Fresh From The Bench: Recent Patent Cases From The Federal Circuit

The Supreme Court agrees to hear Akamai and Nautilus cases.

ln Akamai Limelight Networks, Inc.,692 F.3d 1301 (Fed. Cir. 2012), a 6-5 majority of the en banc Federal Circuit significantly altered the landscape of indirect patent infringement by making it easier to prove induced infringement in patent cases involving multiple actors. A majority of the court overruled BMC Resources, lnc. v. Paymentech, L.P.,498 F.3d 1373 (Fed. Cr.2007), in holding that a patentee claiming induced infringement no longer has to show that a single entity is liable for direct infringement. The majority opinion in Akamai established what has been called an "inducement only rule," which makes the inducing entity liable on greatly enlarged grounds, such as potentially advising or encouraging acts that may constitute direct infringement, even though there is no single party, alone or vicariously, that is a direct infringer of the patented method.

ln Nautilus, lnc. v. Biosig lnstruments, 1nc.,715 F. 3d 891 (Fed. Cir. 2013), the issue is whether the Federal Circuit's acceptance of ambiguous patent claims with multiple reasonable interpretations - so long as the ambiguity is not "insoluble" by a court - defeats the statutory requirement of particular and distinct patent claiming. This case has localflavor because Nautilus is based in Vancouver and the case is being handled by our colleague John Vandenberg of Klarquist Sparkman.

Pacific Coast Marine Windshields Limited v. Malibu Boats. Fed. Cir. No. 2013-1199 (1/8/2014)

This is a design patent infringement case in which the Circuit reversed summary judgment of non-infringement. The district court found that prosecution history estoppel barred the infringement claim. The panel rejected Pacific's contention that prosecution history estoppel did not apply to design patents but reversed the summary judgment based upon its holding that the accused design was not within the scope of the subject matter surrendered during prosecution.

The patent applicant filed an application directed to several different embodiments of a marine windshield. ln response to a restriction requirement in which the examiner determined that there were five patentably distinct groups of designs, the applicant elected the embodiment of Figure 1, amending the claim to recite "the ornamental design of a marine windshield with a frame, and a pair of tapered corner posts," removing the original claim language stating "with vent holes and without said vent...