Header graphic for print
Patent Practice Professional Liability Reporter Your Pacific Northwest Law Firm

Category Archives: Patent Litigation

Subscribe to Patent Litigation RSS Feed

Hiding in Plain Sight: The Delano Farms Plant Patent Case

Posted in Expert Witness, Patent Applications, Patent Litigation, Plant Patents

Mysterious to even many patent practitioners, plant patent issues create their own peculiar body of controlling case law.  A recent Federal Circuit decision, Delano Farms v. The California Table Grape Commission, illustrates this point well. The Delano Farms case explores what factually does not count as invalidating “public use” of two patented table grape varieties,… Continue Reading

The Dire Consequences of Misleading Patent Examiners and the Court During Patent Prosecution and Litigation

Posted in Expert Witness, Inequitable Conduct, Inventor Witness, Patent Litigation

As the summer winds down, vacations recede in the rear-view mirrors, and the “school” year begins, two recent cases offer a refresher course in the dire consequences awaiting  inventors who misrepresent prior art during patent examination proceedings, and for patent litigators who misreport the nature of potential witness testimony in federal district court trials.  The… Continue Reading

Credibility Challenges Posed by the Eccentric Inventor Witness

Posted in Inventor Witness, Patent Litigation, Pretrial Discovery

Eccentric inventors can be their own worst enemies at depositions and on the witness stand at trial.  General Electric Co. v. Wilkins  (Fed. Cir., May 8, 2014) is a recent case on point.  The General Electric case involved a single issue: whether Thomas Wilkins was an omitted co-inventor of certain patented wind turbine technology. The… Continue Reading

Playing Fast and Loose With Corroborating Evidence: Patent Advocacy Inequitable Conduct

Posted in Inequitable Conduct, Patent Litigation, Patent Prosecution, Rules of Professional Responsibility

Patent litigation often involves the assertion of prior art anticipation and obviousness defenses.   U.S. patents are presumed valid, so a defendant seeking to overcome this presumption must persuade the fact-finder of a patent’s invalidity with clear and convincing evidence.  Corroborative evidence of invalidity—e.g., contemporaneous documents, physical specimens and witness testimony—is generally necessary to satisfy this… Continue Reading

The Patent Legal Malpractice Implications of “Walker Process” Antitrust Claims

Posted in Conflicts of Interest, Inequitable Conduct, Insurance Claims, Legal Malpractice, Patent Litigation, Patent Prosecution, Proximate Causation, Rules of Professional Responsibility

As experienced trial lawyers know, successfully trying or defending a case is all about presenting a compelling, understandable theme and narrative that comports with a judge and jury’s common sense and experience. Juries especially are prone to favor litigants and lawyers they like and case theories they easily understand.  That is human nature on display… Continue Reading

Is it Time for Federal Courts to Stop Exercising Jurisdiction Over Patent Legal Malpractice Claims?

Posted in Conflicts of Interest, Expert Witness, Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent Prosecution, Rules of Professional Responsibility

During past month when many patent practitioners may have been distracted by the “laws of nature” meaning of the Mayo v. Prometheus decision, the Court of Appeals for the Federal Circuit issued four precedential rulings confirming the exclusive authority of federal courts to adjudicate patent legal malpractice claims.  Only the Supreme Court can alter this… Continue Reading

The Jurisdictional Power of the “Case-Within-A-Case” Doctrine in Patent Legal Malpractice Litigation

Posted in Inequitable Conduct, Patent Litigation, Proximate Causation

  The Federal Circuit’s recent precedential decision, Warrior Sports, Inc. v. Dickenson Wright, P.L.L.C. (issued on January 11, 2011), demonstrates (once again) the sheer power and ability of the “case-within-in-case” doctrine to jurisdictionally transform a state law malpractice claim into a case arising under federal patent law. In an unusual twist, the Warrior Sports plaintiff… Continue Reading

“It’s Too Late Baby, Now It’s Too Late Though We Really Did Try to Make It”: The Perils of Missing Patent Litigation Deadlines

Posted in Patent Litigation

The recently concluded (and now appealed) Gardner v. Toyota Motor Corporation patent case offers yet another important lesson in the pitfalls of missing case schedule deadlines.  These deadlines inundate patent litigation, especially with the advent of many local patent rules. Even the best substantive points and arguments can turn sour when they are brought by… Continue Reading

Jury Notes and Special Verdicts in Patent Cases: A Case Study in Jury Comprehension

Posted in Jury Instructions, Patent Litigation, Patent Pleadings

It is commonplace to bemoan the lack of juror comprehension in patent cases and to describe jury deliberations as a “black box” resisting analysis. The Federal Circuit favors the use of special jury verdicts to alleviate such criticisms. Special verdicts can focus jury attention on the facts that may or may not support key patent findings… Continue Reading

Tracking Down the Elusive Obviousness Special Verdict Form

Posted in Jury Instructions, Patent Litigation

Judges and legal commentators have long cautioned patent practitioners about the pitfalls of “obviousness” jury determinations that pose only the ultimate question: Has defendant proven by clear and convincing evidence [or that it is highly probable] that Claim X of the ‘123 Patent is obvious? Yes ____ No ____. Whether the answer is yes or… Continue Reading

Twin Challenges in Drafting a Viable Patent Legal Malpractice Complaint

Posted in Federal Jurisdiction, Legal Malpractice, Patent Litigation, Patent Pleadings

Drafting a short and plain statement of a patent legal malpractice claim used to be a relatively straightforward matter under the now discredited Conley v. Gibson “no set of facts” standard. That pleading landscape dramatically changed in 2007. In the wake of the Supreme Court’s Twombly and Iqbal decisions, federal court judges are now routinely called… Continue Reading

Exclusive Federal Court Jurisdiction Over Patent Legal Malpractice Claims: Where Are We?

Posted in Federal Jurisdiction, Patent Litigation

Have the twin Air Measurement and Immunocept decisions succeeded in establishing an exclusively federal forum for patent legal malpractice claims? The answer is: NOT YET. That inconclusive answer makes crafting your claim theories and drafting a well pleaded complaint or answer critical, if your goal is to have a federal court decide the merits of… Continue Reading