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The Washington University in St. Louis (WashU) filed a suit in the District of Delaware alleging that Finnegan client Wisconsin Alumni Research Foundation (WARF) had breached an inter-institutional agreement between the two parties, which pertained to a jointly owned pharmaceutical method of use patent for the treatment of renal osteodystrophy. Because the inter-institutional agreement between WashU and WARF was executed in 1995 and the patent was licensed to Abbott in 1998, Finnegan moved for summary judgment and dismissal on the grounds that WashU’s contract claims were barred by the applicable statues of limitations. The presiding judge dismissed the case, finding no evidence of inequitable, unfair, or misleading conduct on the part of WARF in its interactions with WashU, and that all claims were time-barred by the applicable statutes of limitations.

In a copyright infringement case involving an architectural work, plaintiff Humphreys & Partners Architects sued Finnegan client Lessard Design, Inc., alleging that Lessard’s apartment building infringed Humphreys’ condominium building design. Besides being high-rises, Humphreys alleged both buildings included two elevator cores connected by a fire or service corridor; a barbell-shaped floor plan thicker on the ends and thinner in the middle; corner units with diagonal entry access; and projecting elements at the cornice of the roof line. Lessard successfully moved for summary judgment for non-infringement in the Eastern District of Virginia, which found that none of the architectural elements asserted by Humphreys against Lessard were individually protectable. The court further ruled that even assuming the overall arrangement of those elements was protectable, the buildings were no more similar “than any two randomly selected high-rise multi-family projects would be based on building code regulations and industry standard practices.” Humphreys then appealed to the Fourth Circuit, which affirmed the lower court’s ruling. The Eastern District of Virginia (E.D. Va.) also granted attorneys fees and costs to Lessard as the prevailing party.

The Federal Circuit handed Finnegan client NOVA Chemicals a victory on appeal, finding Dow Chemical’s patent claims to be invalid. In a prior appeal, the Federal Circuit held that NOVA had infringed Dow’s ethylene polymer patent claims and that NOVA had not established that those claims were invalid for indefiniteness. In a subsequent appeal concerning the district court’s award of supplemental damages, the Federal Circuit held that an intervening Nautilus decision by the Supreme Court had changed the law of indefiniteness and that the prior panel had applied a test for indefiniteness that had been repudiated by the Supreme Court. Finding that Dow’s patent claims were indefinite under the correct test, the Federal Circuit reversed a $30 million supplemental damage award and dismissed Dow’s cross-appeal for enhanced damages as moot.

Finnegan client Asetek was granted a permanent injunction and enhanced supplemental damages against CMI USA, Inc. (the USA distributer of Cooler Master) for its willfully infringing sales following a jury verdict in Asetek’s favor. Asetek, which owns two patents related to computer/data center liquid cooling, sued CMI USA for infringement of both patents. Following a nine-day trial, the Northern District of California jury was out less than one day and: (1) found infringement by every accused CMI USA product; (2) awarded Asetek a 14.5% royalty rate and damages; (3) rejected CMI USA’s assertion of invalidity based on alleged anticipation; and (4) found the existence of every secondary consideration of non-obviousness listed on the verdict form (favoring Asetek’s non-obviousness position). In deciding the post-trial motions, the presiding judge entered the permanent injunction requested by Asetek; found that CMI’s post-verdict sales were willful, and awarded Asetek an enhanced 25.375% royalty on those sales; and rejected CMI’s motions for new trial and judgment as a matter of law (JMOL).

In separate decisions from the U.S. District Court for the Northern District of Illinois and the American Arbitration Association (AAA), Finnegan successfully prevented a larger competitor from manufacturing or selling a generic version of Finnegan client Cumberland Pharmaceuticals’ flagship product, Acetadote®, a life-saving intravenous formulation of acetylcysteine for the treatment of acetaminophen overdose. Cumberland’s current patent-protected formulation is free of the EDTA chelating agent, which is an improvement over earlier formulations sold by Cumberland and others. First, in the AAA decision, the arbitrator issued a final award in favor of Cumberland enjoining the competitor and further awarded attorney’s fees and costs to Cumberland. Second, in the Abbreviated New Drug Application (ANDA) district court case, following claim construction rulings favorable to Cumberland, the generic company conceded infringement. A trial proceeded on the generic’s three validity attacks—derivation, anticipation, and obviousness— which were all rejected by the presiding judge. The district court’s ruling thus confirms Cumberland’s patent protection for ten years.

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.

Finnegan client S3 Graphics Co. Ltd. ("S3G"), a subsidiary of HTC Corporation, filed an action in the District of Delaware against defendants Advanced Micro Devices, Inc., ATI Technologies ULC, and ATI International SRL. S3G sought a declaratory judgment, including damages, on defendants’ claims to ownership of or license to certain valuable S3G patents related to high-performance graphics processing for video games and other graphics intensive software applications. The court ruled on summary judgment that S3G owns the disputed patents, and that the defendants have no ownership interest or express license to the disputed patents.

The District of Delaware ruled in favor of Finnegan client Forest Laboratories in a Hatch-Waxman litigation against generic pharmaceutical defendant Mylan, Inc. The suit involved Savella®, a medicine containing the active ingredient milnacipran, which is used for the treatment of fibromyalgia. The court held the asserted claims of all three patents litigated at trial valid and infringed, denying defendants claims that the patents were obvious and anticipated by prior art. In the words of the court, "[a]t best, the teaching of the art was and is multidirectional, with no clear motivation to pursue milnacipran as an effective treatment for fibromyalgia. Notably, there were no FDA-approved treatments for fibromyalgia at the time of the patents-in-suit. Consequently, the inventors' development of treating fibromyalgia with milnacipran was the antithesis of anticipation and obviousness as discussed in more detail below." The court entered final judgment and ordered the FDA not to approve Mylan’s Abbreviated New Drug Application (ANDA) for generic milnacipran until after the expiration of the last Forest patent litigated at trial.

Finnegan filed on behalf of client Borealis AG, two inter partes review (IPR) petitions supported by extensive expert declarations challenging a patent held by Berry Plastics Corp. The patent is directed to polypropylene formulations and products, which are often used for insulated foam drinking cups. Rather than responding to the grounds raised, Berry Plastics filed statutory disclaimers to cancel all 64 claims challenged by the IPRs.

In two related appeals from inter partes review (IPR) proceedings, Finnegan successfully persuaded the U.S. Court of Appeals for the Federal Circuit to vacate and remand the Patent Trial and Appeal Board’s (PTAB) decisions that adversely affected three patents related to coaxial cable connectors owned by client PPC Broadband. In the first appeal, for a majority of the claims, the Federal Circuit agreed with PPC that the PTAB overlooked a key claim limitation, and it therefore vacated and remanded the obviousness decision. For the remainder of the claims in that appeal, the court affirmed the claim construction ruling as the broadest reasonable interpretation, but noted that it would not be the “correct” construction had the Phillips standard applied. Finally, the court also agreed with PPC that the PTAB erred in disregarding much of the evidence on secondary considerations, including the commercial success of the accused products. In the second appeal, the court likewise agreed with PPC and vacated the PTAB’s claim construction as being unreasonable, stating that while the construction may have been the broadest interpretation, it was not the broadest reasonable interpretation in light of the specification. The Federal Circuit thus vacated and remanded the invalidity determinations in both appeals.


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