Federal Circuit
February 13, 2012
The Federal Circuit Affirms an “Exceptional” Case
In Marctech v. Johnson & Johnson the Federal Circuit reviewed whether Chief Judge Herndon of the Southern District of Illinois erred when he found the case was “exceptional” and awarded $3,873,865.01 in fees on that basis. In a unanimous opinion written by Circuit Judge O’Malley, the Federal Circuit panel affirmed the district judge’s opinion. Title 35 of the US Code Section 285 gives district court judges the discretion to award reasonable attorney’s fees in “exceptional cases.” A case is deemed exceptional when there has been “willful infringement, fraud, or inequitable conduct in procuring the patent, misconduct during litigation, vexatious or unjustified litigation...Additionally, a court can award attorney fees under § 285 if the action is brought in subjective bad faith and is objectively baseless.”
December 28, 2010
Kathleen O’Malley Joins Federal Circuit
Just before the end of the “lame duck” session, the Senate gave the U.S. Court of Appeals for the Federal Circuit a Christmas present by confirming Kathleen M. (Kate) O’Malley as the next member of that court. Acting quickly, Chief Judge Rader swore her in earlier today. Circuit Judge O’Malley served for the past sixteen years as a District Judge in the Northern District of Ohio. Notably, she is the only judge on the Federal Circuit who has served as a full-time trial judge. Judge O’Malley graduated from Case Western Reserve University School of Law in 1982. She was in private practice in Cleveland and Chief Counsel in the Ohio State Attorney General's Office. She has taught Patent Litigation as a Distinguished Visiting Jurist at Case Western Reserve. She has also been on the faculty of the Intellectual Property Seminar for Federal Judges co-sponsored by the Federal Judicial Center and the Berkeley Center for Law and Technology and the American Law Institute-American Bar Association program on “Trial of a Patent Case."
October 22, 2010
Can I Really Be Infringing a Patent if I Did This Before the Inventor Did?
Counterintuitive though it may be, the answer is “yes.” While the American patent system is called a “first to invent” system (unlike the "first to file" systems in almost every other country), that description applies only to those who apply for patents on their inventions. Those who pioneer a new technology but do not seek to patent it may be unpleasantly surprised to find that someone else is able to come along later, patent the same technology, and even sue the earlier user for infringement. This helps explain why some companies engage in “defensive patenting” and why others publish inventions for the purpose of putting them in the public domain.
September 30, 2010
International Trade Specialist Jimmie Reyna Nominated to Federal Circuit
Yesterday, President Obama nominated Jimmy V. Reyna to be a Circuit Judge on the United States Court of Appeals for the Federal Circuit.
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