Tuesday, October 04, 2005

Union Carbide prevails against Shell over US 4,916,243

The CAFC found that substantial evidence supported the jury verdict of Shell's infringement of US 4,916,243 (concerning the production of ethylene oxide). There was a remand on a 271(f) issue.

There was an issue of distinguishing "claim construction" issues from "infringement" issues. The CAFC cited Beckson v. NFM, 292 F.3d 718.

The case also includes a disagreement over the meaning of the word "define."

Of 271(f), the CAFC does cite Eolas v. Microsoft, 399 F.3d 1325, AT&T v. Microsoft, 414 F.3d 1366, and NTP v. RIM, 418 F.3d 1282. Shell's exportation of catalysts may result in liability under 271(f).

Of a willful infringement issue, the CAFC cited Knorr-Bremse, 383 F.3d 1337, and Imonex, 408 F.3d 1374 to note Shell's decision to proceed without an opinion of counsel does not affect the jury verdict in this case.

The '243 patent was uncovered by a Shell in-house patent attorney. The attorney read the patent and interpreted the claims. [Beliefs of Torvalds and Lemley notwithstanding] His analysis, although wrong, was not deemed entirely implausible.

The '243 patent is based on an application that is a continuation of prior U.S. application Ser. No. 763,273 filing date Aug. 7, 1985 which is a continuation of application now abandoned Ser. No. 497,231 filing date May 23, 1983 which is a continuation of application now abandoned Ser. No. 116,292 filing date Feb. 13, 1980 now abandoned which is a continuation-in-part of Ser. No. 021,727 filed Mar. 20, 1979 now abandoned. Issued in 1990, the '243 patent has been cited by 4 US patents.


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