Edited by Paul Devinsky and Rita Weeks
Patents / Preliminary Injunctions
Intra-Circuit Split Continues as Federal Circuit Denies Rehearing En Banc
by Kevin P. Shortsle
In denying the plaintiffs' petition for rehearing en banc, the Court of Appeals for the Federal Circuit left open an intra-circuit split as to the proper standard in assessing the likelihood of success factor when deciding preliminary injunction motions in patent infringement cases. Kimberly-Clark Worldwide, Inc. v. First Quality Baby Products, LLC, Case No. 10-1382 (Fed. Cir., Sept. 29, 2011) (order denying rehearing en banc) (Newman, J., joined by O'Malley, J., and Reyna, J., dissenting).
At the district court, plaintiffs Kimberly-Clark won a preliminary injunction. First Quality appealed. On appeal, a panel comprised of Judges Dyk, Friedman and Prost reversed the district court for three of the four patents-in-suit holding that the district court abused its discretion in granting the injunction. The panel found that because First Quality's defenses were not "substantially meritless" or did not "lack substantial merit," Kimberly-Clark failed to establish a likelihood of success on the merits, which precluded the injunction. The Federal Circuit subsequently denied Kimberly-Clark's petition for rehearing en banc.
In dissent, Judge Newman, joined by Judges O'Malley and Reyna, argued that the panel applied a different standard than the traditional standard for issuing preliminary injunctions. Instead of applying the traditional standard that plaintiffs must show they will likely succeed on the merits, the panel adopted a standard that no preliminary injunction will be granted if the defendant raises a defense that does not "lack substantial merit." This standard, Judge Newman argued, is inconsistent with every other circuit court of appeals. All the other circuits require consideration of a movant's likelihood of success on the merits considered with the other equitable factors, i.e., irreparable harm to the movant in the absence of preliminary relief, balance of harms tipping in the movant's favor or whether an injunction is in the public interest. Judge Newman argued that under the panel's standard a preliminary injunction would be denied "merely because the non-movant has raised an argument worthy of consideration." According to Judge Newman, the effect of the "lack substantial merit" standard is that all preliminary injunctions will likely be denied, even when the other factors weigh in the movant's favor.
Judge Newman also argued that the panel's standard is inconsistent with the presumptions and burdens at trial. Since the defendant's burden at trial is the same as their burden during the preliminary injunction stage (clear and convincing evidence), the panel's "lack substantial merit" is in conflict with this evidentiary standard. As Judge Newman stated, "a defense that does not 'lack substantial merit' is of a different order than a defense that is likely to succeed by clear and convincing evidence." Judge Newman also found the panel's opinion inconsistent with the Supreme Court's holding in eBay Inc. v. MercExchange, LLC, in which the Court held that traditional principles of injunctions applied with equal force to patent cases. Finally, Judge Newman argued that the panel failed to demonstrate how the district court abused its discretion in granting the preliminary injunction.
Judge O'Malley, writing separately, argued that the panel deviated from the normal standards of assessing whether to grant preliminary injunctions in three ways: the panel's test of whether the assertion of invalidity is "substantially meritless" is not the same test as the likelihood of success test that controlling rules and case law mandate; the panel relied on one factor rather than balancing all four factors; the panel gave no deference to the district court where deference was due. Consequently, Judge O'Malley argued that the panel's holding "virtually mandates denial of all such [preliminary injunction] motions," which is inconsistent with the other circuit courts of appeals and the Supreme Court's holding in eBay.
Practice Note: At the district court, whether attempting to defeat or obtain a preliminary injunction, both standards should be considered since the outcomes of appeals at the Federal Circuit are panel-dependent.
Patents / Injunctions
Post-eBay Demise of the Presumption of Irreparable Harm for Awarding Injunctive Relief
by W. Sutton Ansley
The U.S. Court of Appeals for the Federal Circuit has now clarified an issue that has festered for the past five years: whether the presumption of irreparable harm for granting injunctive relief survived the Supreme Court's ruling in eBay v. MercExchange. Settling this issue once and for all, the Federal Circuit has concluded that "eBay jettisoned the presumption of irreparable harm as it applies to determining the appropriateness of injunctive relief." Robert Bosch LLC v. Pylon Mfg. Corp., Case No. 11-1096 (Fed. Cir., Oct. 13, 2011) (O'Malley, J.) (Bryson, J., dissenting).
