It Still Ain’t Over

Submitted by patentadmin on Mon, 12/07/2009 - 22:12

A few weeks ago, we wrote about a case where a jury found in favor of the plaintiff in a patent infringement suit and, on the very next day, the USPTO decided that the defendant was actually the first to invent the subject matter of the patents and, therefore, the rights to the patents belonged not to the plaintiff, but to the defendant.

As might be expected, the unhappy plaintiff has appealed the decision of the B.P.A.I. Somewhat surprisingly, however, the appeal was not filed in the C.A.F.C. Instead, the plaintiff relied upon a little known – and less often utilized – provision of the patent law (for the anal-retentive reader it is 35 USC §146) that provides that “[a]ny party to an interference dissatisfied with the decision of the Board of Patent Appeals and Interferences … may have remedy by civil action …” The plaintiff brought suit in the Federal District Court for the District of Nebraska, claiming it was “dissatisfied with the Board Interference Judgment” and asking that it be overturned.

Given that the federal court in Nebraska has had few previous patent cases, we can’t wait to see how this comes out.

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