KenSalen : CAFC Alert

“Insufficiently Final” Court Judgments Subject to USPTO Reexamination Decision

Ken Salen | July 10, 2013

Fresenius USA v. Baxter Int’l.

July 2, 2013

Panel:  Newman, Dyk, Prost.  Opinion by Dyk.  Dissent by Newman.


The CAFC vacated an infringement judgment and an award of damages because of a later finding of invalidity by the Patent Office in a reexamination proceeding. The CAFC held that because (1) the USPTO canceled the asserted claims while (2) the infringement suit remains pending before the CAFC, Baxter no longer has a cause of action.

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Inconsistent Term Usage in Specification and Lack of Claim Term Definitions Does Not Lead to Disaster for Patentee…This Time

Ken Salen | January 16, 2013

Presidio Components, Inc. v. American Technical Ceramics Corp.

December 19, 2012

Panel:  Rader, Plager and Wallach.  Opinion by Rader.


The Federal Circuit affirmed the district court’s finding that substantial evidence supported the jury’s verdict that ATC’s capacitors infringed the asserted claims of the ‘356 patent. However, questions with regard to the definiteness of the specification and claim terms that could have changed the result are identified.

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Attempting to Rely on Claim Preambles is Still a Bad Idea

Ken Salen | August 1, 2012

In re Taylor (nonprecedential)

June 14, 2012

Panel:  Lourie, Dyk, Wallach.  Opinion by Lourie.


Taylor appealed from a decision of the Board of Patent Appeals and Interferences (BPAI) affirming the rejections of all pending claims of its U.S. Patent Application No. 11/429,507 as anticipated and obvious.

On appeal, the CAFC affirmed that the BPAI correctly construed the pending claims of the ’507 application and did not err in finding those claims unpatentable in view of the cited prior art. Of note, the BPAI and the CAFC held that Taylor could not rely on its preamble to limit its claim over the cited references.

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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.


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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