July 31, 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 29th calendar week of 2007. All opinions are precedential unless otherwise indicated.

Automed Technologies, Inc. v. Microfil, LLC, et al. (07/16/2007, nonprecedential): appeal of summary judgment of non-infringement of two patents-in-suit and award of nominal damages for previously adjudicated breach of contract claim (affirmed-in-part, vacated-in-part, and remanded); discussion of two patents related to a system for automatically dispensing drugs (U.S. Patent Nos. 6,449,927 and 6,742,671, both entitled “Integrated automated drug dispenser method and apparatus”); “the same term or phrase should be interpreted consistently where it appears in claims of common ancestry”; dictionary definitions cannot be used to “contradict any definition found in or ascertained by a reading of the patent documents”; “[T]hat a device is capable of being modified to operate in an infringing manner is not sufficient, by itself, to support a finding of infringement”; “If a party proves that it has the right to damages but fails to provide a proper basis for computing those damages, only nominal damages may be awarded”; affirmed-in-part because one of the accused products lacked a “vibratory dispenser” and because the patentee failed to provide a proper basis for calculating damages beyond the nominal award; vacated-in-part and remanded for further proceedings consistent with the opinion

Benitec Australia, LTD. v. Nucleonics, Inc. (07/20/2007): appeal of judgment of dismissal for lack of subject matter jurisdiction on declaratory judgment counterclaims against patentee (affirmed); discussion of patent related to RNA-based disease therapy (U.S. Patent No. 6,573,099, entitled “Genetic constructs for delaying or repressing the expression of a target gene”); a party seeking to base jurisdiction on the Declaratory Judgment Act bears the burden of proving that the facts alleged, “under all the circumstances, show that there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment”; “[t]he burden is on the party claiming declaratory judgment jurisdiction to establish that such jurisdiction existed at the time the claim for declaratory relief was filed and that it has continued since”; the fact that the defendant may file an NDA in a few years does not provide the immediacy and reality required for a declaratory judgment; judgment of dismissal for lack of jurisdiction affirmed because defendant has not made a showing of “sufficient immediacy and reality” to support declaratory judgment jurisdiction

Colida v. Nokia America Corp. (order) (07/20/2007, nonprecedential): Nokia moved to dismiss Colida’s appeal and also moves for sanctions, which is opposed; Colida sued Nokia for infringement of his design patent, for which Nokia motion for dismissal was assigned to a magistrate judge, who recommended dismissal for failure to state a claim upon which relief could be granted; magistrate offered ten days to file written objections, for which Colida failed to object; Colida’s failure to object acted as waiver; Nokia’s motion to dismiss granted and it’s other motions denied


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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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