first-to-file : CAFC Alert

Non-enabling disclosure by first inventor of low defect single crystal was sufficient to defeat under 102(g) patent claim of subsequent inventor

Le-Nhung McLeland | December 12, 2012

The Fox Group, Inc. v. Cree, Inc.

November 28, 2012

Panel:  Newman, O’Malley, and Wallach.  Opinion by Wallach.  Dissent by O’Malley.

Summary:

 (1)   Summary judgment in favor of defendant was affirmed with respect to asserted claims because (a) defendant was first to reduce to practice the claimed SiC single crystal, and (2) plaintiff did not produce sufficient evidence raising genuine issue of material fact to show that defendant suppressed or concealed the invention.

 (2)   Holding that unasserted claims were invalid was vacated.
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CAFC Allows Willful Infringer to Continue Infringements for an “Ongoing Royalty” Due to “the Public’s Interest to Allow Competition in the Medical Device Arena”

Stephen Parker | February 16, 2012

Bard Peripheral Vascular, Inc., et al. v. W.L. Gore & Associates, Inc.

February 10, 2012

Panel: Gajarsa, Linn and NewmanOpinion by Gajarsa.  Dissent by Newman.

Summary

This decision concludes a forty-year-long story that began in 1973 between two cooperating individuals that independently filed patent applications for vascular grafts in 1974.  Those applications went to interference in 1983 and have been the subject of ongoing litigation since, concluding now in the current CAFC decision.  The Arizona district court from which the present case was appealed expressed that this was “the most complicated case the district court has [ever] presided over.”  In this case, the Gore inventor was the first to both 1) conceive of the invention and 2) file a patent application in 1974 (i.e., filing 6 months prior to the Bard inventor), but Gore lost in an interference before the Patent Office.  Now, Gore is found to be willfully infringing the patent that was awarded to Bard, and is subjected to doubled damages (i.e., totaling $371 million) and attorney’s fees (i.e., totaling $19 million).  However, despite these findings, the CAFC allows Gore to continue infringing, declining a permanent injunction and awarding reasonable royalties in the amount of between 12.5% to 20% for future infringements due to the weight of “the public interest to allow competition in the medical device arena.”


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