Patent Happenings, May 2008

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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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