profits.  However, when that is not possible or…

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Heading Off Obviousness Rejections

Sometimes the best defense is a good offense. Clients often assume that they are entitled to a patent because no single piece of prior art shows all of their invention.  In that case the invention may be novel. However, it does not mean that it is non-obvious.  To qualify for a U.S. patent, an invention…

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District Court Claim Construction Factual Findings Reviewable for “Clear Error”

The claims of a U.S. Patent define the scope of the patent holder’s right to exclude.  In its 1996 Markman decision, the U.S. Supreme Court held that disputes over the meaning of claim terms are an issue of law to be decided by a judge, not by a jury.  A substantial percentage of patent verdicts are appealed…

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Software Patents Continue to Take a Beating in 2014

This has not been a good year for software patents in the United States. Since the Supreme Court issued its decision in June in Alice Corp. v. CLS Bank, 134 S.Ct. 2347 (2014), the Patent Office has been aggressively rejecting software patent applications and the courts have been invalidating issued software patents for lack of…

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Pitfalls in Policing Your Patent Rights

Patent holders are not obligated to police infringement or pursue infringers in order to keep their patents in force.  However, failing to address known acts of infringement can, in some cases, provide infringers with a defense called “laches” that can limit the amount of recoverable damages in an infringement lawsuit.  In addition, patent holders need…

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Procedural Mechanisms for Invalidating Patent Claims Due to Indefiniteness

One of the defenses available to an accused infringer is that the asserted patent claims are invalid for indefiniteness.  The Patent Statute requires that the claims of a patent “particularly point[] out and distinctly claim[] the subject matter which the applicant regards as his invention.”  35 U.S.C. § 112 (b) (formerly 35 U.S.C. § 112,…

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Invalidating Patent Claims For Failing to Include Required Aspects of an Invention

In last month’s blog, we discussed the Federal Circuit’s decision in X2Y Attenuators, LLC. V. International Trade Commission, a case which demonstrated how limiting descriptions of an invention in a patent specification can be used to restrict the scope of otherwise facially broad claims.  This month, in ScriptPro, LLC v. Innovation Associates, Inc.,the Federal Circuit…

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