April 16, 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 15th calendar week of 2007 (and including the Bass Pro case from the Friday prior). All opinions are precedential unless otherwise indicated.

Bass Pro Trademarks v. Cabela's (04/06/2007): appeal of contempt order for violation of settlement agreement and consent judgment (vacated); discussion of patent related to a vest with a built-in seat portion (U.S. Patent No. 5,620,227, entitled “Vest Garment With Pivotable Seat Member”); “grant of a contempt order for violation, by a modified device, of an injunction against infringement requires that the modified device infringes the patent, either literally or by application of the doctrine of equivalents”; prosecution history stresses term used in preamble of claim, and the district court erred in holding that the term at issue (“vest”) as included within claim 1 was not a material limitation to the claim; “redesigned device could not reasonably be found to literally infringe the subject patent” so the contempt order (and sanctions) were vacated

F&G Research, Inc. v. Paten Wireless Technology, Inc. (order) (04/11/2007, non-precedential): responses by both parties to the court’s orders as to whether or not appeals filed should be dismissed; patent infringement suit filed, but no answer filed so district court entered default judgment; defendant filed notice of appeal and case was reinstated; defendants appeal dismissed because defendant no longer wished to pursue its appeal; appeals dismissed because filed prematurely, because “[i]f a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no final decision under 28 U.S.C. § 1295 (a)(1) and therefore no jurisdiction”

Acumed LLC v. Stryker Corporation, et al. (04/12/2007): appeal of jury finding of willful infringement and issuance of permanent injunction (affirmed-in-part, vacated-in-part, and remanded); discussion of patent related to orthopedic devices to treat upper arm fractures (U.S. Patent No. 5,472,444, entitled “Humeral nail for fixation of proximal humeral fractures”); discussion of claim construction of the terms “curved” and “sharp” as used within the specification and the claims; “[T]he presence of a dependent claim that adds a particular limitation raises a presumption that the limitation in question is not found in the independent claim” and “[t]hat presumption is especially strong when the limitation in dispute is the only meaningful difference between an independent and dependent claim, and one party is urging that the limitation in the dependent claim should be read into the independent claim”; discussion of the terms “perpendicular” and “transverse” as relating to holes within the device; “[f]avorable opinions of counsel normally present a well-grounded defense to willfulness, but the protection they afford is not absolute, as there are “cases where willful infringement is found despite the presence of an opinion of counsel generally involve situations where opinion of counsel was either ignored or found to be incompetent”; district court determination of infringement and willfulness affirmed, but the permanent injunction was vacated and remanded for reconsideration in light of eBay v. MercExchange


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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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