News & Analysis as of

Prior Art

Electronic Return Receipt Patent Dispute Dubbed “Exceptional Case” After Summary Judgment Award

In the long-standing patent dispute between Sophos and RPost, Judge Casper recently issued the oft-sought but rarely received award of attorneys’ fees, after finding that the case was “exceptional.” The suit began in 2013,...more

Seeing a Forest, Not Just Trees: Core Wireless v. LG

by Fenwick & West LLP on

Do you remember obviousness before KSR v. Teleflex? To invalidate, the rule went, one must find an express rationale for combining references (a teaching, suggestion or motivation). ...more

Making Amendments to Range Limitations in Patent Claims

by Workman Nydegger on

A patent claim that includes a numerical range may be rejected based on prior art that discloses the range. For example, prior art is considered to anticipate a range if it discloses (1) “a specific example … which is within...more

In re: Hodges

by Knobbe Martens on

Federal Circuit Summaries - Before Lourie, O’Malley, and Wallach. Appeal from the Patent Trial and Appeal Board. Summary: The PTAB’s finding that an element in a prior art reference is “similar to” a claim limitation,...more

Unsupported Assertions: Expert’s Persuasive Authority Suffers Without Directly Engaging Claim Limitations

by Jones Day on

An expert asserting that a patent claim reciting different features than the prior art is nonetheless “equivalent” to the prior art must address and account for the recited limitations head-on, or otherwise lose persuasive...more

Collateral Estoppel at the Federal Circuit for Inter Partes Review Proceedings

by Foley & Lardner LLP on

In Maxlinear, Inc. v. CF CRESPE, LLC, slip op. 2017-1039, the Federal Circuit remanded to the Patent Trial and Appeal Board (“Board”) an inter partes review (“IPR”) proceeding to evaluate the patentability of certain...more

Board’s Obvious Analysis Improperly Relied Upon Hindsight

In Polaris Industries, Inc. v. Arctic Cat, Inc., [2016-1807, 2016-2280] (February 9, 2018), the Federal Circuit affirmed in part, vacated in part, and remanded the PTAB’s determination in an IPR that claims of U.S. Patent No....more

Not So Common Sense? Reliance on Common Sense to Establish Obviousness

by Jones Day on

In KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007), the Supreme Court stated that “common sense” can be considered in reaching a conclusion that a claimed invention is obvious. Since then, both litigants and patent...more

Fresh From the Bench: Latest Federal Circuit Court Cases

Berkheimer v. HP Inc., Appeal No. 2017-1437 (Fed. Cir. Feb. 8, 2018) - In Berkheimer v. HP Inc., the Federal Circuit reviewed the District Court’s summary judgment finding that certain claims of a patent were invalid as...more

Polaris Industries, Inc. v. Arctic Cat, Inc.

by Knobbe Martens on

Federal Circuit Summaries - Before Lourie, O’Malley, and Hughes. Appeal from the Patent Trial and Appeal Board. Summary: Evaluation of “teaching away” requires consideration of whether a reference “criticize[s],...more

No Rehearing Because of Hindsight Declaring

The Patent Trial and Appeal Board (PTAB) denied a petitioner’s request for rehearing of its decision declining institution of inter partes review of a patent owned by Bose Corporation (“Patent Owner.”) The PTAB upheld its...more

Design Patent pto litigation statistics (through JANUARY 15, 2018)

The statistics below reveal the current trends on proceeding breakdowns, institution rates, and outcomes of design patent PTO litigation. No new design patent petitions have been filed since April 2017, and only one Board...more

Elbit Systems Of America, LLC v. Thales Visionix, Inc.

by Knobbe Martens on

Federal Circuit Summaries - Before Moore, Wallach, and Stoll. Appeal from the Patent Trial and Appeal Board. Summary: The PTAB is entitled to weigh the credibility of expert witnesses, and attorney argument cannot be...more

The PTAB Chats Designs: And Now, for Something Completely Different

by Jones Day on

On February 1, the PTAB held its first “Boardside Chat” of 2018, which featured three judges discussing appeals and AIA trial proceedings for design patents. Not only are such proceedings less common for design patents than...more

Incorporation by Reference (May Have) Saved the Day

In Paice LLC v. Ford Motor Company, [2017-1387, 2017-1388, 2017-1390, 2017-1457, 2017-1458, 2017-1406] (February 1, 2018), the Federal Circuit affirmed in part, reversed in part, and remanded Final Written decisions of the...more

Fresh From the Bench: Latest Circuit Federal Court Cases

Paice LLC, The Abell Foundation, Inc., v. Ford Motor Company (Fed. Cir. Feb. 1, 2018) - In Paice LLC, The Abell Foundation, Inc. v. Ford Motor Company, the Federal Circuit vacated the Patent Trial and Appeal Board’s...more

Federal Circuit Review - January 2018

by Knobbe Martens on

Where Parties Raise an Actual Dispute Regarding Claim Scope, the Court Must Resolve It In Nobelbiz, Inc. v. Global Connect, L.L.C., Appeal Nos. 2016-1104, 2016-1105, the Federal Circuit held that where parties raise an actual...more

Spotlight on Upcoming Oral Arguments – February 2018

In this appeal, the Federal Circuit has been asked to decide whether the district court abused its discretion in denying Adobe’s request for attorney’s fees under 35 U.S.C. § 285. Blue Spike argues that the district court...more

PTAB’s Use of Non-Analogous Art Forces Federal Circuit to Partially Reverse Invalidity Finding

On Tuesday, the Federal Circuit partially reversed a decision by the Patent Trial and Appeal Board that invalidated a number of claims in a Smith & Nephew, Inc. patent during inter partes reexamination. While many of Smith &...more

Mattress Wars: Casper’s Inequitable Conduct Counterclaim Against Serta Remains

On January 25, 2018, United States District Judge Alvin K. Hellerstein (S.D.N.Y.) denied plaintiff Serta Simmons Bedding, LLC’s (“Serta”) motion to dismiss defendant Casper Sleep Inc.’s (“Casper”) counterclaim and affirmative...more

Federal Circuit Emphasizes Need For Reasonable Expectation Of Success

by Foley & Lardner LLP on

In Genzyme Corp. v. Dr. Reddy’s Labs. Ltd., the Federal Circuit affirmed the district court decision upholding Genzyme’s Orange Book listed patent for the cancer drug Mozobil® against an obviousness challenge, because the...more

PTAB Denies Request to Submit Supplemental Information on Skill Level of POSITA

by Jones Day on

In a recent decision, the PTAB denied a petitioner’s request for authorization to file a motion to submit supplemental information directed to the level of ordinary skill in the art. Ooma, Inc. v. Deep Green Wireless LLC,...more

No Amount of Prior Art Obviates Inquiry of Secondary Considerations of Non-Obviousness

by McDermott Will & Emery on

In a short opinion, the US Court of Appeals for the Federal Circuit affirmed an obviousness conclusion, explaining that a court must consider secondary indicia of non-obviousness even in the face of voluminous prior art...more

At The Bench: Patent Law 2017 Takeaways

Viability of Diagnostic Method Claims - Problem: It has become increasingly difficult to fend off validity challenges when asserting diagnostic method claims. Claims directed to methods of determining risk or disease...more

To Be Anticipatory, Reference Must Disclose All Claim Elements Arranged as in Claim

by McDermott Will & Emery on

The US Court of Appeals for the Federal Circuit affirmed a decision that a patent challenger at the Patent Trial and Appeal Board (PTAB) must prove invalidity by a preponderance of evidence and must establish anticipation...more

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