The most difficult issue in many patent cases is claim construction, that is, the court’s interpretation and articulation of what exactly the claims of the patent mean. Interpreting patent claims is hard work. It usually involves consideration of technical jargon that, especially when significant time has passed since the patent was filed, may be obsolete or just plain awkward. As a result, courts don’t always get claim construction right the first time. Indeed, a substantial percentage–depending on whom you ask, the anecdotal figure is around 50 percent–of trial court claim constructions are successfully challenged on appeal.

The high reversal rate for claim construction is especially problematic because most claim construction decisions cannot be immediately appealed. Interpreting the claims is only the first step in the infringement analysis. After they’re interpreted, that construction has to be applied to the accused product or process. Most often that’s something the jury is supposed to decide, which means you may have to go through a long and costly trial before a judgment is entered. That judgment–either that the patent claims are infringed or they are not–is what the U.S. Court of Appeals for the Federal Circuit (the “Federal Circuit”) ultimately reviews.

However, if the claim construction was wrong in the first place, the jury’s verdict on infringement is usually wrong, too. That means a second trial will likely be necessary, which results in more work for the courts, more time lost in litigation, and more money spent on lawyers. The rub, argue critics, is that much of this additional expense and inefficiency could be avoided if claim construction opinions could be appealed prior to a final judgment on infringement.

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If you help your industry adopt your patented technology as a standard and then sue companies that use the standard, bad things can happen. You might lose your patent rights, be sued or prosecuted for antitrust violations, unfair competition, and fraud. Even if you ultimately win your case at trial … …

In an apparent retaliatory lawsuit, Chris Ohman has sued the Lance Armstrong Foundation (”LAF”) for infringing a design patent to its “BARKSTRONG” dog collar design. In his complaint, filed in the Northern District of Oklahoma last week, Mr. Ohman claims to own patent rights to the use of the LAF’…

Mr. Ohman responded to yesterday’s posting, expressing concerns as to the accuracy of its content. In an email message to me, he said that his design patent was amended because the USPTO simply asked him to choose one design of the three he originally filed, that he was not “…

On Monday, an Oregon jury returned a verdict for Adidas awarding it damages of almost $305,000,000 in a trademark dispute against Kansas-based Collective Brands Inc., which operates Payless ShoeSource. The jury found that Payless had infringed Adidas’ “Three Stripe Mark” and “Superstar” trade dress by selling shoes that bore confusingly similar marks. The jury also found Payless liable for unfair and deceptive trade practices and trademark dilution.

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It’s a simple fact that the United States Patent and Trademark Office (the “USPTO”) is inundated with patent applications. Given the sheer volume of applications, patent examiners can only spend a limited amount of time examining those applications. Further, given the fact that an applicant for a patent does …

The U.S. Supreme Court handed a big victory to Quanta Computer on Monday when it held that the doctrine of patent exhaustion barred LG Electronics’ claims against it.

In doing so, the Supreme Court reversed the U.S. Court of Appeals for the Federal Circuit’s previous decision that patent exhaustion did not apply to method claims and extended that doctrine to licenses for products that “substantially embod[y] a patent.” This case is likely to substantially change the playing field for patentees seeking to monetize their patents in a vertical industry value chain.

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There are a lot of strong opinions with respect to software patents. Many people are highly critical of them because they feel that copyright alone is enough protection for software. The argument goes that copyright is a better fit than patent law.

For example, copyright is self-executing. That means that you get a copyright in your program as soon as you write it. In contrast, a patent is obtained only after filing and prosecuting - and in the process spending a lot of money on - a patent application.

Moreover, copyright is supposed to protect a specific expression - not broader ideas found in that expression. One major argument against software patents is, that in order to maintain the lightning pace of software innovation, developers must to be free to use general concepts pioneered by others so long as they don’t copy the actual code.

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The Federal Circuit’s recent decision in Aristocrat Technologies will require software patent drafters to take more care to describe the algorithms covered by their software–or risk patent invalidity. (See Aristocrat Technologies.) The court held that expert testimony that a programmer would know how to write code to perform a …

A patent is a deal with the U.S. government. In exchange for elevating the knowledge of the public in general by publishing a description of an invention, the government gives, in return, a “monopoly.”

But the monopoly in the patent world is a different animal than what most would consider a true monopoly. When most people think about a monopoly, they think of the ability of one person or company to assert dominance in a certain market by being the only seller of a product. That is not the case in the patent world. A patent does not guarantee any dominance in any market whatsoever; in fact, it does not even give the patent holder the right to make the patented product at all.

While seemingly counterintuitive, this is the way the patent system has to work because of the nature of patentable inventions. Sir Isaac Newton, arguably one of the greatest scientists and inventors of all time, perfectly but unintentionally characterized the patent system when he said, “If I have seen further it is by standing on ye shoulders of Giants.”

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