Wednesday, July 09, 2014

X2Y case at CAFC: live by "super patent" concept; die by "super patent" concept? The hazards of "incorporation by reference"

The website for X2Y Attenuators has the text:

X2Y Attenuators, LLC currently has over 7,200 unique and interrelated Patent claims for capacitor structures, circuit uses and application in products. The result is a portfolio with a matrix of claims that when taken as a whole comprise a "Super Patent" of X2Y® Technology. The X2Y Patent Portfolio also includes all types of derivative electrode structures and circuitry.

Beginning with our first Patent filed in March of 1991, X2Y patents have been filed and/or issued in key countries around the world including Australia, Canada, China, the European Union (including England, Germany, Austria, Netherlands, Italy, France, Spain, Switzerland), India, Israel, Japan, Korea, Singapore and the United States of America.

In an appeal of an adverse ITC decision to the CAFC in X2Y Attenuators v. ITC, X2Y suffered an affirmation of narrowed claim scope as to three patents: 7,609,500, 7,916,444, and 8,023,241, none of which seem to be listed on their website.

X2Y's mention of something being "an essential element" resulted in a disavowal of claim scope, and loss of the asserted infringement. The CAFC, in affirming disavowal, cited to GE Lighting v. AgiLight, 750 F.3d 1304 (CAFC 2014).

The matter of incorporation by reference also arose. Telemac Cellular v. Topp, 247 F.3d 1316 (CAFC 2001 ) and Ultradent v Life Like Cosmetics, 127 F.3d 1065 are cited.


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