June 06, 2007

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). My goal is to post new cases on a weekly basis. This posting covers the three patent cases that were appealed from the district court level and decided by the Federal Circuit during the 22nd calendar week of 2007. All opinions are precedential unless otherwise indicated.

Haberman v. Gerber Products Company (05/29/2007, non-precedential): appeal of final judgment of patent invalidity for anticipation and cross-appeal judgment of infringement, denial of motion to amend answer to assert inequitable conduct and denial of attorney fees (affirmed-in-part, reversed-in-part, vacated-in-part, and remanded); discussion of patent related to children’s spill-proof drinking containers (U.S. Patent No. 6,116,457, entitled “Drinks containers”); regarding anticipation, “extrinsic evidence used to fill a gap in a reference must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill”; judgment of anticipation reversed because no sufficient evidence presented from which a reasonable jury could have found that a prior art valve was necessarily operable by suction; “[l]ack of factual support for expert opinion going to factual determinations, however, may render the testimony of little probative value in a validity determination”; judgment as a matter of law on the issue of infringement because “the district court erred in concluding that no reasonable jury could have reached a verdict of no infringement” based on the evidence presented; no error for court’s refusal to allow amended answer and refusal to award attorneys fees; judgment of invalidity reversed and remanded for obviousness determination

Motionless Keyboard Company v. Microsoft Corporation, et al. (05/29/2007): appeal of summary judgment of noninfringement (literal or under doctrine of equivalents) and that the patents-in-suit were invalid based on public use and obviousness (affirmed-in-part and reversed-in-part); discussion of two patents related to ergonomic input devices (U.S. Patent No. 5,178,477, entitled “Ergonomic keyboard input device”, and U.S. Patent No. 5,332,322, entitled “Ergonomic thumb-actuable keyboard for a hand-grippable device”); no literal infringement because the allegedly infringing devices do not have a concave housing and a keyboard within the cavity; “[t]o avoid a grant of summary judgment of non-infringement by equivalents, the patentee must present "particularized evidence and linking argument as to the 'insubstantiality of the differences' between the claimed invention and the accused device, or with respect to the 'function, way, result' test"”; no evidence presented to show “that the differences between the joysticks and the claimed elements are insubstantial, or that the joysticks perform 'substantially the same function in substantially the same way to obtain the same result’”; affirmed determination of noninfringement on summary judgment; “[p]ublic use includes “any [public] use of [the claimed] invention by a person other than the inventor who is under no limitation, restriction or obligation of secrecy to the inventor”; "a confidentiality agreement will not preclude application of the public use doctrine, if the device was disclosed for commercial purposes"; “[a] terminal disclaimer simply is not an admission that a later-filed invention is obvious” (trial court erred on this point and the determination that the ‘322 patent is invalid for obviousness was in error); claim construction and summary judgment of noninfringement affirmed, but summary judgment ruling of invalidity and determination of invalidity for obviousness due to the terminal disclaimer reversed

Automated Technologies, Inc. v. Knapp Logistics & Automation, Inc., et al. (05/31/200, non-precedential): appeal of final judgment granting summary judgment of non-infringement (affirmed); discussion of patent related to a method and apparatus for automatically filling prescription drug orders (U.S. Patent No. RE37,829, entitled “Automated prescription vial filling system”); only issue on appeal was whether or not the district court’s claim construction was in error; claim at issue discusses a vial labeler, which is described in the specification as labeling vials after they are filled (“[t]he system … automatically fills one or more vials with one or more drugs, and then automatically labels and caps the vials…”); the use of the word “then” within the specification was deemed to mean that the vials are full of drugs prior to labeling; the district court’s claim construction considered to be correct

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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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