Just when it appears that things can't get much worse for patent applicants, the Federal Circuit surprises us with a small string of decisions, the fact to find for the benefit of patent holders.
Just one week after the Muniauction, Inc. (pdf) took the chin by having its $ 77 million jury verdict be reversed (which are changed in "you'll get a zip, nada, nothing"), the boys in the DC actually decided in favour of a patent. (pdf)?What's more, they did it by maintaining a summary judgment, the existence of an infringement. Hmmm, not have seen quite a while.
August 1 of this year they really outdid themselves by not only reversing lamps summary judgment results (pdf) disability rights of third parties, and unreasonable behaviour (with fees cast boot), but the route that the case is assigned a different judge pre-trial detention as well as. I had to pinch myself to make sure I can Filhandling dreaming. File manager – six days later they did it again (pdf) (well, almost – no conversion to a new judge this time).
Then map ordering the braked in a potential infringer's who filed an early DJ action, (2) partially maintained a jury judgment for the benefit of an individual patent left and a lower instanss summary judgment to the finding of no infringement, and no liability. It is truly amazing that in the second of these (Voda v. Cordis) actually maintained the jury has been an infringement under the doctrine of equivalents – the doctrine of equivalents of all things! (You young people who have never heard of it, just ask anyone in practice before 2002. He could even tell you about phlogiston also.)
Talk about history, was the eight Circuit at once so anti-patent they had an unbroken string of 18 or 19 decisions, each find topic patents invalid.? Finally, and without a doubt, the realization that this had not gone unnoticed by the bar, they insisted on some vague patent, probably only get one in the column "win" for a change.
While the cynical side of me says the German Circuit only doing the same here, (of course, even the toughest casinos have to let anyone winning the occasional) would like to believe, perhaps, the pendulum swings back to the benefit of patent holders again.
On a serious note is what I would really like to believe that the work of the former judges Markey, RTF and other did to provide patent law from a mysterious backwater to the forefront of the law have not been wasted.? There is no doubt in my mind that the law has moved away from protecting individual inventors in recent years, and that some on the right has an agenda in the orientation.? It is unclear whether they want to win.
This less rigorous case maintenance patent rights signals may be a real change back to the strong patents.? They are perhaps only a minor error.? Or perhaps the real error have been the first twenty years of the German Circuit existence and that we are experiencing now is simply a return of law back to what it has been all the time.? I would like to think not, but the truth is that for most of the twentieth century, patents are not worth anything. We have been through before, and it can easily happen again.? We are on the road direction?? Guess time will tell.
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