The Supreme Court’s Recent Lowering of the Evidentiary Standard for Awarding Legal Fees in the Octane Case Turns-Up the Heat on Aggressive Patentees

Stephen Parker | April 24, 2015

Oplus Technologies, Ltd. v. Vizio, Inc.

April 10, 2015

Before: Prost, Moore, and O’Malley. Opinion by Moore.


Despite the district court’s determination that non-practicing-entity-plaintiff Oplus Technologies, Ltd.’s counsel, Niro, Haller & Niro, had engaged in “exceptional” litigation misconduct, the district court determined that attorney fees should not be awarded to defendants.  Upon appeal by defendant Vizio, Inc. of the denial of attorney fees, the Federal Circuit vacated and remanded the decision back to the district court to force the district court to reconsider its decision not to award attorney fees in light of the district court’s own fact findings showing a high extent of harassing, unprofessional and vexatious misconduct of plaintiff’s counsel and in view of the Supreme Court’s subsequent changing of the evidentiary standard for awarding legal fees in the Octane case to a preponderance of the evidence standard from the former clear and convincing evidence standard.

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Claim terms narrowed by prosecution record

Andrew Melick | April 23, 2015

Vasudevan Software, Inc., v. MicroStrategy, Inc.

April 3, 2015

Before: Chen, Linn and Hughes. Opinion by Linn.


The claims of the patents at issue recite a system that accesses “disparate … databases.” The CAFC stated that while this term means “incompatible,” the plain meaning of the term and the specification do not explain how extensive that incompatibility must be. The district court analyzed statements in the prosecution history regarding this term and the arguments made for distinguishing the prior art to construe the term. The CAFC affirmed the district court’s claim construction. The CAFC also reversed the district court’s summary judgment of invalidity regarding written description and enablement, and remanded to the district court.

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The act of contemplation then creates the thing created (Isaac D’Israeli).

Adele Critchley | April 21, 2015

Kennametal, Inc., v. Ingersoll Cutting Tool Company.

March 25, 2015

Before: Newman and Linn. Opinion by Linn.


The CAFC affirmed the decision of the Patent Trial and Appeal Board (the “Board”) in an inter partes reexamination of U.S. Patent No. 7,244,519 (the ‘519 Patent) in which the Board (i) entered a new anticipation ground of rejection asserted by Ingersoll over US. Patent No. 6,554,548 (Grab); and (ii) affirmed the Examiner’s obviousness rejection.

The CAFC held that “contemplation” of a method in a prior art reference is sufficient disclosure for a rejection under §102. The CAFC further held that a finite number of solutions were present in Grab for the specific claimed combination, and that the motivation to select the specific combination was not undermined by the known problem of cobalt capping.

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Claim term “at least one component of [a unit]” excludes the entire unit – expert testimony cannot override intrinsic evidence

Nicolas Seckel | April 17, 2015

Enzo Biochem Inc. v. Applera Corp. (Precedential)

March 16, 2015

Before: Prost, Newman and Linn. Opinion by Prost, Dissent by Newman.


In this case, grammatical construction and invention “purpose” beat expert testimony and claim differentiation, leading to reversal of the District Court’s claim interpretation.

One might have thought that the Federal Circuit would make a point of carefully applying the different standards of review when a District Court’s claim construction relied in part on extrinsic evidence (“clear error” for findings based on extrinsic evidence, instead of “de novo” review for intrinsic evidence, see Teva Pharm. USA, Inc. v. Sandoz, Inc. (Jan. 20, 2015)).

This decision suggests a different trend, toward minimizing the importance of extrinsic evidence in claim interpretation, which allows the Federal Circuit to maintain its customary high level of scrutiny.

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