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Patent Litigation Tip – Counterclaim for Declaratory Judgement

Although patent infringement cases are trending more towards sanctioning frivolous complaints, these remedies typically are only available after discovery on the merits or, in some instances, an enlarged scope of satellite litigation. If a responsive pleading to the complaint does not lodge a counterclaim for declaratory relief on at least the issue of invalidity, sufficient evidentiary bases for such sanctions may be lacking.

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When Do Patent Rights Begin?

The right to exclude others from making, selling, offering to sell, using, or importing, however, becomes an actionable remedy only when a patent issues. Upon issuance of U.S. Letters Patent, the United States has legislated (35 U.S.C. §281 et. seq.) the patent property rights for the patent owner to enforce such remedies exists, and at no time before.

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New Tool for Patent On-Sale Bar Issues

A frequent issue facing many software, pharmaceutical, and biotechnology companies are circumstances under which a product produced pursuant to the claims of a product-by-process patent is “on sale” under 35 U.S.C. § 102(b). This is important because, if “on sale” more than one year before the filing of an application for a patent on the governing claims, any issued patent is invalid and the right to exclude others from making, using, and selling the resulting product is lost.

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Trade Secret Primer – Something New, Some Other Things Old

Given last week’s 410-2 House vote for the Defend Trade Secrets Act (DTSA), the new federal based, private civil cause of action has now passed both the House and Senate and is headed to President Obama for his expected signature. Before the DTSA becomes law, it is an appropriate time to review existing various state trade secret rights which will also be available to potential parties who might qualify for the civil remedies these laws provide.

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PATENT ELIGIBILITY TOOL-KIT

Generally, a patent may be obtained for any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, subject to an important implicit exception: laws of nature, natural phenomena, and abstract ideas are not patentable, as they are the basic tools of scientific and technological work. Although a law of nature or an abstract idea by itself is not patentable, the practical application of these concepts may be deserving of patent protection.

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Prior Court Litigation of a Patent May Not Avoid Venue Transfer

To hold that any prior suit involving the same patent can override a compelling showing of transfer would be inconsistent with the policies underlying venue transfer statutes where the proper administration of justice may be to transfer to the far more convenient venue even when the trial court has some familiarity with a matter from prior litigation.

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Patent Claim Language – Capability or Method?

Establishing patent infringement in software cases depends upon whether an accused device is capable of operating in the any of the patented inventive modes based on what is already present in its underlying firmware. If a user must modify or otherwise alter the...

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Is a TRO Possible for Your Infringement Case?

During the incumbent pre-filing analysis in an infringement case, patent litigation clients often inquire about the prejudgment remedy of a temporary restraining order (TRO). Generally, a patentee seeking preliminary injunctive relief must establish: 1) likelihood of...

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