by LHerrmann | Dec 10, 2008 | Legal Developments - Patent Law
This from Ury Fischer of Lott & Friedland: “The National Patent Jury Instructions Project, an informal committee of patent litigators and district judges assembled by Chief Judge Michel of the Federal Circuit, has just released for public comment a new set of Patent Model Jury Instructions. The model instructions can be downloaded here: Model Patent Jury Instructions. Although the instructions will not be endorsed by the Federal Circuit, they do represent the consensus of a committee of national scope and are intended to be a helpful model for judges and lawyers. The model instructions draw from draw from previous sets of instructions developed by committees in the Northern District of California, the Federal Circuit Bar Association, the AIPLA and the District of Delaware. The period for public comments runs through February 1, 2009. Comments should be sent to: [email protected].”
by LHerrmann | Dec 9, 2008 | Uncategorized
The Intellectual Property Law pamphlet authored by the Florida Bar IP Committee is now available in PDF format at the Florida Bar website (look under Public Information/Consumer Information) and printed copies are on the way. Read about it here in the Naples Daily News. The printed pamphlets are expected any day now. For more information or to order copies, contact Dana Larichita at 850-561-5767 or Mirieth Valenciano at 850-561-5773 at the Florida Bar.
Thanks to everyone who contributed to the pamphlet over the years!
by LHerrmann | Nov 18, 2008 | Legal Developments - Patent Law
Ury Fischer has brought to our attention a recently-filed suit in which Microsoft seeks a declaratory judgment of patent invalidity, unenforceability and non-infringement against WebXchange. The asserted basis for the DJ action is a series of three patent infringement suits that WebXchange filed against Microsoft customers based on the customers’ use of web services created using Microsoft’s Visual Studio software. According to Microsoft’s Complaint, a copy of which can be accessed by clicking here, the three customers had demanded that Microsoft indemnify them and “Microsoft is facing potential indemnification demands from additional customers who are sued by WebXchange for patent infringement in the future.” Ury comments that this “is a declaratory judgment action against a patent holder who has repeatedly sued Microsoft’s customers for infringement based in Microsoft products but has carefully avoided suing or even contacting Microsoft. It is an interesting case to follow to see how far the courts are willing to push the envelope on declaratory judgment in the wake of the Medimune case.” Ury has agreed to keep us posted on interesting developments in this case.
by LHerrmann | Nov 3, 2008 | Legal Developments - Patent Law
Doug McDonald, of Carlton Fields in Tampa, has provided this concise summary of the Federal Circuit’s recent decision in In re Bilski:
On October 30, 2008, an en banc Federal Circuit overruled portions of its opinion in State Street Bank and Trust Company v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998), and narrowed the availability of patent protection for business methods. The majority opinion, written by Chief Judge Michel and joined by eight of the other eleven active judges on the Federal Circuit, cited the Supreme Court decisions in Gotttschalk v. Benson, 409 U.S. 63 (1972), Parker v. Flook, 437 U.S. 584 (1978), and Diamond v. Diehr, 450 U.S. 175 (1981), approving of the “definitive test” set forth in those decisions for determining the Section 101 patent eligibility of a process. The court stated that a process is “surely patent-eligible if: (1) it is tied to a particular machine or apparatus, or (2) it transforms a particular article into a different state or thing.” This overrules the portion of its opinion in State Street Bank that held a claim to be patent-eligible if it “produces a useful, concrete and tangible result.”
This decision leaves for future resolution the meaning of “tied to a particular machine” and could simply result in a reworking/reissuance of business methods patents so that the claims are tied more directly to actual machines. The decision also puts at risk a broad range of computer-implemented and information-based patents that have been issued over the past 10 years. It is possible, and even likely, that Bilski will seek certiorari, but careful reliance of the Federal Circuit on specific precedent from the Supreme Court may cause the Court to pass on the issue at this time. Between the impact of this decision and the enormous expansion of design patent rights in the recent Egyptian Goddess decision, patent attorneys, and especially patent litigators, may be very busy in the future.
by LHerrmann | Oct 31, 2008 | Legal Developments - Patent Law
Doug McDonald and Gary Mayback have brought to our attention that, in its 9-3 en banc decision in In re Bilski, the CAFC decided yesterday that, under 35 USC 101, business methods can be patented only if they involve use of a machine or a transformation of matter. Doug will be posting his analysis of this decision next week. Anyone else who wants to comment on the case should feel free to use the blog’s Comment feature to post their thoughts as a comment on this post or on Doug’s post once it is up.
