IP Litigation Blog

Signs of things to come?

Just when it appears things can’t get much worse for patent plaintiffs, the Federal Circuit surprises us with a modest string of decisions actually finding in favor of patent holders.

Just one week after Muniauction, Inc. (pdf) took it on the chin by having its $77 Million jury verdict reversed (that’s reversed as in “you get zip, nada, nothing”), the boys in DC actually decided one in favor of the patentee. (pdf) What’s more they did it by upholding a summary judgment finding of infringement. Hmmm, haven’t seen that in quite a while.

On August 1 of this year, they truly outdid themselves by not only reversing summary judgment findings (pdf) of invalidity, noninfringement, and inequitable conduct (with fees thrown in to boot), but directing that the case be reassigned to a different judge on remand as well. I had to pinch myself to make sure I wasn’t dreaming. I wasn’t – six days later they did it again (pdf) (well, almost – no reassignment to a new judge this time).

Then in short order they (1) reined in a potential infringer who filed an early DJ action, (2) partially upheld a jury verdict in favor of an individual patent holder, and (3) vacated a lower court’s summary judgment finding of no infringement and no liability for damages. What’s truly amazing is that in the second of these (Voda v. Cordis), they actually upheld the jury’s finding of infringement under the doctrine of equivalents – THE DOCTRINE OF EQUIVALENTS of all things! (For you youngsters who’ve never heard of it, just ask anyone in practice before 2002. He might even be able to tell you about phlogiston too.)

Speaking of ancient history, the Eight Circuit at one time was so anti-patent they had an unbroken string of 18 or 19 decisions, each finding the subject patents invalid.  Finally, and no doubt recognizing that this had not gone unnoticed by the bar, they upheld some obscure patent, probably just to get one in the “win” column for a change.

While the cynical side of me says the Federal Circuit is simply doing the same thing here, (after all, even the tightest casinos have to let someone win on occasion) I’d like to think maybe the pendulum is swinging back in favor of patentees once again.  

On a serious note, what I’d truly like to think is that the work former Judges Markey, Rich and others did to deliver patent law from an arcane backwater to the forefront of law has not been wasted.  There is no doubt in my mind that the law has shifted away from protecting individual inventors in recent years and that some on the Court have an agenda in that direction.  Whether they will win out is unclear. 

Perhaps this minor string of cases upholding patent rights signals a real change back to strong patents.  Perhaps they are only a minor aberration.  Or perhaps the real aberration has been the first twenty years of the Federal Circuit’s existence and that what we are witnessing now is merely a reversion of the law back to what it has been all along.  I’d like to think not, but the truth is that for most of the Twentieth Century patents weren’t worth much, if anything. We’ve lived through that before and it could easily happen again.  Are we heading that direction?  Guess time will tell.
 

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Peter - November 26, 2008 3:40 AM

Perhaps the courts are simply giving the PTO respect as a little treat (the same way you train a dog) as a reward for the PTO tightening its standards concerning nonobviousness. So maybe the courts are showing greater respect for the presumption of validity.

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