November 17, 2006

I will periodically post case citations from the Federal Circuit along with the date of the opinion/order and a brief list of the legal topics discussed therein (specifically those with additional embedded case law citations). This posting covers the ninety-sixth through the one hundredth patent cases that were appealed from the district court level and decided by the Federal Circuit in 2006. All opinions are precedential unless otherwise indicated.

Tegic Communications v. Bd. of Regents of the Univ. of Texas System (08/10/2006): Eleventh Amendment providing a sovereign immunity from suit, application of Eleventh Amendment to patent and trademark infringement lawsuits, waiver of immunity by submitting to jurisdiction of a federal court, procedural nature of declaratory actions, the customer suit exception, assertion of Eleventh Amendment immunity to declaratory action suit

Korsinsky v. Microsoft Corp. (08/16/2006, non-precedential): patent expiration for failure to pay maintenance fee; dismissal of infringement case based on asserted expired patent, 35 U.S.C. § 286 (no recovery for infringement committed more than six years before filing complaint or counterclaim for infringement)

Monsanto Company v. Scruggs, et al. (08/16/2006): summary judgment appellate standard of review, infringement standard and defenses, first sale/patent exhaustion doctrine, implied license to use patented technology, seller cannot grant broader license than obtained from patent holder, validity and written description requirement, enablement requirement and experimentation, antitrust laws and permissible conduct within scope of patent protection, tying arrangements and unlawful monopolization under the Sherman Act, waiver of counterclaim arguments for failure to develop them within the briefs, permanent injunctions

Conoco v. Energy & Environmental International (08/17/06): appellate review of claim construction, requirement of clear intent to disclaim claim scope within the specification, "consisting of" having its own construction (MPEP § 2111.03) and discussion thereon, doctrine of equivalents and prosecution history estoppel, amendment-based and argument-based estoppel, contempt proceedings

Cook Biotech v. Acell (08/18/06): summary judgment, denial of a judgment as a matter of law, and claim construction appellate standards of review; two-step determination of patent infringement, claim construction review based on language within the patent specification, incorporation of documents by reference and their impact on claim construction, doctrine of equivalents

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Mark Reichel
Reichel IP LLC

I am a patent attorney with Reichel IP LLC, where I concentrate my practice on patent drafting and prosecution, trademarks, and general intellectual property matters. I currently focus on the preparation and prosecution of medical device and other life sciences patent applications, and being actively involved in a number of local not-for-profit organizations.

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