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IP Law and Sound Business Practice
Christopher V. Carani, Herbert D. Hart III and George Wheeler, McAndrews, Held & Malloy, Ltd.
This article summarizes some major developments in patent law and their implications for IP practice and business strategy.
The 2011 Leahy-Smith America Invents Act profoundly changed U.S. patent law. In many situations, counsel should obtain separate pre-AIA U.S. patents under pre-AIA law and post-AIA patents under the AIA. Any individual patent is either all pre-AIA or all post-AIA, and cannot be some of each.
The 2012 jury verdict awarding Apple $1.05 billion dollars for Samsung’s infringement of its design patent stirred interest in this kind of patent. In addition to protecting the overall aesthetic design of a product, design patents can be used to protect the aesthetic design of portions of a product. This strategy is an effective means to secure significant and broad coverage. Design patents can be acquired quickly and inexpensively. On average, it takes about 12 to 14 months for design patents to issue once filed, and an attorney can typically file an application for $2,000-$3,000.
There is an abundance of misinformation surrounding post-grant trials at the Patent Trial and Appeal Board. For example, it is commonly assumed that the practitioner’s experience with district court litigation is directly applicable, but The Federal Rules of Civil Procedure are not used in a PTAB trial, though the Federal Rules of Evidence are. “Discovery” is not discovery in the ordinary sense, and a “deposition” is not a Rule 26 discovery deposition. Rather, it is cross-examination subject to restrictive guidelines.