BLG prevails in inter partes reexamination; patent claims upheld

June 5, 2009 | Intellectual Property News
In a statistically rare event, BLG attorneys have achieved a decision upholding the patentability of the claims of a patent related to a laryngoscope for their client Verathon. After asserting the patent against others in litigation, an inter partes reexamination request was filed to challenge the validity of the patent. During the reexamination process, BLG submitted about 400 new claims for evaluation, securing the patentability of nearly all of them. On June 5, 2009, the USPTO issued a Right of Appeal Notice indicating that the vast majority of the claims submitted in reexamination were allowable. In more than 90 percent of inter partes reexamination cases, there are no claims that remain patentable. The success in this case is unusual among inter partes reexaminations, placing BLG client Verathon in a strong position to enforce its key technology related to video laryngoscopes.

BLG wins summary judgment of patent invalidity in ski patent defense

June 5, 2009 | Intellectual Property News
BLG defended its client K2 by obtaining an order invalidating a patent that had been asserted against K2. The lawsuit was filed by Paul Nelson, who owned a patent related to a short, wide ski. Mr. Nelson had succeeded in licensing the patent to others before suing K2 in a patent infringement lawsuit filed in the Western District of Washington, case number C07-1660RSL. After evaluating K2’s motion for summary judgment, the court concluded that Mr. Nelson’s continuation-in-part patent was only entitled to the benefit of its actual filing date and not that of any of its parent applications. The court further found that Mr. Nelson had sold skis in accordance with the patent more than a year before that date, despite Mr. Nelson’s argument that his sales were merely experimental. With the patent invalidated, K2 prevailed on all claims against it and the case was dismissed.

BLG obtains favorable claim construction ruling and settlement in patent infringement defense

February 5, 2009 | Intellectual Property News
BLG attorneys defended their client Progressive International in a patent infringement case related to avocado slicers. The patent was originally licensed to Progressive, then terminated. Progressive redesigned its product to avoid the patent, with the assistance of BLG attorneys. The patent owner later sued Progressive while claiming that the redesigned product infringed the patent. BLG obtained a key ruling during a Markman hearing to interpret the meaning of a patent, leading to a dismissal of the claims against Progressive.

BLG wins Federal Circuit appeal in defense of patent infringement

January 8, 2009 | Intellectual Property News
BLG attorneys prevailed in the defense of a patent infringement action asserted against BLG client Arctic Cat. In this action, BLG obtained a dismissal of the action on procedural grounds related to failure to participate in pretrial events such as a pretrial conference, and for failure of a corporate party to be represented by counsel. The plaintiff appealed the dismissal of the action, which was on the merits and with prejudice. After briefing and arguing the case at the Federal Circuit Court of Appeals, the dismissal of the case was affirmed and all claims against Arctic Cat dismissed.

BLG wins patent appeal in European Patent Office

January 1, 2009 | Intellectual Property News
BLG attorneys, together with associate counsel in the U.K., prevailed in a key opposition proceeding at the European Patent Office in a matter related to a laryngoscope patent owned by our client Verathon. In an important decision relating to this key video laryngoscope technology, the central claims of the patent were confirmed as being valid.

Court of Appeals alters test for design patent infringement

October 1, 2008 | Intellectual Property News
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. Second, the accused product is evaluated to determine whether it includes the so-called points of novelty. If not, then the product would not infringe the design patent even if it otherwise seemed quite similar. If the accused product included the points of novelty, then the design patent as a whole would be compared to the accused product as a whole to determine whether an ordinary person would be confused into thinking that the two designs are the same. The accused product would infringe the patent if it both included the points of novelty and had an overall appearance that was confusingly similar to the design in the patent. In Egyptian Goddess, Inc. v. Swisa, Inc., http://www.cafc.uscourts.gov/opinions/06-1562.pdf, the Federal Circuit Court of Appeals abandoned this technical approach to design patent infringement that dissected the design patent for points of novelty. Instead, patent infringement is to be evaluated by comparing the design patent with the accused product, while at the same time keeping an eye on the previously existing designs so that the new components of the patented design can be afforded greater weight. This simultaneous evaluation of the patent, the accused product, and the prior art brings its own challenges, and the manner in which the courts implement it will continue to evolve. While the distinction may eventually be more procedural than substantive, conventional wisdom seems to be that design patents will be stronger with this decision. The points of novelty test had been used in many cases to whittle a design patent down to a few trivial points of distinction that were arguably missing from the accused product. This new test considers the design patent as a whole and should lead to a broader scope of protection for design patents.

BLG settles patent infringement dispute involving ozone-based cleaning equipment patent

August 29, 2008 | Intellectual Property News
BLG achieved a favorable settlement in its representation of Ozone International in a patent infringement matter that enforced Ozone’s patents related to ozone-based cleaning equipment against Amfil Technologies. Ozone owns several patents in the field of ozone cleaning products, including patents asserted in this action for a combined high pressure water and low pressure ozone sprayer.

BLG settles patent infringement dispute involving football patent

June 10, 2008 | Intellectual Property News
BLG attorneys represented Jarden, Coca-Cola, and Disney in the defense of claims of patent infringement related to the sale of baseballs and footballs having lenticular panels. The products at issue were generally decorative specialty products having images of characters or products incorporated into the covering. BLG attorneys searched for and found prior art that would invalidate the patent, leading to a confidential settlement on favorable terms.