Omura v. Shafer, No. 2010-1357 (Fed. Cir. April 8, 2011) (Judges Bryson, Schall, and Moore) (nonprecedential).

One must proceed with care when engaging in interference practice. The Federal Circuit recently affirmed the Board of Patent Appeals and Interferences (BPAI) decision directing entry of judgment against the senior party to the interference, Omura, because of a lack of written description support for claim limitations that are found in claims that correspond to the interference count. Junior party Shafer had moved for entry of judgment against Omura before the BPAI due to written description issues, and asked to have the motion treated as raising a jurisdictional issue that deprives Omura of standing in the interference.

After the parties had a number of discussions with the administrative patent judge who was managing the case, with Omura’s consent to not oppose the motion, the BPAI entered judgment against Omura as to all of the claims associated with the count. Omura requested rehearing, however, asserting that the BPAI erred in deciding the count against Omura because it should have entered judgment against the claims for lack of standing (which means that Omura could bring another interference request involving claims associated with another reexamined patent).

On appeal, the Federal Circuit determined that substantial evidence supports the BPAI’s view that Omura’s actions constitute a request for an adverse judgment. It agreed with the BPAI that Board Rule 127(b)(3), which relates to requests for averse judgments based on concessions of unpatentability, applies to admissions that claims corresponding to the count lack written description support in the patent specification.

Read the original opinion here.

Siler v. United States, No. 2011-5017 (Fed. Cir. April 7, 2011) (Judges Bryson, Moore, and O’Malley) (nonprecedential).

Siler is a serial pro se litigant who has filed a number of copyright infringement claims against the United States, even though the court had already decided this issue in the government’s favor in another case. In fact, in a prior litigation involving the same allegations, the Court of Federal Claims (CFC) directed Mr. Siler to obtain advanced permission before filing another action with the court. The Federal Circuit affirmed the dismissal of his new copyright infringement complaint against the United States, and concluded that the trial court acted lawfully in requiring that he obtain prior written permission before filing another complaint.

Read the original opinion here.

Sridat S.R.S. Chinsay v. United States, No. 2011-5032 (Fed. Cir. April 7, 2011) (Judges Gajarsa, Mayer, and O’Malley) (nonprecedential).

The moral of this case is “don’t sue the United States for patent infringement if you do not have a patent.” Chinsammy filed suit in the CFC against the United States, seeking $200 trillion in damages for infringement of his patent rights. The problem with this claim is that he failed to respond to an examiner’s rejection of his pending claims during prosecution, so his patent application went abandoned and was never revived or issued as a patent. The Federal Circuit affirmed the CFC’s dismissal of his claims, since the trial court lacked jurisdiction over a claim that failed to meet the “covered by a patent” requirement of its jurisdictional statute. See 28 U.S.C. § 1498(a). The court also found his argument that filing a provisional patent application means that he obtained a provisional patent unpersuasive.

Read the original opinion here.

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