Under the AIA, a False Marking Action Can Be Brought by a Potential Competitor who Suffers a Competitive Injury

Bernadette McGann | May 20, 2015

Sukumar v. Nautilus, Inc.

May 4, 2015

Before: Prost, Newman and Reyna.  Opinion by Prost.


The CAFC herein affirms the District Court grant of Nautilus’ motion for summary judgment to dismiss Sukumar’s false marking suit.  The District Court held that Sukumar had not suffered a competitive injury and thus, lacked standing to enforce 35 U.S.C. 292.  The CAFC herein determines who has standing to bring a false marking action.

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PTO Need Not Terminate Inter Partes Re-exam Even After Parties Have Settled on Validity.

Sadao Kinashi | May 18, 2015

Automated Merchandising Sys. v. Lee

April 10, 2015

Before: Prost, Taranto, Fogel; Opinion by Taranto


Inter partes re-exams were initiated during the litigation.  Parties settled the litigation, and the court issued consent judgment.  Patentee requested PTO to terminate the re-exams, but PTO refused to terminate alleging that there was no “decision” by the court.  Patentee sued PTO under Administrative Procedure Act (APA).  District court granted summary judgment in favor of PTO.  CAFC affirmed the summary judgment.

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Federal Circuit Reasonably Certain Biosig’s Patent Not Indefinite

John Kong | April 29, 2015

Biosig Instruments v. Nautilus

April 27, 2015

Before: Newman, Schall, and Wallach.  Opinion by Wallach.


On remand from the Supreme Court, the Federal Circuit applies the “new” indefiniteness test announced by the Supreme Court in “Nautilus II” and concludes that the disputed term “spaced relationship” in Biosig’s patent claims is not indefinite.  After a two year hiatus from the first time the Federal Circuit decided this case in April 2013 in “Nautilus I,” the Federal Circuit comes to the same conclusion as it did under the previous indefiniteness test.

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Claimed Narrow Range Must Be Shown To Be Critical To Operability Of Invention To Avoid Anticipation By Broader Range

Le-Nhung McLeland | April 27, 2015

Ineos USA LLC v. Berry Plastics Corp.

April 16, 2015

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

Background:  Appeal from U.S. District Court for Southern District of Texas which granted summary judgment that patent asserted by Ineos is invalid for anticipation.


U.S. Patent No. 6,846,863 (the ‘863 patent) claims a polyethylene-based composition which can be used to form shaped products, in particular bottle caps.  The composition contains a lubricant to optimize the cap’s slip properties.  The ‘863 patent asserts that the composition does not impart a bad odor and flavor to food products stored in contact with the composition, which is an improvement over prior art polyethylene composition containing a lubricant.

Claim 1 is the only independent claim:

1.  Composition comprising at least

[1] 94.5% by weight of a polyethylene with a standard density of more than 940 kg/m3,

[2] 0.05 to 0.5% by weight of at least one saturated fatty acid amide represented by CH3(CH2)nCONH2 in which n ranges from 6 to 28[,]

[3] 0 to 0.15% by weight of a subsidiary lubricant selected from fatty acids, fatty acid esters, fatty acid salts, mono-unsaturated fatty acid amides, polyols containing at least 4 carbon atoms, mono or poly-alcohol monoethers, glycerol esters, paraffins, polysiloxanes, fluoropolymers and mixtures thereof, and

[4] 0 to 5% by weight of one or more additives selected from antioxidants, antacids, UV stabilizers, colorants and antistatic agents.  (emphasis added)

The CAFC opinion inserted the bracketed numbers into the claims to identify the components of the composition.  In addition to the base polyethylene (component 1), the only required component is the specifically defined saturated fatty acid amide (component 2, which serves as a primary lubricant.)

Claim 1 recites a range of 0.05 to 0.5% by weight for the lubricant.  Berry asserts that claim 1 is anticipated by U.S. Patent No. 5,948,846 (the ‘846 reference patent) which discloses a polyethylene based composition containing stearamide, a compound falling within the group of saturated fatty ester amide (2) recited in claim 1 of the ‘863 patent.  The broad range of 0.1 to 5 parts by weight disclosed in the ‘846 reference patent for component (2) overlaps with the relatively narrow range recited in claim 1 of the asserted patent, as shown below (not to scale):




The ‘846 reference patent also describes the amount of the lubricant as being “at least 0.1 part by weight per 100 parts of polyolefin, in particular of at least 0.2 parts by weight, quantities of at least 0.4 parts by weight being the most common ones”.

The district court found claim 1 and the dependent asserted claims to be anticipated by the ‘846 reference patent, and granted summary judgment for Berry Plastics.

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