The case was brought by Bosch the alleging infringement of four patents covering "beam-type wiper blades." These "beam blades," which provide better performance during inclement weather than their traditional bracketed brethren, were sold by both Bosch and Pylon. After a jury found infringement by Pylon, Bosch moved for entry of a permanent injunction. The district court denied this motion on the grounds that Bosch failed to demonstrate that it would suffer irreparable harm without a permanent injunction. Specifically, the district court based its determination on three factors: the fact that Bosch had "fail[ed] to define a relevant market; the existence of additional competitors; and the non-core nature of Bosch's wiper blade business in relation to its business as a whole." Bosch appealed.
Before specifically analyzing the district court's decision to deny Bosch's motion, the Federal Circuit addressed the uncertainty surrounding the effect of eBay on the presumption of irreparable harm presumption. Although the Supreme Court's opinion in eBay had expressed that "broad classifications" and "categorical rule[s]" are inappropriate for deciding whether to grant injunctive relief, the Supreme Court did not explicitly address whether a presumption of irreparable harm should still follow from a finding of patent infringement. According to the Federal Circuit, eBay did in fact eliminate this presumption. However, the Federal Circuit went on to caution that eBay did not suggest that courts lean against findings of irreparable harm. Rather, the Federal Circuit cautioned that courts should be mindful of "the fundamental nature of patents as property rights granting the owner the right to exclude."
Having resolved the ambiguity left in eBay's wake,
the Federal Circuit focused on the district court's denial of
Bosch's motion for injunctive relief. According to the Federal
Circuit, the district court's reliance on the three factors
mentioned above amounted to legal error. The Federal Circuit
emphasized that "other infringers ... in the marketplace does
not negate irreparable harm." Moreover, "the fact that an
infringer's harm affects only a portion of a patentee's
business says nothing about whether that harm can be
rectified." In fact, the Federal Circuit found that Bosch
would suffer irreparable harm despite these factors. It based this
finding on evidence establishing "that the parties directly
compete for customers in each of the relevant distribution
channels;" that Bosch had "lost market share" due to
Pylon's infringement; and Pylon's likely inability to
satisfy a monetary judgment against it.
Patent Infringement
Post-Therasense: Inequitable Conduct Really Is a Higher Standard
by Jeremy T. Elman
In its first post-Therasense case (see IP Update , Vol. 14, No. 6) addressing the issue of inequitable conduct, the U.S. Court of Appeals for the Federal Circuit affirmed the district court's holding that an applicant who had intentionally failed to update a Petition to Make Special, in which it sough to expedite examination, did not commit inequitable conduct because the failure was not the type of action that would have prevented the patent from issuing under the heightened standard for inequitable conduct. Powell v. Home Depot, Inc., Case Nos. 10-1409, 1416 (Fed. Cir., Nov. 14, 2011) (Prost, J.).
Michael S. Powell presented a "saw guard" prototype to Home Depot to prevent employees from harm while cutting lumber for customers. After Home Depot ordered eight productions units for use and testing, Powell filed an application for a patent on his saw guard invention. Around the same time and unbeknownst to Powell, Home Depot contracted with another company, Industriaplex, to produce identical copies of Powell's invention for approximately $700 less per unit. Mr. Powell continued to negotiate with Home Depot while prosecuting his patent, but eventually could not reach an agreement.
Powell brought suit against Home Depot, alleging that it infringed his patent, covering radial arm saw guards that are installed in every Home Depot store location throughout the United States. A jury determined that Home Depot infringed and awarded $15 million and damages (later enhanced by $3 million). Later, in a bench trial, the district court determined that Powell had not committed inequitable conduct. Among the issues on appeal to the Federal Circuit, Home Depot challenged the judge's finding of no inequitable conduct.
The inequitable conduct issue focused on Powell's filing of a Petition to Make Special during prosecution, which he filed to seek expedited review on the grounds that his ongoing negotiations with Home Depot obligated him to manufacture and supply saw guards embodying the claims. However, before the petition was granted, it became clear that Home Depot would not be contracting with Powell and would use another company to supply saw guards. Powell did not update his Petition to Make Special to show that he was no longer obligated, and the U.S. Patent and Trademark Office (USPTO) granted the petition.
The district court determined that Powell intentionally failed to inform the USPTO that he was not obligated to manufacture but that Home Depot had failed to prove by clear and convincing evidence that the patent should be unenforceable based on a balance of the equities.
