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…
Read MoreInfringement
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…
Read MoreLast month, the Federal Circuit Court of Appeals issued an opinion that could have a significant impact on patent owners who seek International Trade Commission (ITC) exclusion orders to block the importation of goods used to infringe their patents. In a 2-1 decision in Suprema, Inc. v. ITC, the Court held that the ITC cannot…
Read MoreOn July 2, 2013 the Federal Circuit Court of Appeals issued an opinion in Fresenius USA v. Baxter International, Inc., Case. No. 2012-1334, 1335 (Fed. Cir. July 2, 2013), which enhances the ability of patent infringement defendants to invalidate patents via the ex parte reexamination process. The ex parte reexamination process allows anyone to ask…
Read MorePatent holders can prove infringement by showing that each element of a claim is literally present in an accused infringer’s product or that those elements which are missing have an “equivalent.” The latter approach is permitted under what is known as the “doctrine of “equivalents.” There is something of a conundrum in the way the…
Read MoreWhen patent holders want to let someone know that they are infringing their patent(s), they often send what is known as a “cease and desist” letter. The letter usually mentions the patent number and the product the patent holder thinks is infringing and demands that you stop making, using, selling, or importing it, as…
Read MoreIt is well-established that patent holders may not simply file patent infringement lawsuits in order to determine if a company may be infringing their patents. As interpreted by the Court of Appeals for the Federal Circuit, Rule 11 of the Federal Rules of Civil Procedure requires that patent holders do the following prior to filing…
Read MoreOn August 31, 2012, a sharply divided en banc Federal Circuit Court of Appeals issued its opinion in Akami Technologies v. Limelight Networks. The case is significant in that it rewrites the rules for finding a party liable for inducing patent infringement. The case could have significant impact in the enforcement of business method and…
Read MoreWhen I talk to lawyers who do not practice patent law, they often speak of the complexity of patent cases in terms of the scientific or technological issues involved. What many of them fail to understand is that quite apart from the technology, the law itself is very complex. Lawyers and judges often have difficulty…
Read MoreForcing patent holders to commit to their positions as early as possible is critical for successfully defending a patent case. There is often tension between the patent holder’s infringement case and its validity case, and it is important to force and pin down the patent holder’s positions as early as possible to improve your chances…
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