Patentee’s standing to sue for infringement evaporates after correction of inventorship

Nicolas Seckel | August 25, 2016

Vapor Point v. Moorhead (Precedential)

August 10, 2016

Before O’Malley, Chen, Stoll (per Curiam, O’Malley concurrence)


After NanoVapor filed patent applications on a VOC removal technology, naming only its in-house inventor, it was sued by two non-employees trying to be added as inventors through an inventorship correction action. NanoVapor countersued for patent infringement, but having tied its infringement action to the inventorship action, NanoVapor lost standing when it lost on the inventorship action.

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Arbitration is Good, but it Needs Protection

Scott Daniels | August 17, 2016

Verinata Health, Stanford & Illumina v. Ariosa & Laboratory Corp.

July 26, 2016

Before Reyna, Clevenger and Wallach.  Opinion by Reyna.


  • Plaintiff Illumina and Defendant Ariosa entered into a supply agreement which contained a compulsory arbitration clause.
  • Illumina sued Ariosa for patent infringement.
  • Ariosa counterclaimed for breach of contract and breach of good faith, asserting that the supply agreement gave it a license to Illumina’s patent.
  • Illumina moved the trial judge to order that the contract and good faith breach counterclaims go to compulsory arbitration.
  • The trial judge denied Illumina’s motion that Ariosa’s counterclaims go to arbitration.
  • The CAFC affirmed the trial judge’s denial of Illumina’s motion for arbitration.

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Another fatality attributed to 35 U.S.C. §101 abstract idea

Bill Schertler | August 5, 2016

Electric Power Group, LLC v Alstom

August 1, 2016

Before: Taranto, Bryson and Stoll.  Opinion by Taranto.


Electric Power Group sued Alstom alleging infringement of various claims of U.S. Patents Nos. 7,233,843; 8,060,259; and 8,401,710 directed to systems and methods for performing real-time performance monitoring of an electric power grid.  On Alstom’s motion for summary judgment, the district court held that Electric Power Group’s asserted patent claims fail the standard for patent eligibility under §101.  The CAFC affirmed finding the claims don’t go beyond the abstract idea of the collection, analysis, and display of available information in a particular field.

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Burden of Proof does not shift to Patent Owner upon institution of an Inter Partes Review

Andrew Melick | August 1, 2016

In Re: Magnum Oil Tools International, LTD.

July 25, 2016

Before Newman, O’Malley, and Chen. Opinion by O’Malley


McClinton Energy Group, LLC (“McClinton”) filed a petition for inter partes review (“IPR”) of U.S. Patent No. 8,079,413 (“the ‘413 patent”) owned by Magnum Oil Tools International, Ltd. (“Magnum”). McClinton based the petition on two combinations of prior art references: (1) Alpha in view of Cockrell and Kristiansen, and (2) Lehr in view of Cockrell and Kristiansen. The petition primarily focused on the combination of Alpha, Cockrell and Kristiansen, and merely “incorporated by reference” the arguments based on Alpha for the arguments based on Lehr. The IPR was instituted based only on Lehr in view of Cockrell and Kristiansen, and in a final decision, the claims were found unpatentable. The CAFC reversed the PTAB decision stating that the arguments “incorporated by reference” are not sufficient for meeting the burden of proving obviousness by a preponderance of the evidence. Conclusory statements cannot satisfy the petitioner’s burden of demonstrating obviousness, and thus the PTAB did not have sufficient evidence on which to base its legal conclusion of obviousness. The PTAB improperly shifted the burden to Magnum to disprove obviousness without requiring McClinton to prove its assertion of obviousness. The CAFC also stated that it was improper for the PTAB to rely on an unpatentability theory that was not included in the petition.

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