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What should you do when you become aware of the existence of a third party patent that claims subject matter possibly related to your company’s product? If you take no action to timely investigate the patent, and the product is subsequently held to infringe the patent at trial, the company may be at risk of a court finding that the infringement was willful and assessing enhanced damages. To mitigate this risk, “the law of willful infringement … requires prudent, ethical, legal and commercial actions” on which basis “a prudent person would have had sound reason to believe that the patent was not infringed or was invalid or unenforceable, and would be so held if litigated.” SIR International, Inc. v. Advanced Technology Laboratories, Inc., 127 F.3d 1462 (Fed. Cir. 1997).
By Jonathan Moskin
NantKwest v Iancu
The Federal Circuit sitting en banc reversed its own prior ruling and held that “all expenses of the proceeding” does not include attorneys’ fees.
By Lawrence H. Aaronson and James L. Korenchan
Advances in UI Design Can Provide Key Competitive Differentiation and Advantage, Which Makes Protecting Them Critically Important from a Business Perspective
Advances in UI design can also provide key competitive differentiation and advantage, helping to distinguish otherwise commoditized products and services such as computers, Web services, wearables, and appliances. Given this advantage, protecting advances in UI design can also be critically important from a business perspective.
By Jeffrey S. Ginsberg and Abhishek Bapna
Federal Circuit Remands for Further Proceedings to Determine Whether RPX’s Petitions for IPR Were Time Barred For Failing to Identify Its Client As a ‘Real Party in Interest’
Federal Circuit Holds that Common Law Tribal Sovereign Immunity Cannot Shield a Patent in IPR Proceedings,br> Federal Circuit Holds that an Unsuccessful IPR Petitioner Must Show ‘Concrete Plans’ for Future Potentially-Infringing Activity in Order to Demonstrate Article III Standing to Appeal PTAB’s IPR Decision
By Elizabeth B. Hagan
The U.S. Supreme Court recently held that a patent owner may recover lost foreign profits for infringement under 35 U.S.C. §271(f)(2). The holding in WesternGeco LLC v. ION Geophysical rejects the Federal Circuit’s categorical exclusion of lost profits damages for foreign sales, and expands the potential for increased damages from domestic competitors operating in foreign markets.