CAFC redefines the singular phrase “a patient” as a plural patient population

Ryan Chirnomas | November 18, 2014

Braintree Laboratories, Inc. v. Novel Laboratories, Inc.

April 22, 2014

Panel: Dyk, Prost Moore. Majority opinion by Prost. Concurrence by Dyk. Dissent by Moore.

Summary

In this ANDA litigation, the claims recited a composition for purgation of the colon of “a patient”. The majority imported the preamble phrase of “a patient” into the claim, and also interpreted this as not a single patient, but rather a “patient population”. Judge Moore dissented on this point. Additionally, Judge Dyk dissented on the grounds that the majority based its analysis on an accused infringing product different from the subject of the ANDA application, contrary to Hatch-Waxman rules.


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HARVARD/DUPONT’S CANCER MOUSE PATENT NIXED BY PARENT PATENT’S TERMINAL DISCLAIMER

Michael Caridi | November 11, 2014

President and Fellows of Harvard v. Lee

October 29, 2014

Panel:  Lourie, Moore and O’Malley.  Opinion by Moore

Summary

Harvard/DuPont appealed the Virginia Eastern District’s Summary Judgment grant of the USPTO’s finding of their cancer mouse patent (USP 5,925,803) expired due to a terminal disclaimer filed in the parent patent disclaiming term for any future patents.  Harvard/DuPont argued that the terminal disclaimer was not properly entered because the requisite fee was not paid and therefore ineffective.  The Federal Circuit affirmed the USPTO’s finding on the basis that the ruling was not arbitrary, capricious, an abuse of discretion, or contrary to law under the APA standard.


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NEGOTIATION IN THE U.S. IS NOT SALE OR OFFER FOR SALE WITHIN THE U.S. UNDER §271(a) WHEN SUBSTANTIAL SALES ACTIVITIES OCCUR OUTSIDE THE U.S.

Sadao Kinashi | November 11, 2014

Halo Electronics, Inc. v. Pulse Electronics, Inc. (Precedential Opinion)

October 22, 2014

Panel:   Lourie, O’Malley, and Hughes.  Opinion by Lourie

Summary

Halo Electronics (“Halo”) owns U.S. Patent No.5,656,985 and other patents of electronic packages. Halo sued Pulse Electronics (“Pulse”) for patent infringement. Pulse manufactures, sells and delivers electronic packages only outside the United States [for the purpose of the summary judgment]. All purchase orders were received at Pulse’s sales offices abroad.  However, Pulse negotiated with Cisco in the United States regarding the price for Cisco’s foreign contract manufacturers.  The district court granted summary judgment of no direct infringement as to the products that Pulse manufactured, shipped, and delivered outside the United States.

CAFC held that the district court did not err in granting summary judgment of no direct infringement because those products were neither sold nor offered for sale by defendant within the United States.

Note)   Some other issues are involved in the case, but this report focuses only on the appeal of the summary judgment.

Halo社は、電子回路パッケージに関する米国特許5,656,985号その他の特許権者である。Haro社はPulse社を特許侵害で訴えた。Pulse社はその殆どの製品を米国外で製造、販売、配送を行っていた。注文も米国外のPulseの販売事務所で受けていた。

しかし、Pulse社は、米国のCisco社と価格の交渉をしていた。それは、米国外のCisco社の契約メーカーへの販売価格に関するものであった。地裁は、Pulse社が米国外で製造、販売、配送を行っていた製品に関して、米国内での販売又は販売の申し出はないとして、非侵害のサマリ・ジャジメントを下した。

CAFCは、製品の米国内での販売又は販売の申し出はないとして、地裁のサマリ・ジャジメントは誤りではないとして維持した。


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Laches: a viable defense against patent infringement, but for how long?

Le-Nhung McLeland | October 16, 2014

SCA Hygiene Products Aktiebolag v. First Quality Products, LLC

Summary:

SCA owns U.S. Patent No. 6,375,646 (the ‘646 patent) for adult incontinence products.

October 31, 2003:  SCA sent a warning letter to First Quality, stating that SCA believes First Quality’s pants-type diapers infringe the ‘646 patent, and asking First Quality to either explain why the products do not infringe, or give assurance that First Quality will stop making and selling the products if First Quality believes the products to infringe the patent.

November 21, 2003:  First Quality responded by letter, stating that prior art U.S. Patent No. 5,415,649 (the ‘649 prior art patent) invalidates the ‘646 patent.

July 7, 2004:  SCA filed a request for ex parte reexamination of the ‘646 patent over the ‘649 prior art patent, but did not notify First Quality about the reexamination.

March 27, 2007:  The PTO confirmed the patentability of all the original claims of the ‘646 patent and also granted new claims added during the reexamination.

August 2, 2010:  SCA filed suit against First Quality for infringement of the ‘646 patent (six years and nine month after sending the warning letter, and more than three years after the conclusion of the reexamination.)  First Quality counterclaimed for declaratory judgment of non-infringement and invalidity. After the district court’s claim construction order, First Quality moved for partial summary judgment of non-infringement, and summary judgment for laches and equitable estoppel.  The district court granted summary judgment for laches and equitable estoppel, and dismissed the remaining motion as moot.  SCA appealed.

The conclusion about laches or equitable estoppel is “committed to the sound discretion of the trial judge.”  Therefore, the standard of review of those conclusions by the CAFC is “abuse of discretion” by the trial judge.  Since the underlying elements of laches and equitable estoppel are questions of fact, the CAFC reviews those findings of fact for “clear error.”  However, when summary judgment has been granted, the CAFC reviews the factual elements de novo to determine whether any “genuine issues of material fact remain.”


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