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Today’s Agenda

Today’s Agenda. Revisit, Review, Remark upon Last week. Markman Hearings, Glaxo v. Apotex one more time History: Walterscheid on inherent v. created rights and Constitutional history. Your Part of the Course: Step N-2 --The Cover Sheet Next Week. Markman.

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Today’s Agenda

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  1. Today’s Agenda • Revisit, Review, Remark upon Last week. Markman Hearings, Glaxo v. Apotex one more time • History: Walterscheid on inherent v. created rights and Constitutional history. • Your Part of the Course: Step N-2 --The Cover Sheet • Next Week Adv.Pat.Law Seminar - rjm

  2. Markman • Comments on the IPD litigation (as opposed to the Fed Cir decision)? • Judge Linn, Dictionaries, and Pandya’s Excellent Defense Adv.Pat.Law Seminar - rjm

  3. Glaxo v. Apotex • A review of many important patent law concepts. • “Unpublished” opinions: what good are they? Why are they issued? • Claim evolution during prosecution • The non-infringement argument • The Canadian judgment? • (and cf. the IPD Canadian counterpart patent…) • Inherent anticipation? Adv.Pat.Law Seminar - rjm

  4. The Flurry over Uncitable Decisions The court affirmed the ruling of the lower court, finding that an unpublished opinion which was on point operated to bar her claim; the court also found that a court rule that did not allow courts to rely on unpublished opinions as precedent was unconstitutional. [LEXIS Summary] Anastasoff v. United States, 223 F.3d 898, 56 U.S.P.Q.2d (BNA) 1621, 2000-2 U.S. Tax Cas. (CCH) P 50705, 86 A.F.T.R.2d (RIA) 5724 (8th Cir. Mo. 2000) Adv.Pat.Law Seminar - rjm

  5. The Flurry over Uncitable Decisions A LEXIS search in genfed-rules turned up NO Fed. Cir. Rule about uncitable decisions. But the DC Cir, which amended its rules in December 2002, is more helpful. http://www.cadc.uscourts.gov/common/refdesk/ruleplan/finalrules2002.pdf Page 98 Adv.Pat.Law Seminar - rjm

  6. Do you know your court rules? For example, Rule 32 covers Forms of Appellate Briefs. (This is where you will find what I call “standard appellate brief format.”) http://www.fedcir.gov/pdf/rule32.pdf If you’ve never seen the Rules of Appellate Procedure or the Fed.Cir.’s local rules, you might want to start here: http://www.fedcir.gov/pdf/contents.pdf Adv.Pat.Law Seminar - rjm

  7. Glaxo v. Apotex • Your non-infringement arguments. How persuasive were they? • The Canadian Decision. • “n1. Apotex also relies on a Canadian federal court decision finding that the Canadian equivalent to the '181 patent was not infringed by Apotex's CA product. We note that the Canadian judgment construing the Canadian patent and applying Canadian patent law does not control our decision here.” [spanning the columns, page 3] But aren’t you – as a human being- just a little curious to compare the US and Canadian claims asserted in the two lawsuits? Adv.Pat.Law Seminar - rjm

  8. Glaxo v. Apotex Inherent Anticipation? Look at page 3, right column of the Glaxo Decision (also reproduced on the next slide) How do we judge anything about a claim, whether validity or infringement? What is step 1? Adv.Pat.Law Seminar - rjm

  9. If Dr. Siegel HAD followed Ex. 1 exactly, would Apotex automatically win? What is the merit of PO’s argument that he followed it LESS THAN exactly? Adv.Pat.Law Seminar - rjm

  10. History – 1 Walterscheid on Inherent v. Created Rights and Constitutional History Best argument that 1-8-8 reaffirms the existence of INHERENT RIGHTS of authors and inventors? Best argument that it does not? Adv.Pat.Law Seminar - rjm

  11. Reminder 1-8-8 ARTICLE I. Section 8. The Congress shall have Power *** [clause 8] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Adv.Pat.Law Seminar - rjm

  12. History – 1 Walterscheid on Inherent v. Created Rights and Constitutional History What did “SCIENCE” mean in 1789? Adv.Pat.Law Seminar - rjm

  13. Becky C. 2 (or n.8) Ben S. 4 (or n.27) Brian P. 6 (or n.41) David A. 8 (or n.56) Liz D. 10 (or n.69) Ruhi K. 12 (or n.84) Spencer G. 14 (or n.94) Susan S. 16 (or n.112) Adv.Pat.Law Seminar - rjm

  14. Cover Sheets • Philosophy • Skimmable • Single sheet-1 side • Loaded with Visual Aids • JUST what the reader • NEEDS to know • NOTHING superfluous • NOTHING repetitive • NOTHING confusing • NO jargon • EVERYTHING thought through Assume the reader is 1) interested, 2) alert, 3) reads linearly, or if not, is willing to go backwards, and 4) knows as much patent law as the good students who have completed the Michigan 4-credit course. Adv.Pat.Law Seminar - rjm

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  17. Next Week • Inequitable Conduct – 1 • Kayton et al on Prosecution Is Susan ready for the pre-draft meeting?tbl Adv.Pat.Law Seminar - rjm

  18. Next Week – New Reading Material? • Inherent or Created Rights (history of 1-8-8 and even the Statute of Monopolies (1623)) OR • Prosecution Article by Kayton+ (figuring out claim interpretation before there are allowed claims!) OR • Goodson’s View (that the words ‘interference and senior/junior party’ could have relevance to the question of identifying the 2 LIABILITY issues in a PATENT INFRINGEMENT suit). More claim interpretation. And more jurisdiction. Talbert (Fed.Cir.2002) Adv.Pat.Law Seminar - rjm

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