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March 2015 — "Reasonably Certain" is Definite Enough

Patents are required to be written in a way that puts the public on notice of the boundaries of the claimed invention.  More specifically, the patent claims must “particularly point out and distinctly claim the subject matter which the applicant regards as the invention.”  This is known as the definiteness standard.  If a patent does not meet this standard, then it is invalid for indefiniteness and cannot be enforced.
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February 2015 — Claim Construction-Finding of Subsidiary Facts Reviewed for Clear Error

During patent litigation, the trial court determines the scope of the patent rights by determining what the claims in the patent cover.  In making this determination the trial court must ascertain the meaning of words and phrases in a process called “claim construction.”  This determination is based on intrinsic evidence (i.e. what is in written in the patent or made of record during the patent application process) or extrinsic evidence (e.g. expert testimony, dictionaries, etc.). Intrinsic evidence is a matter of law whereas extrinsic evidence requires the court to make findings based on facts presented by the parties at trial, also known as “subsidiary facts”.
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January 2015 — Full Disclosure Required to Avoid Inequitable Conduct

Patent applicants are required to disclose any publication or other publicly available information that could affect the United States Patent and Trademark Office’s determination of whether the applicants’ invention is novel and not obvious (i.e. material to patentability).  Failure to fully disclose such information by the applicant is known as inequitable conduct which may result in a patent being held invalid and unenforceable despite otherwise being patent worthy. 
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October 2014 — Copyright Law: Digital Transmission Rights after Aereo

Aereo, Inc. is an internet-based company that allows its customers to stream, to their internet-enabled devices, live feeds of free over-the-air television broadcasts.  Aereo does not pay television broadcasters for the rights to transmit the broadcasters’ copyrighted content.  The Supreme Court held that this portion of Aereo’s services was similar to a cable television transmission and as such infringed upon the television broadcaster’s copyright.  In light of this decision, Aereo has suspended its service and is now arguing that it is a cable company to take advantage of the lower statutory fees paid to broadcasters by cable companies.    
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June 2014 — An Exceptional Standard: Lowering the Bar for Awarding Fees in a Patent Infringement Lawsuit

The Supreme Court has recently overturned the current standard for awarding attorneys’ fees to a prevailing party in a patent infringement lawsuit.  In that case, Octane Fitness, LLC v. ICON Health & Fitness, Inc., the Court unanimously agreed that the strict standard of the Court of Appeals for the Federal Circuit (CAFC) unnecessarily limited the ability of the trial court judge to award such fees.
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