The Federal Circuit, noting that its Therasense decision raised the bar for proving inequitable conduct, held that Powell had not committed inequitable conduct. Rather, the Federal Circuit panel held that Powell's conduct failed the "but-for" materiality standard. Powell's conduct was not the type of "unequivocal act" that was affirmatively egregious misconduct, false as filing an unmistakably false affidavit.
Practice Note: Post-Therasense, a patent applicant's inequitable conduct will render a patent unenforceable only where the patent would not have issued "but for" the inequitable conduct. Even knowingly omitting information to the USPTO will not satisfy this standard absent "affirmatively egregious conduct." For the earlier claim instruction portion of this case, see IP Update , Vol. 14, No. 7. .
Patents / Claim Construction
Claim Construct Tension Persists at Federal Court
by David Beckwith
The U.S. Court of Appeals for the Federal Circuit denied a petition for rehearing en banc, over the spirited dissent of Judges Moore, Rader and O'Malley. The petition sought en banc review of the panel opinion in Retractable Technologies, Inc. v. Becton, Dickinson and Co., ( IP Update , Vol. 14, No. 7) and addressed the claim construction tension between broadly drafted claims and a narrow invention as presented in the accompanying written description. Retractable Technologies, Inc. v. Becton, Dickinson and Co., Case No. 10-1402 (Fed. Cir., Oct. 31, 2011) (Order) (Moore, J., dissenting, joined by Rader, C.J.) (O'Malley, J., dissenting).
In the panel decision, the Federal Circuit had affirmed in part and reversed in part the district court's determination that a syringe body could include a multi-part structure. The panel majority noted that the specification indicates what was invented, and the claim language should not be interpreted to extend the invention beyond that set forth in the written description.
Two separate dissenting opinions were filed from the refusal to grant rehearing. In the first dissent Judge Moore identified this case a vehicle to address two principles: the role of the specification in construing claims and, specifically, whether the invention as described in the specification should be used to rewrite the ordinary meaning of claim language to better capture what was invented and whether deference should be given to the district court in the claim construction process. In answering the first principle, Judge Moore explained that if the claims are broadly drafted beyond what is disclosed in the specification that is a problem of validity, not claim construction. In Judge Moore's opinion, claims should not be rewritten to better conform to what the court discerns to be the "invention" of the patent. Specifically, the plain and ordinary meaning of claim language should not be broadened or narrowed unless the inventor acted as his own lexicographer or intentionally disclaimed claim scope. As explained by Judge Moore, changing the plain and ordinary meaning of claim terms to tailor the scope of the claims to the perceived invention is not supported by the en banc decision in Philips.
In addressing the principle of de novo review of claim construction, Judge O'Malley (who recently arrived at the Federal circuit from the U.S. District Court for the Northern District of Ohio) would revisit and reverse the en banc decision in Cybor Corp. v. FAS Techs., concerning the standard of review applied to district court claim construction decisions. As explained by Judge O'Malley, the U.S. Supreme Court has referred to claim construction as a "mongrel" practice involving both legal and factual inquiries. Yet under current Federal Circuit precedent, zero deference is given to the district court's detailed factual inquiries concerning the point of view of one skilled in the art at the time of the invention.
Practice Note: The two separate dissents from the denial of en banc review, including the views of the chief judge of the circuit, suggest that both legal principles may soon be the focus of additional Federal Circuit or Supreme Court analysis.
Patents/ Indefiniteness
Algorithm Written in Prose Provides Sufficient Structure for a Means-Plus-Function Claim Term
by Theresa M. Dawson
In a patent infringement case involving two touchscreen device patents brought against nine manufacturers and/or sellers of laptop computers, tablet computers and handheld devices, the U.S. Court of Appeals for the Federal Circuit reversed the district court's judgment of invalidity with respect to three claims, but affirmed the judgment of non-infringement as to all defendants. Typhoon Touch Techs., Inc. v. Dell, Inc., et al., Case No. 09-1589 (Fed. Cir., Nov. 4, 2011) (Newman, J.).
