Scott Daniels | May 12, 2010

(1) Toray Makes Progress Against Avery Dennison

We reported in September that Judge Marilyn Patel had stayed Avery Dennison’s case in the Northern District of California against Toray, in which Avery accused Toray of infringing three patents related to RFID labeling.  Judge Patel stayed the case pending completion of the PTO’s inter partes reexaminations of those patents.

Since that stay, Toray appears to have made good progress against the Avery patents in those reexaminations.  First, claims 1-28 of U.S. Patent No. 7,368,032 were rejected – Avery has traversed that rejection and is now awaiting the examiner’s reply.  At the end of April, the examiner issued an Action Closing Prosecution after having rejected all 65 pending claims of U.S. Patent No. 6,951,596.  And last week, the examiner issued a non-final rejection of U.S. Patent No. 7,361,251.

(2) Avery Dennison and 3M Don’t Wait

Everything happened last Tuesday.

Avery Dennison received its U.S. Patent No. 7,709,071 entitled LABEL SHEET DESIGN FOR EASY REMOVAL OF LABELS.  The same day Avery sued 3M in Delaware for infringement of the ‘071 patent, and 3M filed a request for inter partes reexamination of the ‘071 patent.

(3) Merck’s Singulair® Patent Survives Reexamination

The PTO has issued a Reexamination Certificate confirming the patentability of all claims in issue of Merck’s U.S. Patent No. 5,565,473 for Singulair®.

(4) Rough Justice

In a decision Monday – In re Lund – the Board of Appeals lamented the fact that original patent claims cannot be rejected in reexamination under 35 U.S.C. § 112.

The Board later, however, filled a gap in the disclosure of the prior art, needed to reject the claims, by asserting that the undisclosed structure was well-known in the art: the applicant’s “description of the card-edge connector 151 and the ribbon cable 175 is terse, which indicates a confidence that those in the art were already familiar with the specific structures that [applicants] disclosed.”

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