Intellectual Property and Tech Law Reports

Perricone v. Medicis Pharm.

CONCLUSION This court affirms the district court’s summary judgment of invalidity of claims 1-19 of the ’063 patent and claims 8, 9, and 13 of the ’693 patent. However, because the district erred in its anticipation analysis of claims 1-4 and 7 of the ’693 patent, this court reverses the district court’s summary judgment of invalidity as to those claims. Moreover, this court vacates the district court’s summary judgment of non-infringement of claims 1-4 and 7 of the ’693 patent, but affirms that summary judgment as to the remaining claims in that patent. Finally, this court affirms the district court’s denials of Medicis’ motion for attorney fees under 35 U.S.C. § 285. This court remands for further proceedings.

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Norian Corp. v. Stryker Corp.

The district court concluded that the claim term required that the solution be made from only a single sodium phosphate. Because it was undisputed that Stryker’s solution was made from more than one sodium phosphate, the court ruled that Stryker’s solution did not infringe Norian’s patent. Norian appeals, contending that the district court’s claim construction was too narrow, and that the term “solution consisting of water and a sodium phosphate” should be construed to include solutions made from multiple sodium phosphates and should not be limited to solutions made from only a single sodium phosphate.

. . .

Norian does not suggest that this case falls within one of the exceptions to the rule of prosecution history estoppel set forth by the Supreme Court in Festo. See Festo, 535 U.S. at 740-41. Instead, Norian’s argument is that Festo is inapplicable altogether because Norian never surrendered the subject matter in dispute. As indicated above, we have rejected Norian’s interpretation of the prosecution history, and we have concluded, contrary to Norian’s argument, that the patentee disclaimed solutions made from more than one form of sodium phosphate. As such, Festo is applicable to Norian’s argument under the doctrine of equivalents, and in the absence of any suggestion of why the principles of Festo do not bar Norian from recourse to that doctrine to establish infringement, we hold that Norian cannot avoid summary judgment of noninfringement on that ground. Accordingly, we uphold the district court’s judgment in all respects.

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Dane County Court Ruling on Open Meeting Law

In a suit against the State of Wisconsin Joint Committee on Legislative Organization and its individual members, a Dane County Circuit Court ruled on a motion for summary judgment that the legislature and its committees are subject to open meeting laws.  However the legislature and its committees cannot be subject to a suit for violations of the open meeting laws due to sovereign immunity. 

It also held that individual members of the legislature and its committees may be sued for violating the open meetings law.  Further court action will follow regarding the actions of the individual members of the committee.

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