The district court's judgment of invalidity was based on its conclusion that the claim term "means for cross-referencing," a term written in the statutory form authorized by 35 U.S.C. § 112 ¶ 6, was indefinite. Typhoon conceded that the structure to support the term is not explicitly disclosed in the specifications of the two patents. The district court referred to this "concession" in its opinion and further relied on Federal Circuit precedent for the premise that a means-plus-function term is indefinite (under 35 U.S.C. § 112, ¶ 2) when the specification "simply describes the function to be performed, not the algorithm by which it is performed." Typhoon appealed.
The Federal Circuit took issue with the district court's apparent narrow definition of the term "algorithm," explaining that the term should be understood more broadly to mean "[a] fixed step-by-step procedure for accomplishing a given result; usually a simplified procedure for solving a complex problem, also a full statement of a finite number of steps." The Court further indicated that a patentee need not include computer code in the specification for a computer-implemented procedure in order to comply with the requirements of § 112, ¶ 2. Instead, a procedural algorithm may be expressed "in any understandable terms including as a mathematical formula, in prose, or as a flow chart, or in any other manner that provides sufficient structure."
Applying these criteria, the Federal Circuit concluded that the term "means for cross-referencing" was supported by sufficient structure in the specifications and thus not indefinite. Specifically, the Court concluded that the specifications of the two patents recite in prose a four-step algorithm for computer-implemented cross-referencing. The Court further found that defendants presented no evidence that a programmer of ordinary skill in the field would not understand how to implement the recited function.
Although it reversed the judgment on invalidity, the Federal Circuit affirmed the district court's holding that the defendants were not liable for infringement. Typhoon stipulated to judgment of non-infringement based on the district court's constructions of three claim terms as requiring a device to actually perform, or be configured or programmed to perform, each of the functions stated in the claims. On appeal, Typhoon argued that the district court injected a "use" requirement into the apparatus claims and that it was sufficient if a device was merely capable of being configured or programmed to perform the functions stated in the claims. The Federal Circuit rejected Typhoon's arguments and confirmed the district court's constructions.
Practice Note: A claim limitation related to a computer-implemented procedure written in statutory means-plus-function form can avoid invalidity for indefiniteness so long as the specification recites clearly in prose or otherwise the steps to be implemented by persons skilled in computer programming.
Patents / Declaratory Judgment Jurisdiction
Licensees Entitled to Seek Declaratory Judgment Despite a License
by Philip Ou
The U.S. Court of Appeals for the Federal Circuit found that the district court erred in granting a motion to dismiss for lack of subject-matter jurisdiction, concluding that a controversy existed notwithstanding an existing license between the parties. Powertech Technology Inc. v. Tessera, Inc., Case No. 10-1489 (Fed. Cir., Sept. 30, 2011) (Dyk, J.).
The plaintiff, Powertech Technology, Inc. (PTI) is a licensee of various patents assigned to Tessera, Inc., including the patent-in-suit, which is directed to a process of semiconductor chip packaging. In 2007, Tessera filed a complaint against various parties before the International Trade Commission (ITC) and in the U.S. District Court for the Eastern District of Texas, alleging infringement of several Tessera patents, including the patent-in-suit, through the importation and sale of certain semiconductor chips. Tessera licensed Powertech to manufacture both of the groups of accused semiconductor chips that were in issue before the ITC and in the Texas action. Though Powertech was not named as a defendant in the above action, some of the accused companies were customers who directly or indirectly purchased their accused chips from Powertech.
During the pendency of the ITC investigation, Powertech continued to make royalty payments "under protest" to Tessera because it believed certain accused chips did not infringe Tessera's patent and that the patent was invalid. Powertech subsequently filed a declaratory action for non-infringement and invalidity of the patent in the U.S. District Court for the Northern District of California. Tessera responded by filing a motion to dismiss for lack of subject-matter jurisdiction; arguing that no controversy could exist so long as Powertech remained a licensee of the patent in question.
The district court granted Tessera's motion, finding that Powertech's products could not have been at issue in the ITC action because "PTI's products [were all] manufactured pursuant to a license with Tessera." The court also concluded that no actual controversy arose from the license agreement itself because Powertech was required to pay royalties irrespective of whether its products were covered by the patent. Finally, the district court, acting sua sponte, held that even if an actual controversy existed, the court would decline to hear the case because judicial efficiency favored hearing the action with the pending E. D. Texas district court action. Powertech appealed.
