1. This morning, in Junker v. Medical Components, Inc., the court reversed a judgment in favor of the owner of a design patent, on the ground that the design in suit was on sale more than one year prior to the critical date. I mention the case here because the reversal also eliminates the lower court's award, under 35 U.S.C. § 289, of the defendant's profits in the amount of $1,247,910. Last summer I had noted a district court opinion in this case applying the Solicitor General's four-factor test for determining the relevant "article of manufacture" in design patent cases (see here). Thus far, the few decisions addressing the "article of manufacture" issue have been supportive of this test, notwithstanding its defects (as noted, for example, by Professor Burstein).
2. Earlier this week in Nippon Shinyaku Co. v. Sarepta Therapeutics, Inc., the court reversed a district court order denying a preliminary injunction, holding that under the terms of a contract between the parties Sarepta is precluded from petitioning for an IPR of Nippon patents. In a sense, this case is illustrative of a more traditional type of antisuit injunction, wherein a court would sometimes enjoin a party from proceeding with litigation in violation of a forum selection or arbitration agreement. As Dennis Crouch suggests, however, it may seem a bit odd here that the court didn't address the possible implications of Lear v. Adkins and MedImmune v. Genetech.
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