Federal Circuit: October 2012 Archives
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October 2012 Archives

It is often said that patent law is the sport of kings. O.k., it's not, but it should be.

Patent attorneys cost a great deal more than ordinary counsel, as they typically hold degrees in both law and a science. For small time inventors, this often results in a cost benefit analysis when it comes to patent enforcement. It also begs the question: what good is a patent if you can't afford to enforce it?

One could image a number of effects that this might have on American innovation and invention. For one, inventors might just become discouraged. Why continue to innovate when someone else with more money will simply replicate? Another possibility is that inventors will be forced to chose between either allowing infringement, or selling their patent at a reduced value to larger companies with bigger budgets.

Yesterday, the Federal Circuit released a titillating published opinion that addressed the merits of adjustable height workstations with, wait for it ... vertical beams. Wow.

The opinion itself wasn't very remarkable. It was a review and affirmation of the USPTO's rejection of reexamined patent claims for Flo Healthcare. There was some enlightening discussion of "means-plus-function" versus descriptive terms, but that wasn't the true gem of the opinion. Judge Plager's concurrence was.

You could tell that this lawsuit was absurd from the caption alone. The list of defendants stretched over seven pages. The list of council, in much smaller type, filled four more pages. The list of defendants’ firms included a Who’s Who of BigLaw, including MoFo, Latham & Watkins, and Kirkland & Ellis. The defendants included domestic carriers and handset manufacturers (Sprint, T-Mobile, AT&T, and Motorola), software providers (Microsoft and Yahoo!) and foreign carriers (Vodaphone and T-Mobile).

The plaintiff was a wee little patent holding company, creatively named Technology Patents, LLC of Maryland.

You only get one shot. There is no second bite at the apple.

Whatever your idiomatic cliché of choice is, the principles of res judicata and claim preclusion mean you better get it right the first time. Bowers Investment Company just learned that lesson the hard way, as they will not be able to pursue a $60,000 claim that they missed in their initial trip to the courthouse.

In 1993, the Federal Aviation Administration leased a building from Bowers Investments. Though the terms of the contract called for rent payments to be made in arrears, in practice the payments were made on the first of the month for the current month. In 2006, the parties terminated the lease. Bowers later filed a claim with the contracting officer for one month's rent and damages to the property.

Federal Circuit Reverses Another Apple Samsung Injunction

In September, it was the Galaxy Tab. This week, it's the Galaxy Nexus smartphone. Considering Samsung's rate of injunction-reversing success, the company's entire product line could be back on the market before the holiday rush.

Thursday, the Federal Circuit Court of Appeals reversed and remanded Judge Lucy Koh's preliminary injunction barring Samsung from selling its Galaxy Nexus smartphone, finding that Judge Koh abused her discretion in entering the injunction.

Can a Federal Judge Get a COLA?

Federal judges often make less money in their life-tenured appointments than they would in the private sector. While they receive relatively comfortable salaries — the current salary is $174,000 for district court judges and $194,000 for circuit court judges — they have been fighting for years for annual cost of living adjustments (COLAs) that other federal employees receive.

(If those COLAs had not been withheld, the current salary for district judges would be $247,086 and $261,968 for circuit judges, according to the D.C. bar association.)

Friday, the Federal Circuit Court of Appeals ruled in a 10-2 opinion that federal judges are entitled to COLAs because withholding the pay increases effectively diminishes their compensation in violation of the Article III of the Constitution.

Federal Circuit Remands Galaxy Tab 10.1 Injunction

You know you're arrived in litigation when your ongoing dispute has its own hashtag. If Morrison Foerster's Michael Jacobs and Quinn Emanuel's Kathleen Sullivan didn't already know that they were big time, the fact that #AppSung keeps popping up on Twitter is confirmation of their legal rockstar status.

And Jacobs and Sullivan keep cranking out litigation hits.

Abbott Gets a Second Shot with Glucose Monitoring Patents

Convenience can be a patentable quality when creating a glucose monitor.

Friday, the Federal Circuit Court of Appeals found that the USPTO's rejection of Abbott Diabetes Care's glucose monitor technology was unreasonable due in part to the inconvenient wires protruding from the non-Abbott glucose monitors.