Reexamination Admissible as Evidence to Negate Willfulness

Scott Daniels | September 7, 2010

Judge Roslyn Silver ruled last Thursday in Integrated Technology v. Rudolph Technologies that the accused infringer Rudolph could introduce evidence at trial of a reexamination against one of the two patents in dispute.

Integrated sued Rudolph in 2006 for infringement of two patents related to systems for inspecting integrated circuit probe cards, including U.S. Patent No. 6,118,894.  In July 2009, Rudolph filed a request for reexamination against the ‘894 patent (90/009,551).  The PTO granted reexamination against all 22 claims of the ‘894 patent.  Since then, however, the patentability of claims 4-22, several of which are independent claims, has been confirmed.  Only claims 1-3 stand rejected.

Trial in the case is scheduled to begin the second week of November, and the patentee Integrated Technology moved to exclude evidence of the ‘894 reexamination.  Judge Silver denied the motion.  “Evidence of the Patent Office’s Actions is relevant, at the very least, to the issue of willfulness” (emphasis added) Judge Silver explained, suggesting that the ‘894 reexamination might be admissible with respect to other issues besides willfulness.  Judge Silver cited Lucent Tech. Inc. v. Gateway Inc., 2007 WL 6955272 (S.D. Cal.), but did not address the trial court decisions that find admission of evidence of reexamination to be unduly prejudicial.

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