March 05, 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 patent cases that were appealed from the district court level and decided by the Federal Circuit during the eighth calendar week of 2007. All opinions are precedential unless otherwise indicated.

Mymail, Ltd. v. America Online, Inc., et al. (02/20/2007): appeal of summary judgment of non-infringement and cross-appeal of ruling that plaintiff has standing (both affirmed), discussion of patent relating to a method of providing network customers with access to a network (like the internet) when away from their normal base of operations (U.S. Patent No. 6,571,290 (“Method and apparatus for providing fungible intercourse over network”)), a plaintiff must demonstrate legal title at the beginning of a patent infringement suit, review of claim construction of “NSP” (a coined term without meaning apart from the patent), statements of counsel during Markman hearing to “agree” on claim meaning precludes plaintiff from “now argu[ing] against that claim construction simply because it resulted in an adverse ruling on summary judgment,” question of literal infringement “collapsing” into claim construction, defendants’ systems do not perform the task claimed in the patent (authentication) so summary judgment of non-infringement appropriate

Sevenson Environmental Services, Inc. v. Shaw Environmental, Inc. (02/21/2007): appeal of summary judgment that patent infringement suit against defendant was barred by government contractor immunity under 28 U.S.C. § 1498 (affirmed), discussion of several patents relating to methods for treating hazardous waste (remediation) by applying phosphoric acid (U.S. Patent Nos. 5,527,982, 5,732,367, 5,916,123, 5,994,608, and 6,139,485), government contractor liability for patent infringement, dismissal of suit against contractor as the United States was the appropriate defendant, interpretation of language in government contracts pertaining to use of U.S. patents, use of contract here “for the Government” and “with the authorization and consent of the Government” to provide immunity to the defendant contractor

Windy City Innovations, LLC v. America Online, Inc. (Order) (02/22/2007, non-precedential): grant of limited remand so district court can consider whether or not to grant Fed. R. Civ. P. 60(b) motion but otherwise retain jurisdiction over an appeal, potential total remand of case if motion granted,

Finisar Corp. v. The Directv Group, Inc., et al. (Order) (02/22/2007, non-precedential): motion to require appellants to designate for inclusion in joint appendix demonstrative exhibits previously unfilled (or to “correct the record”), no demonstrative exhibits were previously filed so they should not be included in the joint appendix, no prior showing that the record should be corrected (motion denied)

Hakim v. Cannon Avent Group, PLC, et al. (02/23/2007): appeal of summary judgment of non-infringement and invalidity (affirmed), discussion of two patents relating to drinking cups that prevent liquid from spilling if the cup is tipped over (U.S. Patent Nos. 6,321,931 and 6,357,620 (both “No-spill drinking cup apparatus”)), claim construction relating to a “slit” in flexible material of the valve (original patent) and an “opening” in the flexible material (continuation patent), filing of continuation application to pursue broader claims than the original application permissible, doctrine of prosecution disclaimer, “opening” in continuation construed as a “slit” as originally described in the specification of the parent patent, anticipation of continuation application based on Italian patent reference not before the patent examiner, decision to strike expert declaration not clearly erroneous or contrary to law


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Mark Reichel
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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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