Patent Law

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By Dale Campbell

Last week, the United States Supreme Court heard eBay’s appeal of the Federal Circuit Court of Appeals’ decision issuing a permanent injunction against eBay, which prevents eBay from utilizing the technology involved with its “Buy It Now” purchasing method. The case involves an action brought by MercExchange against eBay alleging that eBay’s “Buy It Now” purchasing method infringes upon three patents held by MercExchange. “Buy It Now” allows an individual to purchase an auction item at a fixed price, rather than through the bidding process. At trial, eBay was found to have infringed two of the three patents alleged in the complaint and ordered to pay monetary damages. The trial court refused to impose a permanent injunction prohibiting eBay’s use of the “Buy It Now” technology. Both parties appealed to the Federal Circuit
Continue Reading A Patent Holder’s Right to Exclude Others – Will the Supreme Court Reverse 100 Years of Precedence?

By Audrey Millemann

This month, the United States Supreme Court has held that owning a patent is not equivalent to having a monopoly. It may be, but it is not necessarily so. In Illinois Tool Works Inc. v. Independent Ink, Inc., 2006 WL 468729 (March 1, 2006), the Court reversed its long-standing rule (in place since 1947) that a tying arrangement involving a patented product is per se illegal. This is a significant victory for patent owners.
Continue Reading United States Supreme Court: Patent Owners Are Not (Necessarily) Monopolists

By Pamela Winston Bertani

Suppose your client discovers that a patent application pending before the United States Patent and Trademark Office discloses information or includes claims that infringe your client’s existing United States patent – and your client wants to know what can be done to challenge the pending application without actually filing a patent infringement suit. Your answer should be that there are several options for challenging a patent or patent application before the Patent and Trademark Office, instead of in court. This article briefly reviews the alternatives your client should be aware of.
Continue Reading Challenging Patents – Short of Litigation

By Scott Cameron

In baseball, “taking one for the team” means you lean out over the plate and let the pitch hit you, earning a free trip to first base. To a guy out with his friends, it has an entirely different meaning. For Canadian company Research In Motion, the maker of the BlackBerry wireless email device, it means writing a $612.5 million check for a lifetime, perpetual license to use an invalid patent. That’s a hard fastball to have to “take for the team.”
Continue Reading BlackBerries Are In Season Again – And It’s A $612.5 Million Season

Competent advice of counsel is strong evidence to ward off a finding of willfulness. However, incompetent advice of counsel may be worse than no advice at all. Knorr-Bremse stands for the proposition that an accused’s failure to obtain an infringement opinion or its exercise of the attorney-client privilege concerning that opinion may not be used as an adverse inference of willful infringement. But an incompetent infringement opinion, if the privilege is waived, may be offered by the plaintiff as prima facie evidence as willful disregard of the patent holder’s rights…
Continue Reading Incompetent Legal Advice: Evidence of Willful Infringement