By Dennis Crouch
- Exceptional Case Awards: The Supreme Court will be hearing oral arguments on February 26, 2014 in two patent infringement cases that both concern shifting of attorney fees under the “exceptional case” standard of 35 U.S.C. § 285. The Federal Circuit has traditionally been resistant to fee shifting awards – especially in cases where an accused infringer is the prevailing party. In Octane Fitness, petitioner asks the Court to lower the standard for proving an exceptional case. In Highmark, petitioner asks for deference to lower court exceptional case findings. We can expect that the Supreme Court will eliminate the Brooks Furniture test – at least as it is strictly applied.
- Patentable Subject Matter: On March 31, 2014, the Supreme Court will hear oral arguments in the software patent case of Alice v. CLS Bank. The case has the potential of drawing dividing line between what types of software are patentable and what types of software are not patentable. I am quite pessimistic that the result proposed by the Supreme Court will be fairly implementable by the US Patent Office.
- Indefiniteness: On April 28, 2014, the Supreme Court will hear oral arguments in Nautilus v. Biosig. That case questions the standard for challenging issued patents on indefiniteness grounds. We can expect that the Supreme Court will lower the standard for proving indefiniteness – down from “insolubly ambiguous” to a more “reasonable” standard. This has the potential of impacting a substantial number of patents that have issued with claim terms that intentionally flirt with ambiguity. Indefiniteness is regularly confused with over-breadth. Patent attorneys role moving forward will be in finding ways to draft broad but well defined claims
- Divided Infringement: On April 30, 2014, the Supreme Court will hear the joint infringement case of Limelight v. Akamai that posits the question whether the elements of infringement-by-inducement require a single entity who, based upon the inducement, performs all elements of the claimed invention. The Federal Circuit ruled that the single-entity rule of direct infringement should be relaxed for inducement and instead that the relevant question is whether the alleged inducer did indeed induce performance of all elements of the patented claim. Although the Supreme Court may prove some tweaks, I believe that the Federal Circuit approach here should carry the day.