Patent Happenings, May 2008


Developments in U.S. patent law for the month of May 2008. Topics include: 1) Conditioning stay pending reexamination on accused infringer stipulating it would not use prior art cited in the reexamination; 2) Judge Rader speaks out against perceived lessening of required level of intent in inequitable conduct determinations; 3) Declaratory judgment claims for developing products;

Limited breadth of disclosure in specification limits claim scope; 4) Specification did not trump unambiguous claim language to save claim from drafting error; 5) Canceled and unasserted claims must be considered in determining whether a proposed construction reads out a preferred embodiment; 6) Arguments in prosecution history effectively limited scope of structural equivalents for a means-plus-function limitation; 7) Claim preclusion did not bar a second infringement suit even though the product accused in second suit could have been adjudicated in the first suit; 8) Claims added during reexamination solely to avoid a prior adverse claim construction ruling were improper under § 305; 9) Employee’s knowledge of infringing activity to start laches clock is not imputable to patentee if employee does not have duties regarding licensing and enforcing the asserted patent; 10) Settlement agreement with manufacturer allowed customer to practice later issuing patent despite provisions allegedly to the contrary; and 11) Use of new counsel on appeal did not excuse wavier for not first raising argument to district court.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Robert Matthews, Jr., Matthews Patent-Law Consulting | Attorney Advertising

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