{"id":2151,"date":"2018-07-10T12:32:16","date_gmt":"2018-07-10T16:32:16","guid":{"rendered":"https:\/\/patents.harnessip.com\/?p=2151"},"modified":"2018-08-01T09:09:27","modified_gmt":"2018-08-01T13:09:27","slug":"lack-of-written-opinion-leaves-infringer-exposed-in-the-crosswalk","status":"publish","type":"post","link":"https:\/\/patents.harnessip.com\/?p=2151","title":{"rendered":"Lack of Written Opinion Leaves Infringer Exposed in the Crosswalk"},"content":{"rendered":"

In Polara Engineering Inc. v. Campbell Company<\/a>, [2017-1974, 2017-2033] (July 10, 2018), the Federal Circuit affirmed in part, vacated in part, and remanded the district court’s determination that claims 1-4 of U.S. Patent No. 7,145,476 on accessible pedestrian signal systems were valid and willfully infringed, and awarding enhanced damages.<\/p>\n

Cambell argued on appeal that the claims were invalid of prior public uses and over the prior art.\u00a0 Regarding the public uses, the Federal Circuit noted that an inventor who seeks to perfect his discovery\u00a0may conduct extensive testing without losing his\u00a0right to obtain a patent for his invention\u2014even if such\u00a0testing occurs in the public eye.\u00a0\u00a0A use may be experimental if\u00a0its purpose is to test claimed features of the invention or to determine whether an invention will work\u00a0for its intended purpose.\u00a0 The Federal Circuit found that\u00a0that substantial evidence supported\u00a0the jury\u2019s finding of experimental use that negates\u00a0application of the public use bar, noting that testing to\u00a0perfect features inherent to the claimed invention, such as\u00a0durability qualifies as experimental, and that in any event the testing did relate to claimed features.\u00a0 While there was evidence that the testing involved commercial features, rather than claimed features, the Federal Circuit could not\u00a0say that the jury\u2019s finding of\u00a0experimental use lacked substantial evidentiary support.<\/p>\n

Regarding invalidity over the prior art, the Federal Circuit agreed that\u00a0Campbell was estopped from arguing that the\u00a0district court erred in its claim construction instruction
\nbecause the court adopted Campbell\u2019s proposed construction\u00a0of \u201cdigital data signals.\u201d\u00a0 The Federal Circuit found substantial evidence for the jury’s implied fact finding.<\/p>\n

On the issued of enhanced damages, the Federal Circuit noted that enhanced damages\u00a0are designed\u00a0as a “punitive” or “vindictive” sanction for egregious
\ninfringement behavior, and found that substantial evidence supports
\nthe jury\u2019s finding of willful infringement.\u00a0 The Federal Circuit said that\u00a0the jury reasonably could\u00a0have found that Campbell intentionally copied the \u2019476\u00a0patent despite a significant known risk that its two-wire\u00a0AAPS would infringe the \u2019476 patent, having been advised by counsel that there were \u201careas of potential conflict.”\u00a0 While Campbell argued that it relied upon competent opinion of counsel,\u00a0 the Federal Circuit said that\u00a0Campbell “has\u00a0not pointed to any documentary or third-party evidence\u00a0showing it received an opinion of counsel,” and the jury was\u00a0entitled not to credit the\u00a0testimony that there was such an opinion.\u00a0 While Campbell’s challenge that the jury instruction did not specify the time period during which Campbell’s conduct was willful may have had merit, Campbell waived this challenge by agreeing to a simple yes or no instructions.<\/p>\n

Finally, on the amount of enhanced damages (the district court used a multiplier 2 1\/2), the Federal Circuit said that\u00a0the district court awarded almost the maximum amount
\nof enhanced damages, but did not adequately explain its\u00a0basis for doing so, and failed to even mention Campbell\u2019s\u00a0public use defense, which presented a close question in
\nthis case.\u00a0 The Federal Circuit found that the district court may have erred in its consideration of Campbell’s public use defense, and\u00a0vacated the award of enhanced damages\u00a0and remanded.<\/p>\n","protected":false},"excerpt":{"rendered":"

In Polara Engineering Inc. v. Campbell Company, [2017-1974, 2017-2033] (July 10, 2018), the Federal Circuit affirmed in part, vacated in part, and remanded the district court’s determination that claims 1-4 of U.S. Patent No. 7,145,476 on accessible pedestrian signal systems … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[48,84,85,83],"tags":[],"class_list":["post-2151","post","type-post","status-publish","format-standard","hentry","category-damages","category-enhanced-damages","category-public-use","category-willfulness"],"post_mailing_queue_ids":[],"_links":{"self":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/2151","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2151"}],"version-history":[{"count":1,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/2151\/revisions"}],"predecessor-version":[{"id":2152,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=\/wp\/v2\/posts\/2151\/revisions\/2152"}],"wp:attachment":[{"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2151"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2151"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/patents.harnessip.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2151"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}