Here’s the latest.

Inventorship as the Wind Blows

Reported by Dennis Crouch at Patently-O

Egenera can proceed with its infringement claims against Cisco Systems after a reversal by the Federal Circuit of the invalidation of its patent. Cisco Systems claimed that Egenera removed an inventor from the patent to facilitate arguments within a potential IPR. As Dennis Crouch recounts, the lower court ruled that a certain term connected the inventor to the patent, so the lower court judicially estopped Egenera from reinstating the inventor to the patent. This estoppel resulted in an invalidation the patent under pre-AIA 102(f). However, the Federal Circuit determined that the removal of the inventor was in error, so the district court must allow the amendment of the inventorship of the patent and reconsider validity and infringement.

Section 256 of the Patent Act was modified in the AIA (2011) to remove “deceptive intent” from the inventor-correction provision. The statute now allows correction of an “error” of omitting a named inventor and does not require that “such error arose without any deceptive intention on his part“. The statute goes on to explain that the error “shall not invalidate the patent in which such error occurred if it can be corrected.” Although Energa’s patent is a pre-AIA patent, the modification here applies to old patents.

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Baxalta Wins New Try at Hemophilia Drug Patent Infringement Suit

Reported by Perry Cooper at Bloomberg Law

Perry Cooper recaps an opinion released this week from the Federal Circuit. Baxalta appealed the construction of two terms by Federal Circuit Judge Timothy B. Dyk who volunteered to hear this case as a visiting judge for the District of Delaware. The Federal Circuit determined that the constructions were inconsistent with the claim language, and reversed the ruling.

The appeals court decision is a “rare instance in which the Federal Circuit has reversed one of its own judges sitting by designation,” Dechert LLP partner Kassie Helm in New York said via email. “Most if not all of J. Bryson’s rulings have been summarily affirmed.”

As Baxalta’s claims rose and fell with the construction of these two terms, Baxalta can now continue their infringement claims against Genentech.

For more information on this case, see our coverage.

Federal Circuit Affirms Dismissal of Patent Infringement Complaint Under Res Judicata

Reported by Joseph Robinson, Robert Schaffer, and Dustin Weeks at IPWatchdog

In a recent decision, the Federal Circuit affirmed that res judicata allowed the Northern District of California to dismiss patent infringement claims against the California Air Resources Board. Joseph Robinson, Robert Schaffer, and Dustin Weeks note that the plaintiff, Dr. Sowinski, had previously filed a complaint in the Central District of California with the same claims as the present case. The Central District of California dismissed the first complaint with prejudice, and the Federal Circuit affirmed the decision. Dr. Sowinski appealed the dismissal of the present case as the lower court dismissed the first case on procedural grounds.

Because Dr. Sowinski alleged the same infringing activity of the same patent against the same defendant, the Federal Circuit affirmed the Northern District of California’s decision finding that the district court had properly applied res judicata to dismiss the case.

For more information on this case, see our coverage.