Chief Judge Rader to Speak at Patent Law Institute on All-Star Panel!

Patent law heavyweights will convene for what looks to be two very special days in New York City at PLI’s 6th Annual Patent Law Institute on February 16-17th.

 Chief Judge Randall Rader of the Federal Circuit will participate in an all-star dialogue panel between the bench and bar along with United States District Judge William Young and nationally-recognized expert practitioners Donald Dunner, Seth Waxman and Dean John Whealan of the George Washington University Law School.

Robert Stoll, who recently retired as Commissioner for Patents at the USPTO, is slated to open the program with a PTO keynote address. 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.

Co-Chairs Scott M. Alter (Faegre Baker Daniels LLP), Douglas R. Nemec (Skadden, Arps, Slate, Meagher & Flom LLP) and John M. 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! (more…)

How The Sausage Is Made

Written by Brandon Baum of Baum Legal and Practice Center Contributor.

You often hear that the key to being a patent trial lawyer is the ability to master complex technical concepts and communicate them to lay jurors. To comfortably act as a translator between the hard science of technology and the soft art of human understanding and common sense. The reality, however, is not quite so impressive.

Take, for example, this closing argument from the i4i vs. Microsoft case. What follows is the entirety of i4i’s discussion of infringement in its initial closing argument:







Microsoft v. i4i Revisited

Written by Brandon Baum , of baum legal and Practice Center Contributor.

I recently commented that the Microsoft v. i4i case did not change the law. After all, the Supreme Court simply confirmed that the statutory presumption of validity afforded patents under 35 U.S.C. 282 could only be overcome with “clear and convincing evidence” of invalidity — nothing new. However, upon a more careful reading (prompted by a Facebook post by Fordham Prof. Jeanne Fromer), I now realize I was mistaken.

In the following passage, the Supreme Court explains that a patent provides the user with a “right to use” the patented invention, and not merely the right to exclude others from using the patented invention.














That changes everything, and will make patents ever so much more valuable. By the stroke of a pen, the wealth of America’s inventors has been vastly increased. I sure hope they don’t try to “fix” this.



Upcoming Audio Briefings On Recent Supreme Court Decisions

The Supreme Court  has decided three cases this past month that could have a big effect on patent law.  To help you understand the significance of these decisions and their implications, PLI is offering three timely and topical One-Hour Audio Briefings.

1. June 24th Global-Tech v. SEB: Supreme Court Holds knowledge Requirement Satisfied by Willful Blindness for Patent Infringement:  On May 31, 2011, the U.S. Supreme Court handed down its decision in Global-Tech Appliances, Inc. v. SEB S.A. In an 8–1 decision, with Justice Alito writing for the Court, the Court concluded that induced infringement requires knowledge that the induced acts constitute patent infringement, not just knowledge that it was encouraging certain acts which just happened to infringe a patent. Examining the statutory language and tracing pre–adoption case law, the Court further concluded that a defendant’s deliberate indifference to a known risk that a patent exists would not be sufficient to demonstrate knowledge, which was the Federal Circuit’s view below, but that “willful blindness,” well–established in the criminal law context, is enough to satisfy the knowledge element. Although it announced a different standard, the Court concluded that the evidence in this case easily satisfied that standard. For such a doctrine to apply, a defendant must subjectively believe that there is a high probability that a fact exists, and must take deliberate actions to avoid learning of that fact. In dissent, Justice Kennedy argued that the Court took a step too far in concluding that willful blindness is a form of knowledge, and would have required actual knowledge.  This briefing will be conducted by Peter J. Brann, a partner in the law firm of Brann & Isaacson, whose practice focuses on intellectual property litigation, R. Ted Cruz of Morgan, Lewis & Bockius LLP and counsel of record for SEB, and William Dunnegan of Dunnegan LLC and counsel of record for Global-Tech Appliances. (more…)

Microsoft v. i4i – The Supreme Court Keeps the Clear and Convincing Standard

In the Microsoft Corp. v. i4i, the Supreme Court had to determine whether the burden of proof for parties alleging patent invalidity should be changed from a clear and convincing standard to a preponderance of the evidence standard.  Yesterday, the Court unanimously decided no!!  Garth M. Dahlen, Ph.D., Partner at Birch, Stewart, Kolasch & Birch, LLP, sent in this article discussing  the decision and possible ramifications.

Yesterday in Microsoft v. i4i __ U.S. __ (2011)(Sotomayor, J.), opinion below, i4i Ltd. v. Microsoft Corp., 589 F.3d 1246 (Fed. Cir. 2009)(Prost, J.), the Supreme Court gave a unanimous decision affirming the Federal Circuit’s interpretation of 35 U.S.C. §282 requiring clear and convincing evidence for an invalidity defense.

The statute at issue was 35 U.S.C. §282 which states:

A patent shall be presumed valid…. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity. (more…)