Patents / Patentable Subject Matter - Neither Mental Process Nor a Signal (Per Se) Meets Threshold for Patentable Subject Matter
Patents / Infringement - The Federal Circuit Rejects “Joint Infringement” of a Patent
Patents / Standing - Separation of Enforcement from Ownership Leaves No Leg to Stand On
Patents / Standing of Exclusive Licensees - No Gaming the System for Standing
Patents / Damages - High Royalty Rates Justified by Margins and History
Patents / Inequitable Conduct - Pro Se Applicant’s Fifteen Patents Buried Under Multiple Grounds of Inequitable Conduct
Patents / Inequitable Conduct - No Explicit Teaching Necessary to Render Isolation of Stereoisomer from Mixture Obvious
Patents / Claim Construction / Obviousness / Remedies - Vonage May Soon Hang Up
Patents / Injunctions - Federal Circuit Affirms Injunction, but Reverses Contempt Finding Against Apotex
Patents / Inducement - Showing of Direct Infringement Requires Specific Proof
Patents / Obviousness - Error in Determining “Person of Skill in the Art” Results in Reversal of Validity Finding
Patents / Prosecution - Breadth of Claim Interpretation During Examination
Patents / Public Use - Use “Rule of Reason” to Determine Sufficiency of Corroborating Evidence
Patents / Claim Construction - Arguments Made During Prosecution May Limit Claim Scope
Patents / Double-Patenting - Delay in Presenting New Claims Not a Basis for Double Patenting Rejection
Patents / Civil Procedure - State University Waives Eleventh Amendment Immunity
Patents / Civil Procedure - Pro Se Litigants Held to Lesser Standard to State a Patent Infringement Claim
Trademarks / Infringement -Distributor Not Vicariously Liable for Trademark Infringement
Patents / Patentable Subject Matter
Neither Mental Process Nor a Signal (Per Se) Meets Threshold for Patentable Subject Matter
By Paul Devinsky and Bernard P. Codd
Issuing two long-awaited decisions on the same day, the U. S. Court of Appeals for the Federal Circuit has clarified subject matter that falls outside the scope of patentable subject matter, intensifying a debate that has persisted in the wake of its nine-year-old State Street decision and finding that each of the applications failed to present patent subject matters under 35 U.S.C. § 101.
In one case, the Court held that claims directed to a method for mandatory arbitration resolution were unpatentable subject matter under § 101 because the claimed subject matter amounted to an unpatentable “mental process.” In re Comiskey, Case No. 06-1286 (Fed. Cir., Sep. 20, 2007) (Dyk, J.).
In a second case, the Court held that a signal (not embodied in a tangible media or memory) did not fall within any of the four statutory classes of patentable subject matter under § 101. In re Nuijten, Case No. 06-1371 (Fed. Cir., Sep. 20, 2007) (Gajarsa, J.; Linn, J., dissenting).
Comiskey’s patent application was directed to a method and system for conducting mandatory arbitration involving legal documents, such as wills or contracts. Before the Federal Circuit, Comiskey argued that the claims were directed to patentable subject matter because they did not fall within an exception to patentability, such as an abstract idea, natural phenomena or law of nature. The U.S. Patent and Trademark Office (USPTO) argued the claims were directed to an abstract idea.
Citing State Street Bank & Trust Co., the Court concluded the claims were “barred at the threshold by § 101,” explaining “[i]t is well established that ‘[t]he first door which must be opened on the difficult path to patentability is § 101.’”
The Court characterized Comiskey’s claims as “business method” claims and cited its State Street decision for the proposition that business methods are “subject to the same legal requirements for patentability as applied to any other process or method.” The Court further explained that a claim involving a mental process or algorithm is directed to patentable subject matter only if it is tied to a machine or involves a transformation of an article. However, citing Gottschalk v. Benson, the Court held that mental processes—or processes of human thinking—are not patentable, even if they have practical application.
The Court noted that while the range of patentable subject matter is extremely broad, the thread of Supreme Court and Federal Circuit cases on this issue have established that the application of human intelligence to the solution of practical problems is not in and of itself patentable. Thus, the Court held the patent statute did “not allow patents to be issued on particular business systems—such as a particular type of arbitration—that depend entirely on the use of mental processes.” As Comiskey’s independent claims 1 and 32 were directed to the mental process of resolving a legal dispute by the decision of a human arbitrator, the claims were found to be directed to unpatentable subject matter.
However the Court remanded independent claims 17 and 46 for further consideration by the USPTO. The Court noted these claims recited the use of “modules.” Therefore, even under the broadest reasonable interpretation, those claims could be limited to a system requiring use of a computer. The Court explained that as recognized by the Supreme Court in Diamond v. Diehr and the Federal Circuit in State Street Bank, combining an unpatentable mental process with a machine may produce patentable subject matter.
The Court went on to caution that claims that satisfy the threshold of § 101 must still satisfy the other requirements for patentability, noting “[t]he routine addition of modern electronics to an otherwise unpatentable invention typically creates a prima facie case of obviousness,” citing Leapfrog Enterprises v. Fisher-Price,(See IP Update, Vol. 10, No. 5). The Court then went further, linking § 101 and § 103 in a manner that pre-empts reliance on secondary considerations for non-patentable (under § 101) subject matter, stating that “there is no pertinent evidence of secondary considerations because the only evidence offered is of long felt need for the unpatentable mental process itself, not long felt need for the combination of the mental process and a modern communication device or computer.” The Court then observed that claims 17 and 46 merely appear to add a modern general purpose computer to an otherwise unpatentable mental process.
