English
Is Evidence of a Concurrent Reexamination Admissible in Litigation? (Part IV of IV)
Admissibility in Litigation?
Courts have recently been faced with the issue of whether evidence of parallel reexamination proceedings should be considered at trial. In our prior posts, “Is Evidence of Parallel Reexamination Proceedings Admissible at Trial? (Parts I, II and III)”, we discussed using pending reexamination proceedings to support invalidity contentions, prove inequitable conduct, and rebut allegations of willful infringement. Accused infringers have also attempted to use evidence of parallel reexamination proceedings to support and oppose motions for preliminary injunction.
Reexamination Evidence Used to Support or Oppose Motions for Preliminary Injunction
When deciding to grant or deny a preliminary injunction, the courts consider four factors: (1) the likelihood of success on the merits; (2) the irreparable harm if the injunction is not granted; (3) the balance of hardships between the parties; and (4) the public interest. Procter & Gamble Co. v. Kraft Foods Global Inc., 459 F.3d 842, 847 (Fed. Cir. 2008). To defeat a showing of likelihood of success on the merits, alleged infringers will attempt to attack the infringement, validity, or enforceability of the patent at issue. Specifically, to diminish likelihood of success on the merits with regard to a patent’s validity, accused infringers have attempted to introduce evidence that the patent is undergoing parallel reexamination proceedings. Read the rest of this entry »
