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Patent Trial and Appeal Board - Multi-Petition Challenges of a Patent

Background – Multiple Petitions - Multiple Petition Filings in PTAB Trials (IPR/PGR/CBM) - •The statutes for IPR, PGR and CBM do not provide many limits on filing of petitions –Numerous patents have been...more

A Second Look at the Innovation Act Obviousness Type Double Patenting Statute

When the Innovation Act first was introduced, I was skeptical of the proposed obviousness-type double patenting statute. I did not understand why some thought that patents that fall under the First-Inventor-To-File provisions...more

Comments on USPTO’s Interim Patent Eligibility Guidance (Part 3)

Interim Guidance: Summaries of Patent Eligibility Cases - The Interim Guidance provides succinct summaries of various Supreme Court and Federal Circuit decisions. As explained by the Office at the January 21, 2015...more

District Court Denies Motion to Lift Stay Pending Inter Partes Review Even Where Plaintiff Agreed to Not Pursue Claims That Were...

Barco filed a patent infringement action in September 2011 against Defendants Eizo Nanao Corporation and Eizo Nanao Technologies, Inc. ("Eizo"), alleging that Eizo infringed various claims in U.S. Patent No. 7,639,849 (the...more

Pfizer Inc. v. Mylan Pharms. Inc.

Case Name: Pfizer Inc. v. Mylan Pharms. Inc., Civ. No. 10-528-GMS, 2014 U.S. Dist. LEXIS 150283 (D. Del. Oct. 22, 2014) (Sleet, J.) (When a POSA would have to undertake significant guesswork to vary the parameters of...more

The Iron Law of Unintended Consequences - (with apologies to Robert Michels)

It is a certainty that no matter what action is taken (by an individual, a group, or especially a legislative body) that there will be unintended consequences. It is also true that those unintended consequences, like the...more

Limitations on New Arguments and Legal Authority Presented at Oral Hearing - Intri-Plex Technologies Inc. v. Saint-Gobain...

The U. S. Patent and Trademark Office Patent Trial and Appeal Board (PTAB or Board) provided further guidance as to what new matter may properly be raised during oral argument, explaining that parties may not present new...more

Federal Court Decision Demonstrates Ongoing Challenges Faced by Plaintiffs in Data Breach Litigation

On February 11, 2015, the U.S. District Court for the Southern District of Texas dismissed a class action complaint against the St. Joseph Health System arising out of a data security breach that occurred after hackers...more

Supreme Court Announces Standard of Review for Factual Issues Underlying Patent Claim Construction: Implications Beyond Patent Law

The United States Supreme Court, clarifying the proper standard of review of factual findings arising during a court’s construction of patent claims, held that such “evidentiary underpinnings” should be reviewed for clear...more

Software Claim Is Held Unpatentable; Disputed Terms Are Not Indefinite

Following a 9-day jury trial, a mistrial was declared due to a hung jury. The court granted JMOL with respect to invalidity of certain claims. New trial dates were set for remaining claims, and the court addresses here...more

Court Precludes Expert’s Lost Profits Testimony

Andrews, J. Defendants’ motion to preclude plaintiff’s expert’s testimony is granted with respect to lost profits and denied with respect to reasonable royalty. The court took testimony and held oral argument on January 30,...more

Court Denies Request For Documents

Defendant seeks documents on the basis of the crime-fraud exception relating to abandonment and revival of a patent application which eventually issued. ...more

The Medicines Co. v. Mylan Inc.

Case Name: The Medicines Co. v. Mylan Inc., Civ. No. 1:11-cv-1285, 2014 U.S. Dist. LEXIS 152433 (N.D. Ill. Oct. 27, 2014) (St. Eve, J.) (Generic drug manufacturer was liable for patent infringement as a matter of law when the...more

Caribbean Cruise Line Obtains Dismissal of Putative TCPA Class Action

On March 25, 2014, Brian Jackson received a text message on his cellular phone, allegedly making an offer for cruise ticks on behalf of Caribbean Cruise Line (“CCL”). Jackson filed suit against AdSource Marketing Ltd....more

Proving Inherent Anticipation – Make or Break Your Case With Expert Testimony

Anticipation is a basic concept in patent law. On its face the concept is simple—if a single prior art reference teaches every element of a claim in the proper context, then the claim is not patentable, i.e., it is...more

Court Cites Objects of Invention in Claim Construction

Pacing Technologies, LLC v. Garmin International, Inc. is one of those Federal Circuit decisions that may send patent practitioners running to their files to double-check the phrasing used in their patent applications. Not...more

Takeda Pharms. USA, Inc. v. West-Ward Pharm. Corp.,

Case Name: Takeda Pharms. USA, Inc. v. West-Ward Pharm. Corp., Civ. No. 14-1268-SLR, 2014 U.S. Dist. LEXIS 155981 (D. Del. Nov. 4, 2014) (Robinson, J.) (Given statements made in the accused product’s proposed labeling,...more

Divided Federal Circuit Panel Upholds Patent Office’s “Broadest Reasonable Interpretation” Standard for Construing Claims in...

In a 2-1 decision in In re Cuozzo Speed Technologies LLC, No. 14-1301 (Fed. Cir. Feb. 4, 2015), the Federal Circuit recently held that the Patent Office may apply the “broadest reasonable interpretation” standard to construe...more

Supplementing Information - Post-Institution Pacific Market International, LLC v. Ignite USA, LLC

Addressing a motion to submit supplemental information after institution, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB or Board) granted the motion, finding that the information—a supplemental...more

Cubist Pharms., Inc. v. Hospira, Inc.

Case Name: Cubist Pharms., Inc. v. Hospira, Inc., No. 12-367-GMS, 2014 U.S. Dist. LEXIS 169679 (D. Del. Dec. 8, 2014) (Sleet, J.) (Valid certificate of correction results in finding of infringement and validity; remaining...more

Declarant Must Be Made Available for Deposition in the United States - Square, Inc. v. REM Holdings 3, LLC

Addressing the location of a deposition of patent owner’s declarant, the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal Board (PTAB or Board) concluded that, absent an agreement between the parties to...more

Final Decision in NuVasive’s Inter Partes Review of Warsaw Orthopedic Patent

The Patent Trial and Appeals Board (the “Board”) recently issued Final Written Decisions disposing of two inter partes reviews that NuVasive filed in mid-2013 regarding U.S. patent number 8,444,696 (the ’696 Patent). The ’696...more

Spineology Sues Wright Medical Technology

Spineology, Inc. sued Wright Medical Technology, Inc. (Wright Medical) in the United States District Court for the District of Minnesota . Spineology’s complaint alleges that Wright Medical’s X-REAM percutaneous expandable...more

District Court Action Dismissed Without Prejudice Does Not Bar Filing of IPR Petition - Nautique Boat Co., Inc. v. Malibu Boats,...

Addressing whether a district court action dismissed without prejudice bars a filing of an inter partes review (IPR) petition under 35 U.S.C. § 315(a)(1), the U.S. Patent and Trademark Office’s (PTO) Patent Trial and Appeal...more

Comments on USPTO’s Interim Patent Eligibility Guidance (Part 2)

The Preemption Requirement - Preemption is the core concern that drives the Court’s “exclusionary principle”. The Supreme Court in Alice stated...more

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