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You are here: Area of Law Intellectual Property Patents Patent Litigation McDermott Will & Emery: IP Update, Vol. 15, No. 12, December 2012

McDermottWillEmeryLogoIP Update, Vol. 15, No. 12, December 2012

McDermott Will & Emery
December 28, 2012

In this Issue:


  • Federal Circuit Rules It’s Own Standards Apply When Considering Preliminary Injunctions
  • Preliminary Testing of Medical Devices in Animals Enables Their Use in Humans
  • Rare Finding of Non-Obviousness Based Solely on Secondary Considerations
  • Section 256 Inventorship Claim Does Not Accrue Until the Patent Issues
  • Infringement of Method Claims Requires Proof of Actual Performance Rather than Mere Capability
  • Section 102(g) Is Still Available as a Defense for Pre-AIA Patents
  • Six-Year-Long ITC Investigation Concludes with Finding of Obviousness
  • Patent Infringement Claims Not Precluded by Related Trademark Infringement Claims in Prior Suit
  • Reissue Is Not Remedy to Terminal Disclaimer
  • **WEB ONLY** Diagnostic Claims For Assessing the Risk of Down’s Syndrome Are Not Patent Eligible
  • Wrong Claim Construction Leads to Erroneous Infringement and Validity Findings
  • Federal Circuit Mows Down Lower Court’s “Into Engagement with” Claim Construction


  • 40-Year Delay Smacks Down Monetary Damages, but Not Permanent Injunction, in Fraternity and Sorority Trademark Suit Against Paddle Manufacturer


  • Lack of Striking Similarity Ends The Big C Copyright Infringement Action in the Ninth Circuit
  • D.C. Circuit Holds Restitution Must Be Based on Loss of Victim, Not Defendant’s Gain

Trade Secrets

  • Pleading Unjust Enrichment Does Not Support a Claim for the Underlying Trade Secret Misappropriation


  • Joint DOJ-FTC Workshop Explores Competitive Impact of Patent Assertion Entities
  • FTC Signals Stricter Stance on Injunctions for FRAND-Encumbered Patents
  • Walker Process Standing Affirmed for Direct Purchaser Antitrust Plaintiffs

Cert Alert

  • U.S. Supreme Court to Rule on “Pay-for-Delay” Antitrust Issue

Patent Litigation News