How To Avoid Collateral Estoppel On Invalidity: Lose On Other Grounds

The U.S. Court of Appeals for the Federal Circuit allowed a patentee to avoid fatal damage to its pending cases against other defendants by removing the issue of invalidity from a pending appeal, permitting the parties on appeal to consent to a holding of implied license. Baychar, Inc. v. Salomon North America, Inc., Case No. 08-1052 (Fed. Cir., June 18, 2008) (per curiam)

In the latest installment from the Federal Circuit in this marathon litigation involving Baychar and Salomon, Baychar succeeded in keeping its patent valid, at least for now, by agreeing to a holding of non-liability against Salomon based on finding of implied license. This tactic allows Baychar to press its litigation efforts against different defendants in other cases.