May 08, 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 18th calendar week of 2007. All opinions are precedential unless otherwise indicated.

E-Pass Technologies v. Microsoft Corporation, et al. (05/02/2007, non-precedential): appeal of summary judgment of noninfringement by both defendants, finding no direct or indirect infringement (affirmed); discussion of patent related to a method and device for storing information from various sources, such as credit cards, on one multi function card. (U.S. Patent No. 5,276,311, entitled “Method and device for simplifying the use of a plurality of credit cards, or the like”); challenge of claim construction as being improper at the district court level; Sometimes claim construction “involves little more than the application of the widely accepted meaning of commonly understood words”; comparison of plaintiff’s construction for one claim to the same construction in other claims would result in multiple meanings of the same claim term (fact-specific case)

Foremost in Packaging Systems (Doing Business as Envirocooler) v. Cold Chain Technologies (05/02/2007): appeal of claim construction and ruling of noninfringement (affirmed); discussion of patent related to insulated shipping containers designed to carry items such as pharmaceuticals and human tissue (U.S. Patent No. 5,924,302, entitled “Insulated shipping container”); discussion of the claim term “slidingly engage”; no literal infringement shown, and in this particular case, infringement under the doctrine of equivalents cannot be invoked (fact-specific case)

Syngenta Seeds v. Monsanto Company, et al. (05/03/2007): appeal of determination of no infringement as a matter of law regarding two patents, but that claims of a third patent were infringed but invalid (affirmed); discussion of three patents related to a transgenic corn plant modified to produce and insecticidal protein (U.S. Patent Nos. 6,075,185 and 6,320,100, both entitled “Synthetic DNA sequence having enhanced insecticidal activity in maize,” and 6,403,865, entitled “Method of producing transgenic maize using direct transformation of commercially important genotypes”); discussion of invalidity of patent for obviousness based on prior art published patent application disclosure; “[w]hether there was a reasonable expectation of success is a question of fact,” and “[w]hether the degree of success is unexpected in light of suggestions in the prior art is a factual question”; discussion of claim construction led to the application of the doctrine of waiver; [t]he doctrine of waiver precludes a party from advocating a new theory of claim constriction on appeal,” and because the plaintiff never raised its present proposed construction before the district court, its proposed construction was waived


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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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