Recent CAFC decisions seem to be continuing the trend of the CAFC being friendly to patents. To be sure, there are things that need to be fixed in the patent system, but the CAFC doesn’t seem to be part of the problem.

In this post, we suggest that the legitimate concerns of smaller patent owners and others in favor of a strong and fair patent system can best be addressed if the stakeholders band together and make noise in Washington. They may not get everything they want but if they don’t try, they are likely to be pushed under the bus.

Recent CAFC decisions on anticipation and obviousness demonstrate the court’s resolve to demand that such grounds for invalidity be rigorously demonstrated.

On remedies, the CAFC is demanding that the district courts take a flexible approach in determining irreparable harm when deciding whether to grant an injunction against future infringement, especially when the parties are actual competitors. In one case we discuss, the court insisted that the district court consider only if the patented feature is one of the features that drives demand for the infringing product. The feature does not have to be the sole driver of the demand.

As to attorneys’ fees for exceptional cases, the CAFC is treating patent owners with the same respect it gives those unjustly accused of infringement or subjected to unreasonable litigation tactics.


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