By: Audrey A. Millemann

The law of willful patent infringement has changed.  After the Federal Circuit’s decision in Bard Peripheral Vascular, Inc. v. W.L. Gore & Associates, Inc., 682 F.3d 1003 (Fed. Cir. 2012), it will now be more difficult for patent owners to prove willful infringement and recover enhanced drawings.

In Bard, the plaintiff, Bard Peripheral, owned a patent covering blood vessel grafting technology.  Bard filed suit for patent infringement and the case was tried to a jury in the district court for the District of Arizona.  The jury found that Gore had infringed Bard’s patent and that the infringement was willful, awarding Bard $185 million in compensatory damages and $185 million in enhanced damages for willfulness.Continue Reading Willful Patent Infringement Now Harder to Prove

By: Audrey A. Millemann

The Supreme Court, in a very thoroughly written decision, Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (March 20, 2012), has reiterated that laws of nature are not patentable.

The patent laws define patentable subject matter as “any new and useful process, machine, manufacture, or composition of matter.”  35 U.S.C. §101.  In a long line of cases going back to the mid-1800s, however, the Supreme Court has upheld an exception to patentable subject matter for “laws of nature, natural phenomena, and abstract ideas.”  Thus, while pretty much anything is patent-eligible, laws of nature (along with mental processes and abstract ideas) are not.

Continue Reading Supreme Court: Einstein’s Discovery (and Other Laws of Nature) Not Patentable

By: Audrey A. Millemann

In Marine Polymer Technologies, Inc. v. HemCon, Inc., 2012 U.S. App. LEXIS 5567 (Fed. Cir., March 15, 2012), the Federal Circuit Court of Appeals reversed an earlier decision by a panel of the court that had created uncertainty as to the rights of an infringer resulting from patent reexamination proceedings.  The court held in a sharply split en banc decision that intervening rights arise in a patent reexamination only when the claims have been amended or are new.  The decision overturned the panel’s September 2011 decision that held intervening rights arise even if the patent owner does not amend the claims, but merely even makes an argument that changes the meaning of the claims.  The decision also reinstated a $29.4 million jury verdict for the plaintiff.

Marine Polymer owned a patent that covered a composition that was used in biomedical and pharmaceutical applications, including the treatment of wounds.  The claims contained the limitation that the compositions were “biocompatible” (i.e., that the compositions were not highly reactive with living cells.  Continue Reading Intervening Rights Resolved by Federal Circuit