Patent Happenings, November 2008


Newsletter presents concise summaries of important developments in U.S. patent law occurring during the month of November, 2008. Developments include:

1.) Nonpatent Supreme Court case may cast further doubt on applying a presumption of irreparable harm for preliminary injunctions in patent matters;

2.) Federal Circuit will not consider Appointment Clause challenges if not first presented to PTO;

3.) Summary judgment of obviousness vacated due to fact issue on whether asserted prior art was part of the field of invention a PHOSITA would search and whether the art taught away from using the asserted prior art;

4.) Accused infringer may recoup royalties paid to a patentee under a sunset provision in an injunction if the injunction is later ruled to have been wrongfully issued;

5.) Issue preclusion precluded patentee litigating entitlement to lost profits even though different patents were at issue;

6.) Accused infringer could not split/sever asserted patent claims into a second suit so that it could seek attorneys fees only as to the severed claims;

7.) Parties agreeing to a royalty and escrow payment plan before accused infringer filed a declaratory judgment action negated a right to a jury trial for the declaratory judgment claims;

8.) FTC to hold hearings on emerging business models of intellectual property ownership and how the current remedies law impacts those models; and

9.) PTO to charge registered attorneys and agents an annual fee to practice before the agency.

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Robert Matthews, Jr.
Matthews Patent-Law Consulting

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