Intellectual Property - 2010-2011 Winter Bulletin


In this issue: The Supreme Court Heeds Calls to Consider Lowering the Standard of Proof for Patent Validity Challenges; Federal Circuit Rejects Attempt to Narrow Standing Requirements for False Patent Marking Claims; Even When Trade Secret Misappropriation Leads to Financial Loss, a Reasonable Royalty May Apply; Timely Action Required to Oust Cybersquatters; Law Firm Sued for Sham Reexaminations; and First Circuit to Address Limits on Copyright Damages.

Excerpt from "The Supreme Court Heeds...":

On November 29, 2010, the Supreme Court granted certiorari in Microsoft Corporation v. i4i Limited Partnership, 598 F.3d 831 (Fed. Cir. 2010), cert. granted, 79 U.S.L.W. 3326 (U.S. Nov. 29, 2010) (No. 10-290), a case that could prove to be a patent litigation game-changer. The Court was asked by Microsoft (and a small army of amici) to strike the Federal Circuit’s long-held rule that all patent invalidity defenses, even those based on prior art never considered by the USPTO, must be proven by clear and convincing evidence. The granting of certiorari suggests that the Supreme Court is seriously considering reducing the standard of proof for invalidity defenses to a lower “preponderance of the evidence” standard in at least some circumstances; the likely repercussions of the ultimate ruling have broader implications...

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