Intellectual property litigation relies heavily upon the use of expert testimony. The Ninth Circuit Court of Appeals recently analyzed the intersection of Federal Rules of Evidence, Rule 702 and the ruling in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) (“Daubert”) concerning the admissibility of expert testimony and Federal Rules of Civil Procedure, Rule 56 for summary judgment. Stillwell v. Smith & Nephew, Inc., 482 F.3d 1187 (9th Cir. 2007). Admissibility of expert testimony must be carefully evaluated for reliability and helpfulness, but that is different than the analysis for whether a triable issue of fact is established.
No Surprise: After KSR, Federal Circuit Finds Obviousness
The first case the Federal Circuit Court of Appeals has decided under obviousness since the United States Supreme Court’s decision on April 30, 2007 in KSR International Co. v. Teleflex, Inc., 1727 S.Ct. 127 (2007) came just nine days later: LeapFrog Enterprises, Inc. v. Fisher-Price, Inc. (2007 WL 1345333; May 9, 2007).
United States patent no. 5,813,861, owned by LeapFrog, discloses a talking electronic toy or learning device called LeapPad that makes sounds in response to the user selecting a letter. The toy helps teach children phonics. Fisher-Price makes a toy called PowerTouch that performs some of the same functions as LeapFrog’s toy. The PowerTouch device includes a processor in a device that holds a special type of book used with the device, such that when the child selects a word on the page, the device audibly pronounces the word, then pronounces each phoneme of the word, and then pronounces the word again.Continue Reading No Surprise: After KSR, Federal Circuit Finds Obviousness
Everything Old is New Again – – Not
In its long awaited decision in KSR International Co. v. Teleflex, Inc., 127 S. Ct. 1727 (April 30, 2007), the United States Supreme Court has completely changed the patent landscape. The Court held that the test used by the Federal Circuit Court of Appeals to determine obviousness under 35 U.S.C. §103 is incorrect. Because of KSR, it will now be harder to get patent claims allowed and easier to invalidate issued patents.
In KSR, Teleflex sued its competitor KSR, in the Eastern District of Michigan for patent infringement of Teleflex’s patent for an automobile pedal assembly. The invention combined an electronic sensor with an automobile pedal so that the pedal position could be communicated to a computer controlling the automobile’s throttle. KSR contended that the relevant claims of Teleflex’s patent were obvious under section 103. Continue Reading Everything Old is New Again – – Not
Patent Infringement 101
The number of patent infringement cases filed in the United States has increased dramatically over the last ten years or so, and we can expect to see that trend continue. One reason is that the number of patents issued is increasing, and many of those patents, particularly business methods patents, are viewed with suspicion by the high-tech industry. Another reason is that businesses are investing more time and money into intellectual property assets and the loss of those assets could cost the business greatly.
What is patent infringement? Anyone who makes, uses, offers to sell, or sells in the United States, or imports into the United States, a patented invention, without authority from the patent owner, infringes a utility patent. The prerequisite is an issued (not pending or expired) U. S. patent. No intent is required. The patent is infringed if any of the above acts are committed in the United States. An infringer cannot, for example, avoid liability by moving a manufacturing operation outside the United States where the product is sold within the United States. Likewise, a manufacturer of a product made in the United States infringes the patent even if the product is only sold outside the United States. Continue Reading Patent Infringement 101
U.S. Courts Should Not Decide Foreign Patent Infringement
United States courts should not adjudicate rights under foreign patents, according to the Federal Circuit Court of Appeals. In an interesting case, the court was divided over whether a district court could decide infringement of a foreign patent. Voda v. Cordis Corporation, 476 F.3d 887 (February 1, 2007).
The plaintiff, Voda, owned several U.S. and foreign patents covering guiding catheters used in interventional cardiology. The plaintiff sued defendant, Cordis Corporation, a U.S. entity, in the Western District of Oklahoma for infringement of three U.S. patents. Cordis denied infringement and alleged invalidity.Continue Reading U.S. Courts Should Not Decide Foreign Patent Infringement