The Federal Circuit reversed, rebuffing Tessera's argument that Powertech must be in breach of its license agreement to create a case or controversy. Rather, as the Court explained, under the Supreme Court MedImmune decision Powertech need not be in breach of its license to challenge the validity or infringement of the patent. Moreover, the Federal Circuit noted that in the ITC action, Tessera alleged that Powertech had underpaid its royalties or paid them late. These allegations alone created a controversy as to whether certain sales of PTI's products were unlicensed and infringing.
The Federal Circuit also concluded that the dispute between Powertech and Tessera as to whether the license agreement required royalty payments to be tied to valid patent coverage was sufficient to support declaratory judgment jurisdiction.
Finally, the Federal Circuit noted that the district court erred in finding that if a controversy existed, the dispute should be heard as part of Tessera's action in Texas. Reasoning that the forum selection clause in Powertech's license agreement clearly called for disputes to be filed in California, the Court found the district court's refusal of jurisdiction of the action to be an abuse of discretion.
Patents / Inter Partes Reexamination
Inter PartesEstoppel Provision Applies Only After All Appeals Have Been Exhausted
by Amol Parikh
In a matter of first impression, the U.S. Court of Appeals for the Federal Circuit revived the defendant's invalidity case finding that the estoppel provision governing inter partes reexamination is triggered not when the reexamination is completed, but only after all appeal rights have been exhausted. Bettcher Indus., Inc. v. Bunzl USA, Inc. et al., Case Nos. 10-1038, -1046 (Fed. Cir., Oct. 3, 2011) (Linn, J.).
Bettcher filed a patent infringement action against Bunzl alleging infringement of a patent directed to a power-operated knife used principally in the meat packing and other commercial food-processing industries. After Bettcher filed suit, and while the proceedings were pending before the district court, Bunzl requested inter partes reexamination of the asserted patent in the U. S. Patent and Trademark Office (USPTO). In due course, the reexamination was initiated; the examiner ultimately declined to adopt the grounds of rejection proposed by Bunzl and issued a Right of Appeal Notice. Bunzl appealed to the Board of Patent Appeals and Interferences (Board).
When the examiner issued the Right of Appeal Notice, Bettcher requested the district court exclude certain invalidity references under the estoppel provision of 35 U.S.C. § 315(c). Under § 315(c):
A third-party requester whose request for an inter partes reexamination results in an order under § 313 is estopped from asserting at a later time, in any civil action [under the United States patent laws] the invalidity of any claim finally determined to be valid and patentable on any ground which the third-party requester raised or could have raised during the inter partes reexamination proceedings.
Bettcher argued that Bunzl was estopped from asserting these references in the district court because the examiner had determined that the references did not invalidate the claims of the asserted patent. Bettcher argued that the estoppel provision took effect as soon as the examiner finished the reexamination and issued the Right of Appeal Notice. The district court agreed and found that the issuance of a Right of Notice of Appeal "finally determined" the claims to be valid thereby triggering the estoppel provision. As a result, the district court granted Bettcher's request to exclude the references at trial. Bettcher appealed.
On appeal, Bettcher argued that the district court wrongly interpreted the estoppel provision by holding it applies at the conclusion of examination when the examiner issued the Right of Appeal Notice. Recognizing that when the estoppel provision attaches is a question of first impression, the Federal Circuit noted that the parties' arguments require the Court to decide the meaning of "finally determined" in § 315(c) in view of the statute, the legislative framework, the related regulations and the legislative history.
Turning first to the language of the statute, the Court noted that § 315(a) and (b) allow patent owners and third-party requesters to appeal the examiner's decision to the Board and the Federal Circuit. The estoppel provision of subsection (c) falls directly after sections (a) and (b). The Court found that the placement of the estoppel provision immediately after subsections (a) and (b) strongly suggests that the phrase "finally determined" refers to the stage of the proceedings after the events contemplated by subsections (a) and (b) have run their course. Because subsections (a) and (b) each state that the parties may appeal to the Board and to Federal Circuit, the Court found that the plain language of the statute implies that estoppel requires exhaustion of all appeal rights.
Next, the Court analyzed the framework of reexamination proceedings. During an appeal, the Board can assert new grounds of rejection provided that the patent owner has an opportunity to respond. The Court found that because the addition of new grounds of rejection on appeal entitles the patent owner to continue prosecution before the examiner, the structure of the reexamination proceeding suggests that reexamination is not final prior to exhaustion of all appeal rights.
