A 2-1 panel of the Federal Circuit yesterday upheld summary judgment of non-infringement as to several patents relating to orthodontic appliances.  But the court reversed as to several claims in another patent, holding that they didn’t encompass the same limitations in the patents.  Ormco Corp v. Align Technology, Inc., Nos. 06-1240 & 06-1274 (Fed. Cir. Aug. 24, 2007).

The majority also concluded that the district court properly granted summary judgment on an infringement counterclaim under the "obviousness" doctrine.  But it did so — for at least the fourth time — without acknowleding that the Supreme Court’s recent decision in KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007), may have changed the Federal Circuit’s test for obviousness.  The panel instead upheld summary judgment under the law of the case doctrine, ruling that its decision in a previous appeal sealed the patent’s fate as invalid.

The third panel member voted to reverse and remand because she believed that the district court lacked a sufficient record to construe the patent claims.

Barry Barnett

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