It is a defense to a claim of patent infringement that the patent-in-suit is invalid. For this reason, defendants are constantly exercising their imaginations in the search for new grounds for holding a patent invalid. Recently, one such defendant succeeded in killing a patent on the grounds that it was based upon an application which had been filed one day too late and then revived. The defendant (Aristocrat v. IGT) argued that revival was only allowed in cases of “unavoidable” delay, while the applicant could only show its delay was “unintentional” – a lower standard. The trial court agreed with the defendant, overturning the decision of the Patent Office (which had granted the revival), and killed the patent.
The patent owner-plaintiff appealed to the CAFC (the patent appeals court) which reversed, holding that “improper revival” is not a “cognizable defense” and was not justified in equity.
The defendant has now requested rehearing before the entire panel of the court (a “rehearing en banc”). The issue to be determined is which violations of the Patent Act would be sufficient to render a patent invalid during litigation.
Both sides of the eternal struggle – lowlife infringers versus virtuous patentees – are awaiting the decision of the court. Will the present decision of the CAFC be upheld or will a new plague be visited upon the houses of the patentees?
What a mess on patents versus possible patent infringement.
I would like to investigate or read a blog about how many cases there are and have been in the past regarding patent infringement.
There is a company called Legal Metric that compiles statistics from patent cases. According to Legal Metric over the past five years, the district courts have issued around 3000 decisions on summary judgment motions in patent cases. Many cases are dismissed before a judge ever renders a summary judgment decision (if a summary judgment motion is made at all), so I think you could safely say there are more than 1000 patent cases filed every year. In terms of on-going patent law blogs, there is a great one called Patently O, if you really want to read about patent law.