The Court then turned to Bettchers's argument that regulations discussing the Right of Appeal Notice establish that the phrase "final determination" in § 315 refers to the Right of Appeal Notice. Bettcher argued that because 37 C.F.R. § 1.953 and 41.61(a)(2) treat the Right of Appeal Notice as a "final action" and "final decision," the phrase "finally determined" in § 315 must refer to the Right of Appeal Notice. The Court summarily rejected this argument, finding 37 C.F.R. § 1.953 and 41.61(a)(2) in no way address the application of any estoppel and do not purport to interpret or define the statutory language of § 315.
Finally, the Court reviewed the legislative history. The legislative history of an uncodified "fact" estoppel notes that "estoppel arises after a final decision in the inter partes reexamination or a final decision in any appeal of such reexamination." Bettcher argued that this language from the legislative history distinguishes final decisions from reexaminations from final decisions in any appeal of such reexaminations, such that the estoppel provision of § 315(c) should be read to apply as soon as there is a final decision in a reexamination (i.e., Right of Appeal Notice). The Court rejected this argument, going as far as to say it was at a loss to understand how this argument helps Bettcher. Instead, the Court found that the legislative history of the uncodified "fact" estoppel proves that it applies only after all appeals are exhausted and, if anything, it suggests that that the estoppel provision of § 315(c) also applies after all appeals are exhausted.
Patents / Written Description and Trade Secret
Trade Secret or Patent, Not Both
by Hasan Rashid
Delineating patent protection from trade secret protection with reference to the same accused product, the U.S. Court of Appeals for the Federal Circuit upheld a finding of lack of written description support while also finding misappropriation of valid trade secret. Atlantic Research Marketing Sys. v. Troy, Case Nos. 11-1002, -1003 (Fed. Cir., Oct. 6, 2011) (Prost, J.).
Atlantic Research, founded by Richard Swan, owns the patent-in-suit directed to free-floating handguards for rifles. A free-floating handguard solves the problem of attaching an ancillary device to a rifle without touching the rifle barrel. In 2002, Swan met Stephen Troy, who soon became Swan's employee and "right-hand man." Troy signed a nondisclosure agreement as part of his employment. In 2003, however, Swan's and Troy's relationship went sour, and Troy began a new company, Troy Industries, which competes with Atlantic Research.
Atlantic Research brought suit for patent infringement and trade secret misappropriation. Regarding the former, the district court invalidated the asserted claims of the '245 patent on summary judgment for lacking written description support for the claimed subject matter. The trade secret claim, however, went to the jury. The jury found a valid trade secret and misappropriation. The jury agreed that Swan developed a prototype for a free-floating handguard having a single rifle support point, which Swan showed to Troy. The jury disbelieved Troy's testimony that Troy came up with the design of the accused products while vacationing in Turkey. Atlantic Research appealed.
On appeal, the Federal Circuit upheld the invalidity holding of the district court. The Court agreed that, although the plain meaning of the asserted claim required only one support point (like Troy's handguard), the only disclosed designs in the written description required two support points. Atlantic Research argued that he district court erred on its claim construction arguing that, although the "barrel nut" support was expressly recited in the independent claim, it did not mean the claim did not also include a two-support handguard system. The Federal Circuit noted the absence of any disclosure of a single-point handguard support system and that the originally issued claims were directed to such a two-support system. In fact the claims in suit were added by reissue to eliminate the second handguard support from the claim. The Federal Circuit also noted that Atlantic Research, during Markman, argued for a construction that did not require a second support. The Federal Circuit concluded that the district court correctly found that the claim was directed to an undisclosed single point support system that was invalid for failure to satisfy the written description requirement.
The Court commented on the mutual exclusivity of protecting an idea through trade secret law and protecting an invention through patent law. Upholding the jury's trade secret misappropriation finding, the Federal Circuit noted the inherent tension Atlantic Research created by arguing that its patent has proper support for a singly supported handguard and that a singly supported handguard is an Atlantic Research trade secret. The Court even found additional support for its invalidity decision in the fact that Atlantic Research asserted the design to be a trade secret.
The case was remanded, however, because the Court reversed the district court's denial of Troy's motion for a mistrial. The motion was based on the one juror's bringing from home and showing other jurors a plumbing clamp to assist in deliberations.
Practice Note: A patentee-plaintiff must be careful when concurrently asserting a trade-secret claim because in some regards the two bodies of law offer mutually exclusive protections.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.