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PETITION OF CERT TO SUPREME COURT ON ISSUE OF OBVIOUSNESS

In Medela AG v. Kinetic Concepts, Inc., a writ of certiorari petitioning the Supreme Court was filed last week, seeking to supplant juries in deciding the issue of obviousness in patent cases in favor of judges.  The petition, filed by Medela, posed the following question to the Supreme Court:

“[w]hether a person accused of patent infringement has a right to independent judicial, as distinct from lay jury, determination of whether an asserted patent claim satisfies the “non-obvious subject matter” condition for patentability.”

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DAVID I4I VS. THE MICROSOFT GOLIATH.

Earlier this month, the Honorable Leonard Davis of the United States District Court for the Eastern District of Texas made a determination of willful patent infringement in favor of a thirty (30) employee Canadian based software manufacture who sued the software giant, Microsoft.  The lawsuit filed by Infrastructures for Information Inc., known as i4i claimed that MS Word 2003 and 2007 included an Extensible Markup Language or XLM tagging feature that infringed its patent.  The plot was thickened by the fact that i4i developed a product based on the patent and even negotiated the possibility of a license with Microsoft which triggered allegations of willful infringement on the part of the software giant who is no stranger to litigation.  

Specifically, in May of this year, the jury found in favor of i4i and awarded it $200 million.  But earlier this month, Judge Davis found that the infringement was willful and added $40 million to the damages award along with pre-judgment interest in the amount of $37 million.  He then issued a permanent injunction prohibiting Microsoft from selling MS Word in the US and giving Microsoft 60 days to comply with the injunction. 

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