Patent Litigation

Federal Circuit: District Court Abused Discretion By Attributing Inconsistent Position to Plaintiff

An overview of redesigns at the ITC, a discussion of the ITC's recent determination in Certain Audio Players and Controllers, and identifies some considerations to keep in mind when litigating redesigns at the ITC.

Federal Circuit: Applicant Admitted Prior Art Cannot Provide a "Basis" for a Ground of Unpatentability in an IPR, But Can be Cited for Other Purposes Federal Circuit: After SAS, IPR Estoppel Extends to Prior-Art Grounds That Reasonably Could Have Been Raised in the Petition

Evolusion Concepts, Inc. v. HOC Events, Inc. Novartis Pharmaceuticals Corp. v. Accord Healthcare, Inc.

Patent marking is an important step in the patent lifecycle as it is generally required to seek damages from infringers prior to the date the suit is filed. While virtual marking has somewhat reduced the overhead of marking, it suffers from the same problems all Internet-based evidence runs into in court: websites are ephemeral and have intermittent accessibility, as well as poor public logging of when information existed where, and for how long. NFTs on a digital blockchain could potentially overcome these hurdles, while still providing the benefits of virtual marking via websites.

Pair of Federal Circuit Decisions Address Standing to Appeal Adverse IPR Decision

Although several direct appeals for PTAB review or rehearing were made by parties who had received adverse outcomes at PTAB hearings after the Arthrex decision, on November 3, the first rehearing was granted by the PTO acting director.

In two recent decisions, the Federal Circuit and a Delaware district court took account of the underlying economic conditions that permit and prevent awards of lost profits, and looked at the implications of those conditions on otherwise unrelated areas of law.