Friday, January 6, 2012

Notice of Patent Application is Insufficient for Willful Infringement Claim

The court granted plaintiff's motion for judgment on the pleadings as to defendant's claim for willful infringement. "Merely providing notice that applications are pending is not sufficient because '[f]iling an application is no guarantee any patent will issue and a very substantial percentage of applications never result in patents.' While the Federal Circuit has affirmed the sufficiency of notice of a pending application, it did so only where it was established that the defendant 'knew exactly when [the] patent came into existence and indeed had several months advance notice.'. . . Here, there is no allegation whatsoever that [plaintiff] had any advance notice of the allowed claims or even that any claims would be allowed."

Sealant Systems International, Inc. v. TEK Global, S.R.L., 5-11-cv-00774 (CAND January 4, 2012, Order) (Grewal, M.J.)

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