If I were a betting man, then virtually all of the CAFC rulings in Sept. indicate that it’s wise to bet against the patentee. The patentee – the one who spent the R&D and market-entry money, took loans, diluted the stock, paid for the patent prosecution, etc. – him, bet against him being rewarded in the CAFC. Consider all the rulings in Sept. 2007 on infringement and validity, as reported by the CAFC.
Patentee wins in Forest v. IVAX – validity affirmed.
Patentee loses in:
Data Encryption – noninfringement affirmed
Toshiba v. Juniper – noninfringement affirmed
Automotive Tech – invalidity and noninfringement affirmed
Gillespie v. DYWIDAG – reversed infringement ruling
Aventis v. Lupin – reversed infringment and validity ruling
L.B. Plastics – noninfringement affirmed
Arminak – noninfringement affirmed
Acco v. ABA Locks – reversed infringment ruling
Daiichi Sankyo v. Apotex – reversed: patent invalid
Adenta v. Orthoarm – invalidity affirmed
MEMC v. Mitsubishi – noninfringement affirmed
BMC v. Paymentech – noninfringement affirmed
Sure, that survey/snapshot is unscientific support for most any broad conclusions. But geez! 12 to 1! Who’d take those odds? When asked, before any patent application has been filed, ‘if I get a patent, what are my chances of keeping competitors from copying it?’ To give answers, like “50-50” or “patents are presumed valid by law” or that ‘Congress set up a special court for patent cases that assures patentees don’t get home-towned,’ may be to fail to disclose material information to a person seeking worthwhile advice from someone skilled in patent law. At least tell them that their odds can’t be any worse that patentees whose appeals were decided by the CAFC in September. New crop of law clerks?