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Today's Agenda

Today's Agenda. Warner- Jenkinson . Also (take home?) O2 Micro. Read especially if you are thinking about doing DOE. SSI/AMI v. TEK: T he jury's verdict on claims anticipated and claims not infringed. Instant Patent Law Teams - When do we meet next? Meetings

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Today's Agenda

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  1. Today's Agenda • Warner-Jenkinson. Also (take home?) O2 Micro. Read especially if you are thinking about doing DOE. • SSI/AMI v. TEK: The jury's verdict on claims anticipated and claims not infringed. • Instant Patent Law • Teams - When do we meet next?Meetings • APJED (? pajed, japed, depaj...)+HC&R • SHARC+HC&R • ~9:45 Adjourn RJM - IP: Sci Ev in Pat Lit - Spring 2013

  2. Warner-Jenkinson Tell the story and - Favor PO - Favor AI RJM - IP: Sci Ev in Pat Lit - Spring 2013

  3. Warner-Jenkinson - Quotes Scott: Analysis of patent claim will inform 7.2 Patrick: Application to chemical composition 3.2 Hernan: Equivalence not absolute to be considered in vacuum 3.2 Helio: Burden on PO to establish reason for amendment 7.1 Jenn: proper time for evaluating is at infringement 7.1 Rob: ph of approximately 6.0 to 9.0 infringed under DOE 2.2 Emily: equivalence refers to an element or part 4.2 David: equivalency determined against context of patent, prior art 3.2 Asa: presume substantial reason related to patentability 6.1 Chinyere: intent plays no role 7, heading B Andy: things equal to the same are not equal to each other 3.2 RJM - IP: Sci Ev in Pat Lit - Spring 2013

  4. Warner-Jenkinson B.  Select a different passage, one that raises a question in your mind, from either the decision or the commentary.  Quote the passage.  Use ellipsis to keep it from being too long but this time I leave it to you to decide what is "too long."  Give the page:column citation.  State your question.  Speculate on a possible answer and then discuss why you might be wrong.  Use an appropriate label for each of the four parts of your answer to B:  Quote; Question; Answer?; Wrong? Your submission and your comments on a classmate's. RJM - IP: Sci Ev in Pat Lit - Spring 2013

  5. O2 Micro Another example of how a DOE argument comes into being. Read it at home? Now at DOCS/O2MIC.PDF (Don't look at the postscript on the last page until you've read the whole thing.) RJM - IP: Sci Ev in Pat Lit - Spring 2013

  6. Instant Patent Law What you already know 7-8 - The major issues of patent law 26 - specification, n. (teaches, v.) and claims (n. and v.) 28-29 - independent and dependent claims, 'scope' 32 - claim chart to compare claim and [prior art, accused product] 34-35 - comprising, etc. - definitions 39-40 - the bicycle and the wheel 41-42 - After "I say 'You infringe!'" what happens? 43-44 - In the PTO 45 - The person of ordinary skill 46 - Remedies Caveat: the statute has changed (but not in any way that affects your simulations) Things I may not have said before, in whole or in part 2 - Big Kids Syndrome 17 - What is PRIOR ART 20 - To Search or Not To Search 33 - Parts of a Claim (terminology) 38 - "Patent" (abstract) RJM - IP: Sci Ev in Pat Lit - Spring 2013

  7. SSI/AMI Verdict - 1 X XX X X X X X Yes, this was very hard work. Headache producing, too. But not busy work, not a waste of your time. Rather: the start of aquiring an important skill, and a litmus test. If you want never to have to do this kind of thing again, then patent law, whether as a lawyer or an expert, is probably not for you. X=not infringed: 36 and 45-47 X= anticipated 22-24 and 38 RJM - IP: Sci Ev in Pat Lit - Spring 2013

  8. SSI/AMI Verdict -1 Why did 27 survive the anticipation challenge when 38 did not? Why was 34 found to be infringed when 36 was not? If you were SSI/AMI or TEK, what would you do now? How did you approach this question? What do you do to understand what is MISSING (and -> anticipation)? PRESENT (and -> non-infringement)? RJM - IP: Sci Ev in Pat Lit - Spring 2013

  9. SSI/AMI Verdict - 2 Asa'sQuestion 36 is a claim drawn to a BOTTLE (for use in 28-27 TRD) 38: mentions - but does not claim! - the compressor or the bottle. Prosecutors: why not? Other anomalies? RJM - IP: Sci Ev in Pat Lit - Spring 2013

