Developments in Mid-June

Scott Daniels | June 23, 2010

1.      Microsoft Files Request Against

On June 18th, Microsoft filed a request for reexamination against U.S. Patent No. 5,292,125.  The ‘125 patent appears to be assigned to the law firm Brooks & Kushman and is entitled APPARATUS AND METHOD FOR ELECTRONICALLY CONNECTING REMOTELY LOCATED VIDEO GAMES.  As reported above, the ‘125 patent is the subject of an infringement suit against Microsoft.  There have been substantial disputes in the law suit regarding claim construction, and the present request may be an attempt to take advantage of the PTO claim construction arguments made on behalf of the patentee.

2.      Tyco Healthcare Case Settled

On June 14th we reported on the possibility of defendants using reexamination to defeat allegations of willfulness.  In particular, we pointed to Tyco Healthcare Group LP v. E-Z-EM, Inc., (E.D. Tex., Case No. 2:07-CV-262) as “a case to watch” – there, in a departure from the practice of most courts, Judge John Ward had stated that he would allow the accused infringer to present to the jury evidence of a pending reexamination for the limited purpose of challenging the patentee’s willfulness allegation.

 The next day the parties stipulated to a dismissal, presumably based on a settlement agreement, and Judge Ward dismissed the case.  Certainly, there will be other cases.

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