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These articles are for informational purposes, and are not intended to constitute legal advice. These articles are only the opinion of the authors and are not attributable to Muncy, Geissler, Olds & Lowe, P.C., or the firm’s clients.
VOTER VERIFIED, INC. v. PREMIER ELECTION SOLUTIONS, INC. (Fed. Cir. 2012) (P) – Internet postings as “printed publications” & humans under § 112, ¶ 6
While a fact-specific analysis, an internet posting on a website probably qualifies as prior art if “an interested researcher [could have found it] using that website’s own search functions and applying reasonable diligence.” In the age of Google, this is probably not...
IN RE BAXTER INTERNATIONAL, INC. (Fed. Cir. 2012) (P) – Judicial proceedings on reexamination
A final judgment of the court, after trial and appeal, does not preclude subsequent PTO review of the same patent on reexamination. Background / Facts: This opinion is a brief order denying Baxter’s combined petition for panel rehearing and rehearing en banc for In re...
FLO HEALTHCARE SOLUTIONS, LLC. v. PATENT AND TRADEMARK OFFICE (Fed. Cir. 2012) (P) – Invoking 112, ¶ 6
Using a functional modifier attached to elements such as a “mechanism” or an equivalent term commonly used to designate structure can be sufficient to avoid a means-plus-function construction. Further, the Federal Circuit specifically noted the distinction between a...
TECHNOLOGY PATENTS LLC. v. T-MOBILE (UK) LTD. (Fed. Cir. 2012) (P) – Claim construction: “user”
While the patentee’s infringement theory here was tenuous at best, the main takeaway is clear and commonsensical. The term “user” generally refers to a person or party, not an electronic device. If at all possible (and it may not have been for the underlying subject...
APPLE INC. v. SAMSUNG ELECTRONICS CO., LTD. (Fed. Cir. 2012) (P) – Claim construction: each of a “plurality”
Take care to provide unambiguous antecedent basis in your claims when referring to “each” of a plurality of elements. Although departing from standard claim drafting practice (and common sense), the court found enough wiggle room here to hold that “each heuristic...
ENERGY TRANSPORTATION GROUP, INC. v. WILLIAM DEMENT HOLDING A/S (Fed. Cir. 2012) (P) – After-arising technology
This a good example of an application where the patentee did not recite more in the claims than he had to. While possibly the only way he could have imagined doing the programming back at the time of the invention was to use a large, external computer, the nature of...
SANDISK CORP. v. KINGSTON TECHNOLOGY CO., INC. (Fed. Cir. 2012) (P) – “A” or “an” & disclosure-dedication rule
(1) The general rule is that the use of the indefinite articles “a” or “an” in open-ended claims containing the transitional phrase “comprising” means “one or more,” unless “the language of the claims themselves, the specification, or the prosecution history...
BELKIN INTERNATIONAL, INC. v. KAPPOS (Fed. Cir. 2012) (P) – Inter partes reexamination
The proper course of action to seek reconsideration of prior art considered not to raise a substantial new question of patentability for reexamination is to petition the Director to review that determination pursuant to 37 C.F.C. § 1.927, even if reexamination is...
IN RE ABBOTT DIABETES CARE INC. (Fed. Cir. 2012) (P) – Broadest reasonable interpretation
It’s good to see the CAFC address the growing gap between claim construction during litigation and claim interpretation during prosecution, the inconsistencies of which can only hurt patentees. The CAFC firmly rejected the PTO’s rigid, mechanical approach in trying to...
POZEN INC. v. PAR PHARMACEUTICAL, INC. (Fed. Cir. 2012) (P) – Doctrine of equivalents
“[A]bsent more limiting language in the intrinsic record” the doctrine of equivalents can be applied to find infringement where the accused value is insubstantially different from the claimed value, even for fuzzy qualitative terms like “substantially all” that...