Patent Happenings, March 2008

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Summary of patent law developments in March 2008 including 1. Corresponding structure of a microprocessor having “appropriate programming” was indefinite for not disclosing the algorithm performed by the microprocessor;

2. Safe-harbor provision of § 271(e)(1) applies to ITC proceedings; 3. Protection from obviousness-type double patenting challenges afforded by § 121 does not apply to patents issuing from CIP applications; 4. Statements disavowed claim scope even though examiner may not have relied upon them; 5. Festo tangential-related exception not shown by fact that equivalent and claim limitation both perform a function not done by the prior art; 6. Federal Circuit reverses denial of JMOL for obviousness; 7. Obvious-to-try argument rejected by Federal Circuit as being an improper hindsight analysis; 8. Certificate of Correction correcting named inventorship has retroactive effect; 9. Holder of a security interest in a patent is not a necessary party to an infringement suit; 10. Statement in invalidity opposition brief that patentee would not assert challenged claim in any future litigation mooted controversy as to that claim; 11. Patent ownership may pass by operation of law such as intestate succession without a formal written assignment; 12. Court refuses to stay discovery on opinions of counsel until patentee makes a showing of an objectively high risk of infringement; and 13. Court limits fee award in view of accused infringers’ false statements to the industry regarding ownership rights in the patents. Also a brief summary of the April 1, 2008 decision from the EDVa granting summary judgment against the PTO and voiding the PTO’s proposed new rules in Tafas v. Dudas.

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