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The Business of Patents

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...

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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...

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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...

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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...

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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...

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