Validity : CAFC Alert

Presumption of validity attaches to all issued patents, even incorrectly issued patents

Andrew Melick | July 5, 2012

Sciele Pharma Inc. v. Lupin Ltd.

July 2, 2012

Panel: Lourie, Prost, Moore.  Opinion by Moore

Summary

Shionogi (new name for Sciele Pharma) obtained US Patent No. 6,866,866 (“the ‘866 patent”) which included broader claims that were intended to be cancelled in favor of narrower claims in response to a rejection.  Shionogi brought suit against Lupin for infringement of the ‘866 patent including claims that were to be cancelled.  Lupin began selling the alleged infringing product and Shionogi moved for a preliminary injunction.  The District Court granted Shionogi’s request for preliminary injunction and Lupin appealed.  On appeal, the CAFC stated that even though the ‘866 patent issued with the incorrect claims, the ‘866 patent nonetheless had a presumption of validity and that the clear and convincing evidentiary standard applied for invalidating the patent.  The CAFC also stated that there is not a heightened standard just because references were considered by the PTO.  With the proper clear and convincing evidentiary standard applied to the ‘866 patent, the CAFC stated that Lupin has raised a substantial question of invalidity, and thus, the preliminary injunction is vacated.


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CAFC defines “common sense” and warns against impermissible hindsight

Ryan Chirnomas | June 6, 2012

Mintz and Jif-Pak Manufacturing v. Dietz & Watson and Package Concepts and Materials

May 30, 2012

Rader, Newman, Dyk.  Opinion by Rader.

Summary

This case highlights the important point that obviousness cannot be established by vague and unsubstantiated reliance on “common sense.”  Rather, Judge Rader defines the term “common sense” as “knowledge so basic that it certainly lies within the skill set of an ordinary artisan.”  The CAFC also warns against hindsight due to defining the problem to be solved based on the solution found by the inventors.   Furthermore, the CAFC reminds us that when references from a secondary technical field are used in a rejection, the person of ordinary skill in the art is not a person familiar merely with this secondary technical field, but rather a person familiar with at least the primary technical field.


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Lack of demonstrated criticality of narrowly claimed range fails to overcome anticipation rejection based on broadly disclosed prior art range

Ken Salen | February 22, 2012

ClearValue, Inc. v. Pearl River Polymers, Inc.

February 17, 2012

Panel:  Prost, Schall and Moore.  Opinion by Moore.

Summary

ClearValue accused Pearl River of infringing U.S. Patent No. 6,120,690 (’690 patent).  The jury found that the ’690 patent was valid and indirectly infringed.  The 5th Circuit District court denied Pearl River’s subsequent motions for judgment as a matter of law (JMOL) of invalidity and noninfringement of the ‘690 patent. Pearl River appealed the district court’s denial of its motions for JMOL.  Holding that the jury’s verdict was not supported by substantial evidence, the CAFC reversed the denial of the motion for JMOL of invalidity (i.e., the CAFC held the patent-in-suit invalid), concluding that a prior art limitation of “less than 150 ppm” anticipates a claimed range of “less than or equal to 50” unless criticality of the narrowly claimed range is demonstrated.


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