Patent Litigation and Strategy

Kimberly A. Moore, Chief U.S. Circuit Judge

Timothy R. Holbrook, University of Denver College of Law

John F. Murphy, U.S. District Judge

Andrew R. Sommer, Greenberg Traurig, LLP

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Table of Contents

The 6th Edition contains all of the recent developments in patent law and litigation. This edition discusses recent changes in the patent litigation landscape, including the ascendance of the U.S. District Court for the Western District of Texas as a forum of choice for patentees (and the attendant controversies), updated statistics on patent litigation, and relevant changes to the Federal Rules of Civil Procedure and local rules. The 6th Edition also elaborates the aftermath of the Supreme Court’s decision TC Heartland on venue, including the Federal Circuit’s decision in In re Juniper Networks, Inc. as an exemplar of the court’s approach and willingness to consider motions to transfer cases out of the Western District of Texas. The 6th Edition also includes recent cases on important topics, such standing for licensees to sue (Azure Networks, LLC v. CSR PLC’); the assignor estoppel (the Supreme Court’s decision in Minerva Surgical, Inc. v. Hologic, Inc.); and the role of pretrial orders (Insite Vision Inc. v. Sandoz, Inc.). The caselaw on the rebuttal of the Festo presumption of prosecution history estoppel continues to evolve, which is reflected in Ajinomoto Co. v. ITC. Because litigation over subject matter eligibility under 35 U.S.C. § 101 has exploded, the casebook now includes Berkheimer v. HP Inc., an important case discussing whether patentable subject matter is purely legal or contains factual components. The 6th Edition also includes the Supreme Court’s decision in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the Court’s first opinion interpreting the new prior art provisions under the America Invents Act. Additionally, the Federal Circuit has continued to develop the law surrounding the nexus requirement for the secondary considerations of nonobviousness. The 6th Edition includes FOX Factory, Inc. v. SRAM, LLC, which elaborates (with some controversy) on the presumption of nexus and the requirement of coextensiveness. This edition also contains a new case, BlephEx, LLC v Myco Indus., Inc., which demonstrates the Federal Circuit’s more recent approach to preliminary injunctions. 

The 6th Edition has also been streamlined to shorten and simplify the text by removing discussions of issues that are no longer controversial, such as the role of Markman hearings, the Supreme Court removal of laches as a defense in SCA Hygiene, prosecution laches, and aspects of ANDA litigation.

Although the focus of the casebook remains patent litigation in district courts, the final chapter on inter partes review has been updated to include the Supreme Court’s decision in Thryv, Inc. v. Click-to-Call Technologies, LP, addressing the ability of the Federal Circuit to review the PTAB’s decision whether to institute review.
 

Learn more about this series.