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.
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.
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.
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.
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.