The Federal Circuit continues to struggle with software patentability, even after the Supreme Court’s decisions in Mayo v. Prometheus and In re Bilski. As you probably remember, those cases struck down patents for failing to claim patent-eligible subject matter under 35 U.S.C. § 101. Bilski dealt with a method of hedging investments, and Prometheus dealt […]
Category: Matt’s Posts
Akamai and McKesson, a divided court on divided infringement — Cloudigy PodBlasts, Episode No. 2
In this podcast, Antigone Peyton and Matt Levy discuss the Federal Circuit’s recent decision in the Akamai and McKesson cases. The court was supposed to be deciding what the rule should be when different parties perform the steps of a patented method. That’s not what happened, though, and the court was closely divided about […]
Patent Reexamination Makes a Judge’s Blood Boil
In re Baxter International, No. 2011–1073 (Fed. Cir. May 17, 2012) (Judges Newman, Lourie, and Moore) Patent Reexamination Is Normally Such a Peaceful Neighborhood… At first glance, this opinion doesn’t seem like a big deal. Fresenius Medical Care Holdings sued Baxter for a declaratory judgment of invalidity on Baxter’s patent in 2003 and, as often […]
Patent Claim Construction — The Means Don’t Justify the Means
Ergo Licensing, LLC v. Carefusion 303, Inc., No. 2011–1229 (Fed. Cir. Mar. 26, 2012) (Judges Newman, Linn, and Moore) Means-plus-function claims can be tricky. A means-plus-function limitation lets a patentee claim a structure by describing its function, like a “means for attaching a door to a wall” or a “means for containing liquid,” instead of […]
Patent Malpractice — A Cautionary Tale
Landmark Screens, LLC v. Morgan, Lewis, & Bockius, LLP, No. 2011–1297 (Fed. Cir. Apr. 23, 2012) (Judges Bryson, Clevenger, and O’Malley) This is a malpractice case, and the conduct by Landmark’s former patent lawyer is pretty bad. The main issue before the court was whether Landmark’s fraud claim was barred by the statute of limitations, […]
The Delicate Declaratory Judgment Dance
3M Company v. Avery Dennison Corp., No. 2011–1339 (Fed. Cir. Mar. 26, 2012) (Chief Judge Rader and Judges Lourie and Linn) When is a threat of patent infringement not a threat? If a patent owner makes too much noise, the target may file a declaratory judgment action to get to court first (and get to […]