Friday, September 17, 2010

Defendant Cannot Willfully Infringe Claims That Did Not Issue Until After Suit Was Filed

The court granted defendant's motion for summary judgment of no willful infringement. "[T]he bases upon which the Court has found that [the accused product] may infringe [plaintiff's] patents result from the construction given to claim terms which were affected by the prosecution history of the [reissue] patent, and/or relate to changes and additions made to the [original] patent in that reissue. . . . [Plaintiff] filed its Complaint prior to the reissue of the [original] patent. That reissue contains 16 new claims not present in the [original] patent. [Defendant] could not have willfully infringed upon these claims, which did not issue until after this suit was filed."

Advanced Fiber Technologies (AFT) Trust v. J & L Fiber Services, Inc., 1-07-cv-01191 (NYND September 13, 2010, Memorandum-Decision) (Kahn, J.)

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