Friday, July 31, 2009

Plaintiff Denied Damages For Infringement Prior to Certificate of Correction

The court ruled that plaintiff may not seek damages for alleged infringement prior to the date the PTO issued a Certificate of Correction for the asserted patent. "After a [Certificate of Correction] is issued by the PTO, all future patent infringements go to the corrected patent claim and not to the original claim. [Plaintiff] cannot claim damages for infringement on the . . . uncorrected claims of the [asserted patent] because the PTO corrections do not apply retroactively and [plaintiff] only asserted infringement of the corrected claims. [Plaintiff] has never articulated an infringement theory based on the pre-corrected claims and it is undisputed that the corrections were made after the filing of the suit on August 29, 2006. In addition, [plaintiff's] expert has only discussed infringement based on the corrected . . . patent claims. Accordingly, [plaintiff's] claim for damages on the [patent-in-suit] is limited to the date of correction by the PTO."

Cordance Corporation v. Inc., 1-06-cv-00491
(DED July 28, 2009, Memorandum Order) (Thynge, J.)

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