Fletcher YoderWhere continuations issue from parent patents that previously have been licensed as to certain products, it may be presumed that, absent a clear indication of mutual intent to the contrary, those products are impliedly licensed under the continuations as well.
A factor to be considered in granting a preliminary injunction is the patentee’s likelihood of success on the merits. In assessing this factor, a trial court should evaluate the alleged infringer’s evidence of invalidity as well as the evidence the patentee presents in rebuttal. The inquiry into the obviousness of a design patent is whether the claimed design would have been obvious to a designer of ordinary skill who designs articles of the type involved.
To defeat a motion for a preliminary injunction on the issue of potential invalidity in an infringement action, the accused infringing party must present evidence sufficient to raise a substantial question of invalidity. Regarding a design patent, such evidence includes evidence of the overall functionality of the design.
Furthermore, in order to consider the availability of alternative designs as a factor that proves the validity of a design patent, an affirmative finding that the alternative designs will not affect the utility of the article must be explicitly made if the accused infringing party has presented evidence to the contrary.
An interlocutory appeal of a summary judgment that denies an injunction is not allowed unless the moving party can show that serious or irreparable harm will occur before final judgment.
If a vehicle that uses a patented invention is in the United States for the sole purpose of engaging in international commerce, then this vehicle qualifies as being “temporarily” in the United States, and 35 U.S.C. § 272 defines such use as noninfringing. Additionally, at the preliminary-injunction phase, once the accused infringer has posed a substantial question of invalidity, the patentee must demonstrate that the invalidity defense lacks substantial merit.