Archive for the ‘Federal Court’ Category

Limelight Networks v. Akamai Tech. – Cert. Denied

Monday, April 18th, 2016

Today the Supreme Court declined to hear Limelight’s petition for cert. on the question of whether an accused infringer may be held liable for direct infringement of a claim to a method where multiple parties perform the steps of the method.

On August 13, 2016, the S. Ct. remanded the en banc decision of the Fed. Cir. that set forth the law of divided infringement under s. 271(a), and found that Limelight directly infringed U.S. Pat. No. 6,108,703. The court held that an entity will be found responsible for others’ performance of method steps “(1) where that entity directs or controls others’ performance, [or] (2) where the actors form a joint enterprise.”  (more…)

Rader Steps Down – Prost Steps Up

Friday, May 23rd, 2014

Judge Randall Rader will step down as Chief Judge of the Fed. Cir. on May 30th, and Judge Sharon Prost will replace him. Judge Rader will remain active as a “Circuit Court Judge.”

As Chief Judge, Rader bought sheer intelligence and coherence to a number of difficult decisions. Although I have criticized his Bilski dissent – which bought the cult of the abstract idea to prominence, he also was among  the last of the defenders of a limited role for the written description requirement – a  legal battle eventually lost (See his concurrence in Novozyme v. DuPont Nutrition this year).

I guess I would have hoped for a Chief Justice with some scientific background – Judge Prost is an expert on Labor Relations, but I certainly wish her well as she prepares to lead the court into uncharted waters, with the Supreme Court poised to be the Neptune to her Ulysses.

Stories I Missed In 2013

Thursday, January 16th, 2014

Some IP Stories Do Not Have Much “It” Factor.  Just like there used to be, and I guess still are, “It Girls” in showbiz and fashion, there are “It Issues” in IP law. I know these decisions/controversies are very important to the parties involved, but I just couldn’t get enthusiastic about these stories. However, since you may wish to investigate them further, I thought I would send out a short list.

1.  The legality of Michelle Lee’s appointment as Acting Deputy Director of the PTO (or whatever her title will turn out to be). More interesting would be the story of why Terry Rea was not offered the position (if she even wanted it).

2.  What “and/or” means in a patent claim. Although the PTO usually does not object to its use, it is probably better to write something like “at least one of A or B”, or “A or B or a combination thereof”.

3.  In case you have not noticed, prosecution history estoppel can limit the scope of a design patent. ‘Nuff said.


Bosch, Ultramercial, Commil, Fresenius: All-Star Break

Tuesday, July 23rd, 2013

A guest post from Ron Schutz of Robins, Kaplan, Miller & Ciresi

The Federal Circuit goes into the symbolic half-way point of summer leading the league with a series of homerun opinions. To keep the games back gap on updates from widening, consider the following take on a Midsummer Classic.

Bosch v. Pylon In Bosch, the Federal Circuit considered en banc two questions regarding the extent of its appellate jurisdiction under 28 U.S.C. § 1292(c)(2). That statute authorizes an interlocutory appeal from a judgment in a patent infringement judgment action that is “final except for an accounting.” Sua sponte, the court asked whether § 1292(c)(2) confers jurisdiction for an appeal of patent infringement liability before a trial on damages has occurred and whether that jurisdiction exists when willfulness issues remain undecided.