February 2010

Of late, the C.A.F.C. has indicated that it considers many claims of inequitable conduct meritless and, as a result, that this defense to claims of patent infringement is “disfavored.” Well, maybe so, but apparently the word hasn’t gotten around to all of the district court judges, one of whom recently found three (3) patents unenforceable for this reason. (CCC Group Inc. v. Martin Engineering Co.)

An extremely important case is presently pending in the U.S. District Court for the Southern District of New York. It raises the question whether isolated human genes comprise patentable subject matter under the patent law. (Association for Molecular Pathology et al. v. U.S. Patent and Trademark Office et al.)

People are always offering free advice. Frequently, it’s worth about what you paid for it. Recently, a partner in a well-respected law firm offered advice to recipients of letters from “Patent Trolls” inviting the recipient to license one or more patents. The advice, simply stated, was to run to the Patent Office and petition for inter partes re-examination of the subject patent(s). Good advice? Well, maybe. Even the author concedes, “there is no one-size-fits all solution.”

In theory, a trial is governed by a set of rules. In cases of alleged patent infringement, the applicable rules are the Federal Rules Of Civil Procedures (F.R.C.P.). Enforcement of the rules, which are intended to ensure a fair and civil (judicialspeak for “reasonably polite”) trial, is invested in the trial judge. Some judges are rather lax in enforcement; others are not. One of the latter is Chief District Judge Joseph F. Bataillon of the U.S.

In keeping with the current liberal – if not socialist – swing of the pendulum, two professors have published a paper, in the Columbia Science and Technology Law Review, that argues that the present U.S. patent system may not encourage innovation or promote societal wealth and, hence, may be unconstitutional. ("Patents And The Regress Of Useful Arts")

A few weeks ago, we wrote about the growing trend of clients suing their lawyers or former lawyers (What Were They Thinking?). Our blog post focused on the defenses raised by the defendants, Greenberg Traurig LLP et al., namely, that the claims raised by the client were barred by the statute of limitations.

We have just come across another one of those cases which cry out to be the subject of a blog or perhaps a TV sitcom, involving as it does Bimbo Bakeries and the secret of the special “nooks and crannies.” (Bimbo Bakeries USA v. Botticella)

Just as the affronted gunfighter of yore offered his foe the choice to “get out of town” (said with a snarl) or “meet me in the street at high noon,” so the modern, white-hatted patent owner often seeks to offer a choice to a black-hatted, scum sucking infringer, contacting the swine and offering a license before initiating suit for patent infringement. Since the Medimmune decision, it has required great care to achieve this without conferring upon the infringer standing to bring a declaratory judgment action. It was difficult, but it could be done.

Every now and then, justice prevails and an infringer (scum sucker) is found guilty of infringement. Unfortunately, it seems that even in those cases where the patentee wins, the fruits of victory are being either snatched away or diminished. (Electro-Mechanical Industries, Inc. v. Universal Support Systems LLC)

Some time ago, we wrote about the fascinating case of Shepard Fairey and the “Obama Hope” image (see Goliath Slays David). This is one of our most interesting blog entries, and we recommend it to any of our readers who might have somehow inadvertently missed it. Nevertheless, suffice it to say that Mr. Fairey sued The Associated Press, seeking a declaratory judgment that the said image did not infringe any AP copyright.