Le-Nhung McLeland : CAFC Alert

Confusion dogging best mode requirement in its waning days: Is intentional concealment required?

Le-Nhung McLeland | June 5, 2013

Ateliers de la Haute-Garonne, and F2C2 Systems SAS v. Broetje Automation USA Inc. and Broetje Automation GMBH

May 21, 2013

Panel:  Newman, Prost, and Reyna.  Opinion by Newman. Dissent by Prost.


An embodiment with three grooves is disclosed in the specification of the patents-in-suit as a preferred embodiment of an apparatus for dispensing rivets.  In his deposition one of the two inventors stated that an odd number of grooves was required to prevent a rivet from rotating on itself in the device as a result of the rivet stem going inside one of the grooves.  The district court found that the specification did not “state that an odd number of grooves is better than an even number”, and concluded that the patents “effectively conceal the best mode.”  Summary judgment is granted.  On appeal the CAFC finds no violation of the best mode requirement. Questions:  Is the three-groove embodiment the best mode, or is the belief that an odd number of grooves is required the best mode?  Has the best mode been concealed, and does the concealment have to be intentional for the patent to be invalidated?
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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.


 (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 pointers on proving lack of “substantial non-infringing uses” in pleading contributory infringement

Le-Nhung McLeland | June 20, 2012

Toshiba Corporation v. Imation Corp.

Jun 11, 2012

Panel:  Dyk, Schall, and Moore.  Opinion by Moore.  Dissent by Dyk.


(1)   Grant of summary judgment of non-infringement as to contributory infringement of ‘751 patent affirmed because plaintiff did not meet burden of proof that there was a lack of substantial non-infringing uses.

(2)   Grant of summary judgment of non-infringement as to induced infringement of ‘751 patent vacated because district court erred as a matter of law in holding that the existence of a substantial non-infringing use precludes a finding of induced infringement.

(3)   Grant of summary judgment of non-infringement of ‘966 patent vacated because it was based on erroneous claim construction.

(4)   No clear “take away” on claim construction from discourse between majority and dissent.

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