June 2009

A recent blog commented on a case where the defendants were lawyers. We now have a case, Tailored Lighting Inc. v. Osram Sylvania Products, Inc., where the lawyers for the defendant are deposing lawyers for the plaintiff. Yes, indeed. It seems that the lawyers have reached a point where they only need lay persons (f/k/a “laymen”) to pay their bills.

The Bilski decision is to patent attorneys what politics is to late night television – an unending source of material.

A school of barracudas, having entered into a feeding frenzy, will turn on their own weakened or injured members, when the original prey has been consumed. Apparently, it is the same with land barracudas, i.e. lawyers.

Quickie LLC v. Greenberg Traurig LLP et al.

In patent law, a “product” or “article” claim covers (well, duh) a product. A “process” claim covers a method of doing something – like making a product. A product claim is infringed by the unauthorized making, using, selling, offering for sale or importing the patented product. A method claim is infringed by the unauthorized practice of the patented process. A third, less well-known, type of patent claim is the “product-by-process” claim which covers a product produced by a particular process¹. What infringes a product-by-process claim?

Recently, we noted that one of the most contentious provisions of the proposed patent reform act pertained to the manner in which damages would be determined. At one point, the proposed senate bill would have required that a “reasonable royalty” be applied “only to the portion of the economic value of the infringing product or process properly attributable to the claimed invention’s specific contribution over the prior art.” As we pointed out previously, the courts are already doing this.

A recent blog post dealt with the question of what happens when the prevailing patentee in an infringement action is denied a permanent injunction and the infringer continues to infringe.

It now seems, based on an unbroken string of two (2) cases, that the court directs the parties to attempt to negotiate a royalty for future use of the patented invention. If the parties are unable to reach an agreement, the court – meaning the judge – can impose a royalty rate for any future use by the defendant-infringer (slimeball).