IP Update - Vol. 14, No. 11 - November 2011


In This Issue:


Intra-Circuit Split Continues as Federal Circuit Denies Rehearing En Banc; Post-eBay Demise of the Presumption of Irreparable Harm for Awarding Injunctive Relief; Post Therasense: Inequitable Conduct Really Is a Higher Standard; Claim Construct Tension Persists at Federal Court; Algorithm Written in Prose Provides Sufficient Structure for a Means-Plus Function Claim Term; Licensees Entitled to Seek Declaratory Judgment Despite a License; Inter Partes Estoppel Provision Applies Only After All Appeals Have Been Exhausted; Trade Secret or Patent, Not Both; “One,” But Not the One and Only; Parties’ Contract Trumps Patent Act to Deny Prejudgment Interest; Proof that the Claimed Invention Worked Is Required for Reduction to Practice; Patent Protection of Section 365(n) of the U.S. Bankruptcy Code Extended to U.S. Licensees of Foreign Debtors; UK Supreme Court Steps Into line with Europe, but Rejects U.S. Approach; FTC Staff Report Summarizes Recent Pay-for-Delay Settlements; and California Appeals Court Rejects Antitrust Challenge to “Pay-for-Delay” Settlement of Patent Infringement Suit


Broad Covenant Not to Sue Negates Jurisdiction over Counterclaims for Non-Infringement and Cancellation of Trademark.

Excerpt from Intra-Circuit Split Continues as Federal Circuit Denies Rehearing En Banc:

In denying the plaintiffs’ petition for rehearing en banc, the Court of Appeals for the Federal Circuit left open an intra circuit split as to the proper standard in assessing the likelihood of success factor when deciding preliminary injunction motions in patent infringement cases. Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, LLC, Case No. 10 1382 (Fed. Cir., Sept. 29, 2011) (order denying rehearing en banc) (Newman, J., joined by O’Malley, J., and Reyna, J., dissenting).

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Written by:


McDermott Will & Emery on:

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