Patent Happenings, February 2008

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Newsletter on recent developments in patent law during February 2008, including: 1. En banc hearing on patentability of business methods and processes with only abstract or mental steps; 2. Paying royalties under protest did not support licensee estoppel to preclude declaratory judgment validity challenge; 3. Courts should consider convenience factors when deciding if the first-to-file rule applies; 4. No actual case or controversy triggered by providing notice letter of the issuance of a patent without any comment on infringement; 5. Attorney fees and penalty assessed for presenting misleading arguments to the jury that sought to avoid adjudicated claim construction; 6. Twelve-year delay in seeking a certificate of correction did not support intervening rights, prosecution laches, patent misuse, waiver, or implied license, but could support traditional laches and equitable estoppel; 7. Ordinary function performed by claim term used to construe structural requirements; 8. Failing to enable alternative embodiment led to summary judgment of invalidity; 9. Two Federal Circuit cases on amendment-based estoppel; 10. Implicit motivation to combine raised a substantial question on validity to preclude preliminary injunction; 11. Offering “production units” precludes experimental-use to avoid an on-sale bar; and 12. Witnesses may be cross examined on whether they worked with a jury consultant.

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