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May 17, 2012

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Comments

It seems like Newman unnecessarily conflates invalidity with the damages judgement. Can't the damages stand and the invalidity only be applied to future infringing acts? I did not see in the write up above where it says that Fresenius no longer needs to pay.

Dear Not Happy:

Not sure but generally if there is a final judgment for money damages the outcome of a re-examination invalidating the patent would not change that. However, invalidation would be grounds for having a permanent injunction lifted, and for voiding payment of a royalty going forward (depending on the outcome of the prior litigation).

So a good outcome for Fresenius.

Thanks for the comment.

Maybe, the conflict between the decision from the board of USPTO and the CAFC can be moderated, if the first litigation involves damage claim, in the stage of claim construction, the court use different rule to construe the claims from in the re-examination, the claim interpretation may narrow the claim scope considering the prosecution history so as to overcome the prior art. Under this claim interpretation,
there maybe no infringement exist, which will get, in some extent, the same results as the rejection of the claims by the re-examination.
In addition, the passive nature of judicial determination, (something like, no trial without complaint) will make the determination results common.
Give a example, if a first patent litigation merely involves patent infringment and damage claims, the defendant did not defense with invalidation of the patent (or merely provide very weak evidence for invalidation), then the district court determines that the patent is infringed and grant the $$$ damage. During the infringement litigation, the defendant instituted a re-examination. in the end the board of USPTO reject the claims of the patent. there is not related to estople, final judicial determination, preclusion issue, the currently system runs very properly.

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