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Before Seagate,1 defenses to infringement developed during the course of litigation had an uncertain role in determining whether the accused infringer willfully infringed the patent.

Recent cases show that courts are typically refusing to permit an accused infringer to present to a jury evidence of a non-final pending reexamination proceeding.

One of the more controversial provisions of the proposed patent-law reform concerns the mandatory apportionment analysis required in assessing reasonable royalty damages for patent infringement when the entire-market-value rule does not apply.

Section 292 of the Patent Act provides that a person who falsely marks an unpatented article as being patented, where the false patent marking was done with an intent to deceive the public, "[s]hall be fined not more than $500 for every such offense."

For most of this decade the Eastern District of Texas has had the reputation for almost routinely denying motions to transfer a patent infringement action for the convenience of the parties under 28 U.S.C. § 1404(a).

Exergen does not alter the substantive law of inequitable conduct. But it does significantly increase the burdens for pleading inequitable conduct as an affirmative defense or as an unenforceability counterclaim. Undoubtedly, this opinion will have substantial and immediate impact on motion practice in patent litigation.

As a direct consequence of overruling the affirmative duty of due care to avoid infringement upon learning of a patent, the Federal Circuit expressly instructed in Seagate that "there is no affirmative obligation to obtain [an] opinion of counsel.

Since 1889, the law has accepted the view that licensing rates agreed to as part of settling a patent infringement action do not provide competent evidence of the value of a patent for determining a royalty rate to apply in later cases.

Following what arguably can be characterized as Supreme Court dictum, the district court in PRE Holding, Inc. v. Monaghan Med. Corp., 2009 WL 3874171 (E.D. Va. Nov. 17, 2009), denied a patentee’s motion for a preliminary injunction because the patentee failed to make a "clear showing" of entitlement to relief.

Applying the "plausibility" standard announced in Twombly, and reaffirmed in Iqbal, to patent infringement allegations, which traditionally have been guided by the sample patent infringement pleading of Form 18 of the Appendices of Forms to the Federal Rules of Civil Procedure, raises difficult issues for the courts, litigants, and the patent community in general.