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August 2007
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In re Gabapentin Patent Litigation

Warner Lambert Co., Pfizer Inc., and Gödecke Aktiengesellschaft (collectively “Warner Lambert”) appeal from the judgment of the United States District Court for the District of New Jersey granting summary judgment of noninfringement of claims 7-11 of U.S. Patent 6,054,482 (“the ’482 patent”) in favor of appellees Purepac Pharmaceutical Co., Faulding Inc., Teva Pharmaceutical Industries, Inc., Teva Pharmaceuticals USA, Inc. (collectively “Teva”), Zenith Laboratories, Inc. (now known as IVAX Pharmaceuticals NV, Inc.), Zenith Goldline Pharmaceuticals, Inc. (now known as IVAX Pharmaceuticals, Inc), IVAX Corp. (collectively “IVAX”), and Eon Labs Manufacturing, Inc. (generic defendants collectively referred to as “appellees”). Because we conclude that the district court erred in determining that there were no genuine issues of material fact concerning whether Warner Lambert failed to meet its burden of proof that the accused products infringe the asserted claims of the ’482 patent, we reverse and remand. Because we conclude that the district court did not err in construing the disputed claim limitations, we affirm those aspects of the district court’s decision.

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GP Industries, Inc. v. Eran Industries, Inc.

Eran Industries, Inc. (“Eran”) appeals from the decision of the United States District Court for the District of Nebraska granting GP Industries, Inc.’s (“GPI’s”) motion for a preliminary injunction enjoining Eran from future correspondence with present and potential customers. GP Indus. v. Eran Indus., No. 08:06-CV-50 (D. Neb. Nov. 8, 2006) (Preliminary Injunction Order). Because we determine that the court abused its discretion in granting the preliminary injunction, we reverse.

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BMC Res., Inc. v. Paymentech, L.P.

BMC Resources, Inc. (BMC) appeals the district court’s decision on summary judgment that Paymentech, L.P. (Paymentech) does not infringe asserted claims from two patents owned by BMC. The court determined that Paymentech had not infringed the claims because it performed some but not all of the steps of the asserted method claims. Because the record contains no basis to hold Paymentech vicariously responsible for the actions of the unrelated parties who carried out the other steps, this court affirms the finding of non-infringement.

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In re Comiskey

Appellant Stephen W. Comiskey (“Comiskey”) appeals the decision of the Board of Patent Appeals and Interferences (“Board”) affirming the examiner’s rejection of claims 1-59 of his patent application as obvious in view of the prior art and therefore unpatentable under 35 U.S.C. § 103. We do not reach the Board’s obviousness rejection of the independent claims under § 103 because we conclude that Comiskey’s independent claims 1 and 32 and most of their dependent claims are unpatentable subject matter under 35 U.S.C. § 101. We conclude that independent claims 17 and 46 (and their dependent claims) and dependent claims 15, 30, 44, and 58 recite statutory subject matter but remand to the PTO to determine whether the addition of a general purpose computer or modern communication devices to Comiskey’s otherwise unpatentable mental process would have been obvious. We therefore affirm-in-part, vacate-in-part, and remand.

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Adenta GmbH v. OrthoArm

OrthoArm, Inc. appeals from the decisions of the United States District Court for the Eastern District of Wisconsin denying its motion to dismiss this case for lack of subject matter jurisdiction and its motion, following a jury verdict, for judgment as a matter of law that claims 1-8 and 10-13 of U.S. Patent 6,257,883 (the “’883 patent”) are not invalid. Adenta GmbH v. OrthoArm, No. 04-C-905 (E.D. Wis. Jan. 20, 2006) (Jurisdiction Order); Adenta GmbH v. OrthoArm, No. 04-C-905 (E.D. Wis. July 11, 2006) (JMOL Order). Adenta GmbH, Dr. Wolfgang Heiser, and Claus Schendell cross-appeal from the decision of the district court denying their request for a declaratory judgment that the case is exceptional. Because we determine that a case or controversy exists, we affirm the decision of the district court denying the motion to dismiss for lack of subject matter jurisdiction. Because we determine that substantial evidence exists in the record supporting the jury’s verdict that the asserted claims of the ’883 patent are invalid based on a public use or sale under 35 U.S.C. § 102(b), we affirm the decision of the district court denying the motion for judgment as a matter of law. We affirm the district court’s decision that no inequitable conduct was shown, and we also affirm the decision of the district court denying Adenta’s motion to declare the case exceptional.

