Monday’s Federal Circuit decision in Insituform Technologies v. CAT Contracting, et al. answers one of the deepest, most profound questions ever to arise in patent jurisprudence. That question – asked by corporate executives everywhere – is, “Why does patent litigation cost so damn much?”

The Insituform decision is a fascinating example of a system run amok. It’s remarkable not for its actual holding, but for its account of the tortured history the case has had in the fourteen years since being filed. Procedure and endless obsessing over minutiae have displaced lesser concerns, such as rendering a more-or-less reasoned decision while the litigants are still young enough to care. Continue Reading That’s where my money goes…

A couple of cases from the Federal Circuit this week suggest (to me anyway) that the court has no intention of relinquishing any real power any time soon. The march toward total control over the outcome of patent cases thus continues.

In Astrazeneca AB, et al. v. Mutual Pharmaceutical Company, Inc. the Federal Circuit once again relies on features of the preferred embodiment to find limitations that don’t actually appear in the claims. In Laboratory Corporation of America Holdings, et al. v. Chiron Corporation, the court considers a narrow procedural issue and concludes that it has the power to decide questions that actually affect the outcome of patent cases. The net result is to consolidate the power of the Federal Circuit to determine the final outcome in patent cases with little, if any, say from others. Continue Reading And the Beat Goes On…

Move over pajama-clad “Rathergate” bloggers, the real action this week was (as always) on the patent litigation front. September 20, 2004 marked the DUE DATE for various “Friends of the Court” to file their Amicus Briefs in Phillips v. AWH Corp., a case now before the entire panel of Federal Circuit judges.

The Phillips case is terribly important because it might well define how patent claims are interpreted in decades to follow. That is, or should be, of interest to those of us who enforce patent rights, particularly on behalf of the “little guy.” Dennis Crouch’s excellent Patently Obvious contains links to at least eleven of the briefs and summarizes the basic arguments they make. They make for fascinating reading. Continue Reading Ya’ Gotta Have Friends! (Or, “With Friends Like These…”)

Some cynics claim Congress passes copyright laws mostly to protect Mickey Mouse. While that might be overstating things, there’s no question the trend over the past thirty years has been to expand the rights of copyright owners, Disney included.

A recent article in Wired talks about a new legal challenge (Kahle v. Ashcroft) to expansive copyright laws. While I don’t think the challenge will succeed, it does raise interesting questions prompted by changes in the way information is now distributed. Continue Reading Mickey, Watch Your Back. (Famous Mouse Faces New Legal Threat)

Just when the Federal Circuit starts showing signs of (once again) making sense, they come up with a new decision that leaves me scratching my head. It’s no secret that the Doctrine of Equivalents is on their hit list. Unless I’m mistaken, the next patentee-friendly doctrine to go might be the ancient and honorable rule that “features of the preferred embodiment should not be read into patent claims.” Continue Reading Group Thinking

I can’t believe it. Maybe I’m wrong (I’ll re-read the case Tuesday). But it sure seems the Court of Appeals has finally let common sense influence one of its decisions. The Court today overruled its prior holding that adverse inferences can be drawn when someone accused of patent infringement invokes his fundamental right NOT to disclose his lawyer’s advice. This is as it should be and the Court now has it right. Continue Reading Sanity Returns to Court of Appeals

Here at the Mann Law Group, our focus is on helping smaller patent owners take on much larger opponents. I find it helpful, therefore, to keep track of what corporate counsel and management are thinking, particularly with regard to patents and related lawsuits. An article in the September 3, 2004 Silicon Valley/San Jose Business Journal, discusses how larger corporations should react when faced with a charge of patent infringement and provides valuable insight. Continue Reading Further Views From the Corporate Side

It’s not uncommon for parties in a lawsuit to think the judge is biased, unfair and singling them out for unfair treatment. Usually this happens after the judge rules against them on some procedural issue or otherwise signals he’s unimpressed with the merits of your case. Even experienced lawyers sometime question whether a particular judge has it in for them. Thus, the question often comes up: “Can’t we get ourselves a new judge?” A recent decision of the Court of Appeals for the Federal Circuit in Juicy Whip, Inc. v. Orange Bang Inc., (I love these names!) sheds important light on how an appellate court is likely to respond if actually asked to assign a new judge. Continue Reading “I don’t like this judge, can’t we get another?”