By John L. Rogitz of Rogitz & Associates
John Rogitz has conducted extensive domestic and foreign prosecution in the areas of computer hardware and software for high-tech institutions. He has also conducted extensive patent prosecution in the biomed field, including medical instrumentation, as well as in the fields of superconductors, magnetic resonance imaging, materials and consumer electronics. Mr. Rogitz can be reached at 619-338-8075.
1. Inequitable Conduct: Leviton Manufacturing Co. v. Universal Security Systems Inc. 2009-1421 agrees with a summary judgment and imposition of exceptional case fees that Leviton's attorney should have disclosed to the PTO a later-priority application from which he copied claims into an unrelated earlier-priority application that arguably supported them because a reasonable examiner may have considered the later-priority document material from both an inventorship and double patenting standpoint. But the CAFC vacates the finding of intent on summary judgment, holding that a material question of fact remained and remanded for an evidentiary hearing on intent because the district court's inference was not the only inference supported by the record, although a dissent disagreed.
2. Scope of Review: Vizio, Inc. v. TPV Technology Ltd., 2009-1386 is an otherwise unexceptional claim construction case in which the CAFC affirmed the ITC's construction of the two appealed elements of an MPEG decoder claim that resulted in a finding of infringement of two product groups, a "legacy" group and a "workaround" group - but then reversed the construction of a third element that had not been appealed to reverse the infringement liability of the workaround group. The dissent found both the process and merits questionable.
A structural claim at issue requi...