  10. SSI/AMI Verdict -3 36: not infringed because _"Z"_ is included Hernan: Substantially opposes Patrick: subst. opp. Jenn: subst. opp. Rob/Scott: subst. opp. Emily: claims the bottle RJM: compare to surviving claim 34 Asa: subst. opp. David: plastic bottle? disposableness? Andy: subst. opp. Chinyere: ?? RJM: subst. opp. RJM - IP: Sci Ev in Pat Lit - Spring 2013

  11. SSI/AMI Verdict -4 45-47: not infringed because _"Z"_ is included Hernan: disposable Patrick: disposable Jenn: intake IN port RJM: 38 (anticip so infr ignored by jury?) also has intake and exhaust claimed separately Rob/Scott: port with both intake & exhaust IN Emily: the container? disposable? Asa: disposable David: plastic bottle? disposable? Andy: intake DIRECTS, exhaust RECEIVES and DIRECTS Chinyere: exhaust? RJM: disposable? TRD incl container? RJM - IP: Sci Ev in Pat Lit - Spring 2013

  12. SSI/AMI Verdict -5 22-24: Anticipated because _"Q"_ is missing Hernan: Port? Valve? Patrick: Port Jenn: Port Rob/Scott: valve (incl) but no man.override (of 25) RJM: but 25 not litigated so its validity is unknown; instead compare to 27 or 42 Emily: Port Asa: Valve RJM: valve is claimed; for anticipation there has to be something MISSING compared to a surviving, similar claim. David: pressure relief override switch Andy: Bottle; valve Chinyere: housing? port? RJM - IP: Sci Ev in Pat Lit - Spring 2013

  13. SSI/AMI Verdict -6 38: Anticipated because _"Q"_ is missing Hernan: port? Patrick: housing+recep? disposable? Jenn: Receptacle (but has port) (27-valid: has port+recep; 22:-invalid: recep without port) Rob/Scott: compressor (compared to 39) RJM: again, 39 not litigated; look to 27, 42* Emily: has port but it is not 'in reservoir or recep' Asa: housing? NOT disposable? RJM: true, disposable claims apparently survived the validity challenge but compare 38 to 27, 42* David: pressure relief override switch Andy: bottle Chinyere: (has port, unlike 1) RJM: compare 38 to 27, 42* RJM - compressor * 27 and 42 are similar to 38 (indep, TRD) but survive validity challenge RJM - IP: Sci Ev in Pat Lit - Spring 2013

  14. Next Week 1. Short presentations. Team by team. Each person should present ~ 2 slides and speak for ~5 minutes. 30 minutes per team MAX. More info. on next slide and in ASSIGN/0515.HTM 2. Recent Daubertdecision and your notes from Ms. Shah's talk. (Please read them beforehand and bring them with you.) RJM - IP: Sci Ev in Pat Lit - Spring 2013

  15. Next Week (cont'd) The first slide MUST be the reformatted claim with the language that you particularly care about highlighted in some way. After that, explain your selected issue, with reference to the claim language. Keep the slides simple, clear, and useful. Use animation if you want to amplify something before starting a new slide. You should also go through the claim and explain how the actual THING works, with reference to claim language or without, as common sense dictates. You will want to explain the technology. You may want to explain why the patent has market share (which may involve explaining the prior art), and anything else you think an expert will be asked in the simulation. The order of these things - after the first slide - is up to you. Talk it through before writing. Decide what goes when by talking. Really. Talk first, and many times, before writing. Always. For everything. Everyone should. Their writing and speaking would improve vastly. I include myself in 'everyone.' RJM - IP: Sci Ev in Pat Lit - Spring 2013

  16. Slides from last week RJM - IP: Sci Ev in Pat Lit - Spring 2013

  17. The Patent-in-Suit and Noninfringement read on If an element that is in claims 36-45-46-47 is not in the accused device(and not in the other claims), then claims 36-45-46-47 do not __________ the accused device. The other claims do. Visual representation Because they include element Z, claims 36-45-46-47 are not infringed. Find element Z. RJM - IP: Sci Ev in Pat Lit - Spring 2013

  18. The Patent-in-Suit - Invalidity read on If an element is MISSING from claims 22-23-24-38 but is found in the other claims, then claims 22-23-24-38 __________ the prior art but the other claims do not. Visual representation: Because they do not include element Q, claims 22-23-24-38 are anticipated. What is element Q? RJM - IP: Sci Ev in Pat Lit - Spring 2013

  19. The Field Trip The Verdict. (Also interesting: Questions from the Jury) x=not infringed x=invalid (anticipated) X X X X X X X X • Look at the patent. Why those 4 claims and not others? • This is a question about the elements of the claims. • Or rather, missing elements. • Unless someone already figured that out, answer during the break. Collaboration is OK. RJM - IP: Sci Ev in Pat Lit - Spring 2013

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