United States: Federal Circuit Patent Updates - May 2015

May 11, 2015 3:40 PM

Reyna, J. Reversing the finding of the U.S. International Trade Commission that the domestic industry requirements of § 337 were satisfied, because the ITC's domestic industry analysis and determination was based on qualitative factors. "The plain text of § 337 requires a quantitative analysis in determining whether a petitioner has demonstrated a "significant investment in plant and equipment" or "significant employment of labor or capital."

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May 7, 2015 10:15 AM

Dyk, J. Affirming Board judgment in an interference that an applicant was estopped to continue the interference because he had lost two prior interferences covering the same subject matter. The AIA eliminated district courts' subject matter jurisdiction under pre-AIA 35 U.S.C. § 146 to review decisions in interference proceedings declared after September 15, 2012.

WilmerHale represented the appellee Japanese Foundation for Cancer Research.

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May 6, 2015 4:30 PM

Dyk, J. Affirming the denial of a preliminary injunction against the marketing of a drug. The patentee lacked a likelihood of success in proving inducement of infringement where the drug label, although allegedly alluding to an infringing use of the drug, did not promote or encourage that use. "This requirement of inducing acts is particularly important in the Hatch-Waxman Act context because the statute was designed to enable the sale of drugs for nonpatented uses even though this would result in some off-label infringing uses." Newman, J., dissented.

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May 6, 2015 2:05 PM

Prost, C. J. Affirming summary judgment that claims were invalid as indefinite. The specification failed to disclose an algorithm to provide structure for various computer-implemented means-plus function elements. "A microprocessor or general purpose computer lends sufficient structure only to basic functions of a microprocessor. All other computer-implemented functions require disclosure of an algorithm.

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May 4, 2015 12:44 PM

Prost, C. J. Affirming summary judgment dismissing false patent marking and state law claims. The plaintiff had not suffered "competitive injury" necessary to have standing to assert a false marking claim. See 35 U.S.C. § 292(b). "We hold that a potential competitor may suffer competitive injury if it has attempted to enter the market. An attempt is made up of two components: (1) intent to enter the market with a reasonable possibility of success, and (2) an action to enter the market."

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