A petition on related issues was recently filed in PhaZZer, and the court may be considering the issues together. The last direct IP case for the court to Consideration of one fully briefed petition was postponed. Chrimar Systems. Chrimar has to do with the timing of judgment finality and issue preclusion. Particularly: How does claim cancellation via inter partes review impact prior court judgments upholding the patent? (In this case, an appeal in the infringement litigation was still pending on other grounds). A petition on related issues was recently filed in PhaZZer, and the court may be considering the issues together.
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Dennis Crouch Law Professor at the University of Missouri School of Law firstname.lastname@example.org
While this patent case was pending on appeal, the United States Patent and Trademark Office (USPTO) issued a judgment in an ex parte reexamination invalidating all patent claims on which the Patentee based its infringement claims, and then the USPTO issued a Reexamination Certificate cancelling all of those patent claims. Unfortunately, the Federal Circuit refused to stay the case, a mere nine weeks so that a review that USPTO judgment could be made, necessitating the present Petition for Writ of Certiorari and/or, preferably, remand to the Federal Circuit. Due to the cancellation of the patent claims by the USPTO, all orders related to these patent claims are void ab initio. Petitioner requests that either this Petition for Writ of Certiorari be granted or, preferably, the issue be remanded to the Federal Circuit for reconsideration of its Order affirming the District Court judgment so that the action can be remanded to District Court to vacate the patent damages. The questions presented are: 1) Is the Federal Circuit affirmation of the patent damages now incorrect in light of the change of circumstances created by the USPTO cancellation of all patent claims? 2) Is remand to the US Court of Appeals for the Federal Circuit timely and appropriate in light of the change of circumstances created by the USPTO cancellation of all patent claims? ii 3) Does Respondent lack standing to assert said patent claims since the USPTO cancellation of all patent claims?
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