August 1, 2013

Federal Circuit Decisions for Week Ending July 19, 2013

In re Adler, No. 2012-1610, (July 18, 2013) (precedential) (3-0) Application No. 10/097,096

Key point:

  • If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability

In re Giuffrida, No. 2012-1692, (July 18, 2013) (nonprecedential) (3-0) Application No. 11/432,583

Key point:

  • The Board’s findings that a reference expressly or inherently discloses a claim limitation must be supported by substantial evidence.

Calico Brand, Inc. v. Ameritek Imports, Inc., Nos. 2008-1324,-1341, (July 18, 2013) (nonprecedential) (3-0) Patent Nos. 6,318,992, 6,325,617, and 6,814,569

Key points:

  • Returning accused inventory and switching to a non-infringing substitute does not support a finding of willful infringement as a matter of law.
  • Market share data cannot demonstrate an absence of acceptable non-infringing substitutes, where 20-30 brands of comparable products are available to consumers.

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