United States Federal Circuit

In an infringement suit over patents for electronic gaming machines, summary judgment for defendants on the ground that plaintiff had abandoned its application when it unintentionally paid a filing fee late, and that the patent had subsequently been "improperly revived" by the PTO, is reversed where "improper revival" may not be raised as a defense in an action involving the validity or infringement of a patent.

Appellate Information

• Decided 09/22/2008
• Published 09/22/2008

Judges

• LINN, Circuit Judge., Before NEWMAN, BRYSON, and LINN, Circuit Judges.

Court

• United States Federal Circuit

Counsel

• For Appellant:
  
• Raphael V. Lupo, McDermott Will & Emery LLP, of Washington, DC, argued for plaintiffs-appellants.   On the brief were Brian E. Ferguson, Natalia V. Blinkova, and Leonard D. Conapinski, of Chicago, IL;  and Terrence P. McMahon, Anthony De Alcuaz, and Robert J. Blanch, Jr., of Palo Alto, CA., Mary L. Kelly, Associate Solicitor, United States Patent and Trademark Office of Arlington, Virginia, for amicus curiae Director of the Patent and Trademark Office.   With her on the brief were James A. Toupin, General Counsel, Stephen Walsh, Acting Solicitor, and Joseph H. Piccolo, Associate Solicitor.   Also on the brief was Anthony J. Steinmeyer, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC., Seth M. Galanter, Morrison & Foerster LLP, of Washington, DC, for amicus curiae Neurotechnology Industry Organization.   With him on the brief was Priya B. Viswanath.


• For Appellees:
  
• Jeffrey W. Sarles, Mayer Brown LLP, of Chicago, IL, for defendants-appellees.   With him on the brief were Brent A. Batzer, and Sarah E. Rauh. Of Counsel on the brief were Jeffrey S. Love and Garth A. Winn, Klarquist Sparkman, LLP, of Portland, OR. Of counsel was Andrea C. Hutchinson, Mayer Brown LLP, of Chicago, IL.