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Of the almost ten Hatch-Waxman based cases that made their way to the Federal Circuit in 2013, 50% of those cases resulted in the claims either being affirmed as invalid or a determination that those patents were invalid on appeal. In these circumstances, where there is a range disclosed in the prior art, and the claimed invention falls within that range, the burden of production falls upon the patentee to come forward with evidence that (1) the prior art taught away from the claimed invention; (2) there were new and unexpected results relative to the prior art; or (3) there are other pertinent secondary considerations.
Two other cases resulted in non-infringement findings and one was a mixed result. The Federal Circuit remanded the case to the District Court to allow the Court to evaluate the merits in light of the correct claim construction and affirmed the District Court’s obviousness determination.
The case was discussed in an earlier Patently-O Posting titled Structuring a Privateering Contract (2012).
Robert Stoll, who recently retired as Commissioner for Patents at the USPTO, is slated to open the program with a PTO keynote address. Nemec (Skadden, Arps, Slate, Meagher & Flom LLP) and John M. court system is well established, but recent patent law cases have challenged this hierarchy with the power of government agency – the USPTO to be exact. Scott explains the patent law issue: Patent reexamination is often initiated in parallel with an ongoing infringement litigation.
Commissioner Stoll is expected to report the latest developments regarding the PTO’s on-going implementation of the America Invents Act and other critical PTO developments. White (Berenato & White; Director of Patent Professional Development, Practising Law Institute) will navigate attendees through 6 exciting plenary sessions that discuss the practice impacts of recent Supreme Court and Federal Circuit decisions, AIA changes, current critical patent issues from the corporate counsel perspective, views from the District Court bench, the never-ending PTO changes and for good measure, an hour of legal ethics credit! Scott Mc Keown, Partner at Oblon, Spivak, Practice Center Contributor and author of Patents Post Grant Blog, recently wrote two articles concerning the USPTO’s reexamination process and how its parallel nature to patent infringement cases resulted in conflict that’s occurred with the U. Court of Appeals of the Federal Circuit (CAFC) as well as with the U. In the case of a parallel inter partes proceeding (IPX), the first of the proceedings to conclude (litigation or IPX) controls the outcome of the other by operation of statutory estoppel. Suffolk’s patent application was filed back in 1996, but it turns out that the invention was described in a 1995 Use Net newsgroup post posted by a college student. If a reference is sufficiently disseminated at time of original publication then the ability to later locate the reference is irrelevant.