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On behalf of a third-party requester, Finnegan initiated ex parte reexamination proceedings against a patent owned by Ablaise Ltd. The patent had been asserted against numerous companies including several of our clients. The firm’s representation in the reexamination resulted in the PTO finally rejecting claims 1-6 of the patent. The pending reexamination allowed the firm to successfully obtain a stay of the litigation proceedings by Ablaise against Financial Fusion. After reexamination had been granted, the District Court of the District of Columbia also found the same claims invalid, and that decision was affirmed on appeal to the Federal Circuit.

The Patent Trial and Appeal Board (PTAB) reversed a rejection of all patent claims in a patent application related to important neurodiagnostic device features for concussion and other brain abnormality assessments. Finnegan argued throughout the examination that the examiner had interpreted a claim limitation too broadly, and failed to appreciate the advance that the application claimed. After oral argument, the PTAB judges agreed and reversed the examiner's rejection on all grounds.

The U.S. Court of Appeals for the Federal Circuit, in an en banc opinion, confirmed the existence of a separate written description requirement that ensures that inventors have actually invented and described the subject matter claimed in their patents. The decision reversed a jury verdict against Finnegan client Eli Lilly and Company.  Lilly had previously been found liable for infringing Ariad’s ’516 patent, and the jury had awarded Ariad a multi-million dollar verdict.  The en banc opinion held that the asserted claims of the ’516 patent failed to satisfy the written description requirement of section 112 and were thus invalid. 

In a case Finnegan handled from inception through appeal, the U.S. Court of Appeals for the Federal Circuit affirmed a damages award of $6.5 million in favor of firm client Telcordia Technologies against Cisco Systems.  At trial in the District of Delaware, the jury had found for Telcordia on all claims, concluding that Cisco willfully infringed two Telcordia patents.  On appeal, the Federal Circuit rejected Cisco’s challenge to the validity of one of Telcordia’s patents, and it affirmed the district court’s damages decisions —specifically, that in addition to the $6.5 million awarded by the jury, Telcordia was also entitled to recover both prejudgment interest and an ongoing royalty.

The U.S. Court of Appeals for the Federal Circuit affirmed a district court’s claim construction and grant of summary judgment of noninfringement in favor of Finnegan client Pergo, L.L.C. on five patents directed toward systems and methods for joining flooring panels.  The affirmance is the culmination of a protracted litigation initiated over a decade ago by patent holder and competitor Välinge, AB (and its licensees).  The court affirmed per curiam without opinion under Rule 36, resulting in a complete victory for Pergo.

A unanimous Federal Circuit panel affirmed a district court ruling of non-infringement for Finnegan client Trex, in Nystrom v. Trex.  Trex has the questionable distinction of having made new law, not once but twice, in the course of Nystrom’s running feud, in which Trex prevailed in three judgments in the Eastern District of Virginia and in three subsequent appeals to the Federal Circuit.  In its first groundbreaking holding, Trex successfully sought rehearing by the Federal Circuit, which vacated an initial 2004 panel decision reversing the district court’s non-infringement judgment, and issued a new decision following the Phillips decision and holding that the claims must be construed consistent with the specification.  Trex broke new ground again in 2009 when the Federal Circuit affirmed another judgment of non-infringement.  Trex had argued that the earlier decisions controlled, yet, the district court declined to give them res judicata effect.  The district court ultimately ruled in Trex’s favor on other grounds.  The Federal Circuit now holds that res judicata applies with respect to claim limitations that are the basis for a non-infringement judgment, even if the product is allegedly changed with respect to other claim limitations.  Nystrom is prohibited from proceeding against Trex for any product that does not include the claim limitations that were the basis for the earlier non-infringement judgments, even under the doctrine of equivalents.

The Federal Circuit gave Finnegan client Lawson Software, Inc. a nearly complete win against ePlus, Inc., which had sued Lawson in district court, seeking $24 million in damages and an injunction against Lawson’s software sales. The district court had found that Lawson infringed five claims of two different patents and had granted a permanent injunction.  In the appellate case, the Federal Circuit determined that ePlus was not entitled to any damages, affirming the district court’s findings that ePlus’s expert report was faulty and that striking damages was an appropriate sanction. The Federal Circuit reversed the district court’s findings of infringement on four of the five patent claims, finding two invalid and two not infringed, resulting in Lawson’s main software product being clear of any infringement claim.

Finnegan client FedEx was accused of patent infringement in two separate litigations in the Northern District of California, where IpVenture asserted two related patents directed to processes used in connection with tracking packages with the aid of a device called “SenseAware,” which enables users to track the location and certain conditions of related packages. On behalf of FedEx, Finnegan filed an inter partes reexamination on one patent, and an inter partes review (IPR) on the other at the U.S. Patent and Trademark Office (USPTO). The USPTO granted both petitions, and the Patent Trial and Appeal Board (PTAB) affirmed the rejection of all claims of the reexamined patent and invalidated all claims of the second patent during the IPR. The district court cases were stayed during the USPTO proceedings and during IpVenture’s appeal to the Federal Circuit, which affirmed both of the PTAB’s decisions.

The U.S. Court of Appeals for the Federal Circuit dismissed for lack of Article III standing an appeal against Finnegan client Wisconsin Alumni Research Foundation (WARF) brought by consumer-advocacy organization Consumer Watchdog (CW). The appeal arose from an inter partes reexamination filed by CW against WARF’s U.S. Patent No. 7,029,913 (the ’913 patent) directed to human embryonic stem cell cultures. Following the reexamination, the Patent Trial and Appeal Board (PTAB) found the ’913 patent claims patentable over the asserted prior art, and CW appealed. On appeal, in a case of first impression, the Federal Circuit agreed with WARF and amici the United States and the U.S. Patent and Trademark Office that CW lacked standing to pursue its appeal. The Federal Circuit concluded that CW’s disagreement with the Board did not invade any legal right conferred by the inter partes reexamination statute and that CW had not identified any particularized, concrete interest in the patentability of the ’913 patent as, for example, a competitor, licensee, or stem-cell researcher. Because CW did not identify any injury in fact flowing from the Board’s decision, the Court dismissed its appeal for lack of standing.

Finnegan client POSCO won a petition for mandamus in the U.S. Court of Appeals for the Federal Circuit, successfully challenging a district court ruling modifying the protective order to permit use of highly confidential U.S. discovery materials in foreign litigations. The Federal Circuit concluded that, when deciding whether to modify the protective order in such a manner and circumstance, the district court should have considered the factors set out in the U.S. Supreme Court’s decision in Intel Corp. v. Advanced Micro Devices, Inc. The Federal Circuit granted POSCO’s mandamus petition, vacated the district court’s order permitting foreign cross-use of POSCO’s discovery materials, and remanded. Finnegan represented POSCO both in the mandamus petition and in the underlying district court litigation.


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