Intellectual Property

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DelayEn banc court sidesteps high court

In Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1974 (2014) (post here), the Supreme Court ruled that the defense of laches — unreasonable delay in bringing suit — does not preclude recovery of damages for copyright infringement during the usual statute of limitations period (three years under the Copyright Act). Does the same rule apply to patent cases?

The en banc Federal Circuit held last week, by the smallest of margins (6-5), that Petrella does not govern cases under patent law. Defendants may thus cite a patent holder’s delay in filing a lawsuit as a ground for reducing or barring damages within the six-year pre-suit period that patent law generally allows.
Continue Reading Laches Can Limit Patent Damages, En Banc Federal Circuit Rules

Time to InventThe shock of the new

A lot turns on who invents a thing first. Billions maybe.

Patent law requires newness. The mandate can cause patent death even in the case of almost-but-not-quite “prior art”. If the older stuff “anticipates” the new thing, it renders the invention unpatentable.

A recent decision by the Federal Circuit highlights the anticipation question. 
Continue Reading In Patent Law, Weeks Count

Patent LawA flood of cases

In the second quarter of 2015, a spate of patent cases washed into the 94 district courts around the country, but a single district drew more than half of them — a record 839 out of an all-time-high 1,656 total.

The receiver of the intellectual property bounty? The Eastern District of Texas.

The fact that a good percentage of the cases went to that district — which rambles from north and west of Dallas to north and east of Houston — will not surprise any lawyer who has handled more than a few patent infringement cases during the last decade.

But what accounts for the big spike in cases nationwide? And why did fully 50 percent go to Marshall, Tyler, Plano, Texarkana, Sherman, and Beaumont, Texas?
Continue Reading Half of All New Patent Cases Land in East Texas

Lessons LearnedA golden age of civil antitrust, from the 1960s into the 1980s, enriched the victims of cartels and monopolies but upset corporate America.  The high cost of paying treble damages claims eventually provoked a spare-no-expense approach to defense. That in turn influenced the way plaintiffs prosecuted their Sherman Act claims.

Much the same thing has…

IMG_0195Antitrust v. patent

The extraordinary risk in antitrust cases has prompted courts to erect ever-higher hurdles to them. Extending a trend that began decades before, the Supreme Court used a sprawling antitrust case — Bell Atl. Corp. v. Twombly (2007) — to toughen the test for pleading a claim. It warned about the high costs…

Light BulbAnother patent just failed the Supreme Court's airy test for unpatentable "abstract ideas".

A whiter shade of pale

Patents that define ways to make money through commerce on the Internet never have gotten much respect.

In the last year, a series of rulings by the Federal Circuit and the Supreme Court bled much of the remaining color out of the "business…

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Measuring patent damages — and excluding reexam evidence

The Federal Circuit again tightened the criteria for setting damages awards in patent infringement cases. But, in a bit of good news for infringement plaintiffs, it lent further support to the general inclination of district courts to exclude evidence of non-final results of patent reexaminations by the U.S. Patent…

Idea lightbulb

Abstract ideas

Section 101 of the Patent Act allows patents on "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof". 35 U.S.C. 101. But, the Supreme Court has held, it does not make laws of nature, natural phenomena, or abstract ideas patentable. Ass'n for Molecular Pathology…