The patent statutes allow the award of attorneys’ fees in a patent infringement lawsuit to the prevailing party—plaintiff or defendant—in exceptional cases. The Federal Circuit Court of Appeals has long held that a prevailing accused infringer must prove the plaintiff's position was objectively unreasonable and that it was subjectively (that is, knowingly) asserted in bad faith. Some companies that have been sued for patent infringement contend that the standard should be lowered, making it easier for a successful defendant to recover its fees when defending against a weak patent infringement case. Now the Supreme Court has agreed to consider that question.
On May 21, 2012, the Supreme Court ordered the Federal Circuit to reconsider a decision related to a method for allowing Internet users to view copyrighted material for free in exchange for watching advertisements. At stake is whether a process of this sort can be patented at all, even if it is new and not obvious in view of the prior art.
President Obama signed the America Invents Act into law on Friday, September 16th. The act makes several significant changes, including scrapping the first to invent system in favor of a first to file system, imposing surcharges on filing, modifying certain litigation and reexamination practices, and curtailing litigation based on false patent marking.
After many years of confusion, the Supreme Court has agreed to review a lawsuit addressing the standard of intent required for inducement of infringement. This pivotal case may resolve once and for all whether a party must intend to infringe a patent in order to be liable, or whether it is sufficient to be aware of the possibility of infringement by third parties.
In a closely-watched case, the Ninth Circuit Court of Appeals has ruled that the resale of software may not be insulated by the first sale doctrine.
In a long-awaited decision, the Supreme Court upheld the patentability of software and business method inventions. In Bilski v. Kappos, the Supreme Court was presented with the question of whether certain types of patents for "processes" are patentable, ruling that the particular invention at issue was not patentable but signaling that software and business methods still qualify for patent protections.
After several months of turmoil and the development of a cottage industry in lawsuits accusing companies of falsely marking their products with improper patent numbers, the Federal Circuit Court of Appeals has restored a bit of order.
For more than a century, the patent statutes have made it illegal to include a patent number on a product that is not actually covered by the patent. 28 U.S.C. 292 provides that the use of a patent number, or the words “patented” or something similar, on a product or in advertising for the product, is illegal if it is done with an intent to deceive the public into thinking that the product is patented when it actually is not. The same restriction applies to the use of terms such as “patent applied for” or “patent pending.”
The test for design patent infringement has been well understood to include certain discrete steps. First, the court must determine the “points of novelty” of the patented design. Because a design patent often includes a mix of elements that are new and old, functional and aesthetic, the court has been required to separate the new and aesthetic features from the rest of the design.