Denial Of Preliminary Injunction Affirmed Because Evidence Did Not Support That Prior Litigation Was A Sham

In Judkins v. HT Window Fashion Corp., No. 07-1434

(Fed. Cir. Apr. 8, 2008), the Federal Circuit affirmed the

district court's denial of appellant HT Window Fashion

Corporation's ("HT") request for a preliminary

injunction because HT failed to demonstrate a likelihood of

success on the merits. The Court also denied appellee Ren

Judkins's ("Judkins") request for attorney

fees.

Judkins developed a process for manufacturing window

coverings in the early 1990s, commissioned his lawyer to draft

a patent application in 1991, but did not file the application

(U.S. Patent Application No. 08/412,875 ("the '875

application")) until 1995. In 1996, an inventor filed a

patent application for a similar product that issued the

following year as U.S. Patent No. 5,692,550 ("the '550

patent"). In early 1998, the assignee of the '550

patent, Newell Window Furnishings, Inc. ("Newell")

filed a patent infringement suit asserting the '550 patent

("the Springs litigation"). During the Springs

litigation, Judkins's invention was analyzed as prior art,

and he and his attorney testified in the case. The trial court

in the Springs litigation determined that the '550 patent

was not anticipated by Judkins's invention because Judkins

had suppressed, concealed, or abandoned the invention due to

the four -year delay in filing the application. The district

court, however, invalidated the '550 patent on other

grounds.

Also in 1998, Judkins sought an interference between

Newell's '550 patent and his own U.S. Patent

Application No. 08/756,282 ("the '282

application"), which was a continuation of his '875

application. In 2001, the Board ruled that Judkins had

abandoned his invention and awarded priority against him. At

that point, both Judkins and Newell were in a difficult

position, because the Board had ruled that Judkins had

abandoned his invention and Newell had no valid patent because

the Federal Circuit had affirmed the trial court's holding

of invalidity. In response to the Board's ruling, Judkins

filed a suit under 35 U.S.C. 146 in the Western District

of Pennsylvania seeking to overturn the Board's decision

and seeking a "When genuine adversaries reach a mutually

agreeable compromise and present their agreement in detail to

the court, and no fraud or other problems militate against the

agreement's enforcement, public as well as private

interests are best served by giving effect to the

settlement." Slip op. at 10.determination that the

invalidated '550 patent was...