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Morrow v. Microsoft Corp.

Spacone appeals the United States District Court for the Northern District of California’s grant of Microsoft Corporation’s (Microsoft) motion for summary judgment of noninfringement of claims 2, 8, 12, and 13 of U.S. Patent No. 6,122,647 (the ’647 patent). Microsoft cross-appeals, asserting Spacone lacked standing to bring suit. We reverse the district court’s determination that Spacone had standing to sue Microsoft for infringement of the ’647 patent and vacate the judgment of noninfringement.

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County Materials Corp. v. Allan Block Corp.

This case is one of those nonpatent patent cases that, as we explain more fully below, falls within the jurisdiction of the regional courts of appeals rather than the Federal Circuit. See 28 U.S.C. §§ 1295(a)(1), 1338; Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 829-30 (2002) (applying well-pleaded-complaint rule to § 1338). Two companies, County Materials Corporation and Allan Block Corporation, entered into a production agreement (“the Agreement”) giving exclusive rights to County Materials to manufacture Allan Block’s patented concrete block; the issue is whether County Line was free to sell an allegedly non-infringing product, despite the presence of a covenant not to compete in the Agreement in which County Line promised not to sell competing products for 18 months if it stopped making Allan Block’s product. Following the termination of the Agreement, County Line decied not to wait for the full 18 months before jumping back into the market with a competing product. Allan Block threatened to sue, but County Line beat it to the courthouse with this suit for a declaratory judgment. County Line wanted the district court to declare that the covenant not to compete was unenforceable because it violated federal patent policy, essentially raising an anticipatory patent misuse defense to its planned breach of the Agreement. The district court granted summary judgment to Allan Block, finding no violation of federal patent policy or Minnesota law. We agree with the district court’s conclusions and affirm.

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In re Petrus A.C.M. Nuijten

The issue before the court is whether or not a signal is patentable subject matter. Petrus A.C.M. Nuijten appeals the decision of the Board of Patent Appeals and Interferences (“Board”) of the United States Patent and Trademark Office (“PTO”), which rejected claims 14, 22, 23, and 24 in his patent application Serial No. 09/211,928 as unpatentable subject matter outside the scope of 35 U.S.C. § 101. The claims seek to patent any “signal” that has been encoded in a particular manner. Because we agree with the Board that the “signal” claims in Nuijten’s application are not directed to statutory subject matter, we affirm.

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Patent suit against Microsoft tossed

  

Bloomberg News

Microsoft won its bid to have a patent-infringement lawsuit by creditors of defunct Internet service provider At Home thrown out.

The U.S. Court of Appeals for the Federal Circuit in Washington ruled Wednesday that a trust set up to pay At Home's creditors lacked authority to sue Microsoft over a patent they received in payment of bankruptcy claims.

The court ruled that U.S. patent law, not bankruptcy law, governs who has power to sue over patents transferred to help pay off a bankrupt company's debt.

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McZeal v. Sprint Nextel Corp.

Alfred McZeal, Jr. (“McZeal”) appeals the judgment of the United States District Court for the Southern District of Texas dismissing his complaint for failure to state a claim. McZeal v. Sprint Nextel Corp., No. H-06-1775 (S.D. Tex. June 20, 2006). Because McZeal met the minimal pleading requirements for his patent and trademark infringement claims, we vacate the district court’s dismissal of his complaint and remand for further proceedings.

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