Wednesday, September 24, 2008

Jack Welch: 1st quarter 2009 will be brutal

Reuters reports on "Neutron Jack" Welch, once of General Electric:

"I now believe we are in for one hell of a deep downturn," Welch told the World Business Forum in New York on Sept. 24, adding that the first quarter of 2009 will likely be "brutal."

Until recently, Welch said, he had believed the U.S. economy could avoid recession, but he has changed his mind.

"I am now caving," he said. "Get ready for real tough times. They're coming. There is no credit available."


Of other enduring sagas, the CAFC ruled in Broadcom v. Qualcomm (see

Qualcomm did get some traction: Because the district court erred in its
construction of claim 3 of the ’686 patent, we reverse the jury’s determination of
infringement of that patent and conclude that claim 3, as properly construed, is invalid.


we affirm the judgment of infringement of the ’317
and ’010 patents, and the injunction as it pertains to those patents.
[Bedtime for Qualcomm]

***Some words of wisdom from the CAFC-->

As this court has noted, “each claim does not necessarily cover every feature disclosed
in the specification. When the claim addresses only some of the features disclosed in the
specification, it is improper to limit the claim to other, unclaimed features.”
Ventana Med. Sys., Inc. v. Biogenex Labs., Inc., 473 F.3d 1173, 1181 (Fed. Cir. 2006).

“A patent is invalid as anticipated if every limitation in a claim is found in a single
prior art reference.” Nystrom v. TREX Co., 424 F.3d 1136, 1149 (Fed. Cir. 2005).

Cordis Corp. v. Medtronic Ave, Inc., 511 F.3d 1157, 1174 (Fed. Cir. 2008)
(noting that “a construction that renders the claimed invention inoperable should be
viewed with extreme skepticism”).

If true, these facts
permit Broadcom to antedate the Burson reference, which was filed in December
1993—subsequent to both the lab notebook and the 1993 patent applications. See
generally Mahurkar v. C.R. Bard, Inc., 79 F.3d 1572, 1577 (Fed. Cir. 1996)

Qualcomm relies on our recent holding
in PowerOasis, Inc. v. T-Mobile USA, Inc., 522 F.3d 1299, 1305 (Fed. Cir. 2008)
(holding that once a defendant established prior art anticipating the asserted claims,
“the burden was on [the patentee] to come forward with evidence to the contrary”), and
argues that Broadcom failed to carry its burden at trial in demonstrating entitlement to a
filing date prior to that of the Burson reference. We disagree.

See Johnston v. IVAC
Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989) (noting that “[a]ttorneys' argument is no
substitute for evidence”).

Qualcomm’s eleventh-hour attempt to litigate a newly minted claim construction
controversy falls squarely within our holding in Eli Lilly & Company v. Aradigm

In so holding, we reject Qualcomm’s additional contentions that Broadcom has
presented a post-trial claim construction in contravention of our holding in Hewlett-
Packard Company v. Mustek Systems, Incorporated, 340 F.3d 1314, 1320-21 (Fed. Cir.

This instruction comports with our holding in Knorr-
Bremse Systeme Fuer Nutzfahrzeuge, GmbH v. Dana Corp., where we held that there
is not “a legal duty upon a potential infringer to consult with counsel, such that failure to
do so will provide an inference or evidentiary presumption that such opinion would have
been negative.” 383 F.3d 1337, 1345 (Fed. Cir. 2004) (en banc).

That is,
Qualcomm argues that opinion-of-counsel evidence is no longer relevant in determining
the intent of an alleged infringer in the inducement context. We disagree.

it is incorrect in arguing that Seagate altered the state of
mind requirement for inducement. Our en banc holding in DSU remains the relevant
authority on that point. Despite Qualcomm’s assertion that the intent standard for
inducement is higher than that for willful infringement, a lack of culpability for willful
infringement does not compel a finding of non-infringement under an inducement
theory. Qualcomm’s argument reflects a misunderstanding of our holding in DSU.

Qualcomm seems to argue that the jury’s verdict
cannot stand because Broadcom failed to produce direct evidence of intent to induce
infringement. That is not the law. “A patentee may prove direct infringement or
inducement of infringement by either direct or circumstantial evidence. There is no
requirement that direct evidence be introduced, nor is a jury’s preference for
circumstantial evidence over direct evidence unreasonable per se.” Liquid Dynamics
Corp. v. Vaughan Co., 449 F.3d 1209, 1219 (Fed. Cir. 2006) (internal citation omitted).

It remains an
open question “whether there remains a rebuttable presumption of irreparable harm
following eBay,” Amado v. Microsoft Corp., 517 F.3d 1353, 1359 n.1 (Fed. Cir. 2008),

see also Rite-Hite Corp. v. Kelley
Co., 56 F.3d 1538, 1547 (Fed. Cir. 1995) (en banc) (noting that “[t]here is no
requirement in this country that a patentee make, use, or sell its patented invention”
(citing Cont’l Paper Bag Co. v. E. Paper Bag Co., 210 U.S. 405, 424-30 (1908))).

this difficulty in estimating monetary damages reinforces the inadequacy of
a remedy at law. Cf. Jacobsen v. Katzer, 2008 WL 3395772, at *6 (Fed. Cir. Aug 13,
2008) (noting, in the copyright license context, that “because a calculation of damages
is inherently speculative, these types of license restrictions might well be rendered
meaningless absent the ability to enforce through injunctive relief”).

At the outset, we note that “[o]ne who elects to build a
business on a product found to infringe cannot be heard to complain if an injunction
against continuing infringement destroys the business so elected.” Windsurfing Int’l,
Inc. v. AMF, Inc., 782 F.2d 995, 1003 n.12 (Fed. Cir. 1986).

***On Bard, 2 April 2009 from Bloomberg-->

W.L. Gore & Associates Inc. was told to pay $371 million to C.R. Bard Inc., doubling a December 2007 verdict where a jury found Gore infringed a patent over tubes that reinforce blood vessels.

The case is Bard Peripheral Vascular v. W.L. Gore & Associates, 03cv597, U.S. District Court, District of Arizona (Phoenix).


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