Patent Law Practice Center

Top 5 Patent Blog Posts of the Week

Today we continue our weekly installment highlighting the best of the patent blogosphere from the past week. If there are any patent blogs you think should be highlighted by our Top 5, please comment on this post and we’ll check them out.

1) CAFC Blog: Revisiting Therasense, CAFC Finds That An Inventor’s Subjective Belief That Submission of Documents Was Unnecessary May Not be Sufficient to Avoid a Showing Of Intent to Deceive – This post discusses Aventis Pharma S.A. and Sanofi-Aventis U.S. LLC v. Hospira Inc. and Apotex Inc. and shares how the CAFC  found that the patents were invalid over withheld references, and unenforceable for inequitable conduct.

2) IP Watchdog: Beware Twitter’s New Patent Agreement Scheme – This post highlights and critiques Twitter’s announcement that  later this year it will implement what they are calling the “Innovators Patent Agreement,” which they claim will ensure that patents are only used for defensive purposes.

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Patentee’s Arguments in Reexamination Create Intervening Rights Erasing $29.4 Million Verdict

Scott Daniels, Partner at Westerman, Hattori, Daniels & Adrian and Practice Center Contributor, sent in this article discussing Tuesday’s CAFC decision in the Marine Polymer Techs. v. HemCon case. In a decision that seems to encourage reexamination, the Court held that “intervening rights” apply to unamended claims based on statements made during reexamination.  Daniels discusses the history of the case and highlights the key points of the CAFC decision.

The CAFC panel decision [Tuesday] in Marine Polymer Techs. v. HemCon will do more to popularize reexamination than all the proselytizing by all the reexamination lawyers and bloggers ever could.  The Court held that an argument made by the patentee traversing a rejection in reexamination constituted a disclaimer of patented subject matter; this disclaimer triggered absolute intervening rights for the accused infringer under 35 U.S.C. §§ 252 and 307(b), thereby eliminating all damages for the period before the issuance of the reexamination certificate.  The Court also suggested that the accused infringer might also be protected by equitable intervening rights for the period after issuance of the reexamination certificate and sent the case back to the trial court for further fact-finding. (more…)