Nuijten sought to patent a signal with embedded supplemental data, also known as a watermark. Nuijten obtained allowance of claims directed to a process of adding a watermark to a signal, an arrangement for embedding supplemental data in a signal and a storage medium having the signal stored thereon. However, those application claims directed to a signal with embedded supplemental data were rejected under § 101 as being directed to non-statutory subject matter. The Board of Patent Appeals and Interferences of the USPTO noted that “[t]he signal … has no physical attributes … thus, it is considered an ‘abstract idea,’” and found that the signal claims did not fit into any of the four statutory categories of patentable subject matter defined in § 101. Nuijten appealed.
The Federal Circuit noted that while a carrier (such as electromagnetic radiation or light pulses) upon which the information is embedded is required, the claims were not limited by any specified physical medium. The Court explained that while in its State Street decision, it held “[t]he question of whether a claim encompasses statutory subject matter should not focus on which of the four categories of subject matter a claim is directed,” the claimed subject matter “must [still] fall into at least one category of statutory subject matter. … If a claim covers material not found in any of four statutory categories, that claim falls outside the plainly expressed scope of § 101, even if the subject matter is otherwise new and useful.” Thus, the issue presented here is whether a transitory signal per se fits any of the statutory categories: process, machine, manufacture or composition of matter.
Process, Machine, Composition of Matter
The Court readily found that the signal claims were not directed to a process, a machine or a composition of matter. As for process, the Court found no active steps and hence no process. Finding no “concrete thing,” the Court found the signal is not a “machine.” After defining composition of matter as a chemical union, gas, liquid or solid, the Court found the signal did not find a home there either.
Turing to the category of manufacture, the Court cited Supreme Court’s definition of “manufacture” (in its verb form) from Diamond v. Chakrabarty as “the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations,” and explained that the same dictionary the Supreme Court used to define “manufacture” in its verb form, defined “manufacture” in its noun form as “a particular substance or commodity: as an article of merchandise, an article of clothing.” Noting that when a signal is encoded on an electromagnetic carrier it can be transmitted through a vacuum, a medium that by definition is devoid of matter. Thus, the Federal Circuit determined that the claimed signal is not a manufacture.
Judge Linn, dissenting-in-part, argued the claimed signal was a manufacture. Citing the majority opinion for the proposition that the signal claim contemplates “some physical carrier of information,” Linn reasoned the claimed signal required some material to which the signal was input, whether a pulse of energy or a stone tablet, be given a new form, quality or property by direct human action or by a machine, and thus was a new and useful manufacture in the expansive sense of 35 U.S. § 101.” Judge Linn also pointed out that “manufacture” had a second definition as “anything made for use from raw or prepared materials.” Asserting this definition did not require the manufacture be an “article” or a transformed “raw material,” only that it be “something—‘anything’—made from them,” he argued that the claimed signal is an information carrier and that the claim is not an attempt to claim the information itself.
Practice Note: Several cases, including In re Belski (argued on October 1, 2007), on the Federal Circuit dock are likely to further clarify the extent to which the Federal Circuit can be expected to heed the rumblings of the Supreme Court and pre-emptively narrow State Street. The Comiskey opinion already appears to require a claim to recite a “technological art,” a requirement recently eliminated by the Board in its In re Lundgren decision. (See IP Update, Vol. 8, No. 11.)
Patents / Infringement
The Federal Circuit Rejects “Joint Infringement” of a Patent
Contact: Paul Devinsky
In what is almost certain to be viewed as a watershed decision, the U.S. Court of Appeals for the Federal Circuit rejected the theory that the activities of multiple different entities could be combined to find “joint infringement” of a patent. Rather, the Court reaffirmed the rule that for direct infringement, there must be one single person or entity that fulfills all limitations of the claim. BMC Resources, Inc. v. Paymentech, L.P.., Case No. 06-1503 (Fed. Cir., Sept. 20, 2007) (Rader, J.).
BMC owned a patent covering a method for processing debit transactions without a personal identification number (PIN). The claims described an end-to-end system involving a customer, a merchant, a payment processing company and affiliated financial institutions.
It was undisputed that the defendant, Paymentech, did not itself perform all of the steps of the method claim. The sole issue on appeal was whether BMC could pursue a theory of “joint” or “divided” infringement to obtain damages based on the combined actions of Paymentech and the other entities involved in practice of the claimed method.
The Federal Circuit reiterated the rule that “direct infringement requires a party to perform or use each and every step or element of a claimed method or product.” The Court noted that a party may be vicariously liable for the actions of another only “in circumstances showing that the liable party controlled the conduct of the acting party.”
The Court rejected the argument that language in a 2006 opinion, On Demand Machine Corp. (See IP Update, Vol. 9, No. 4), made broad “joint infringement” theories viable. The Court explained "[i]nfringement requires, as it always has, a showing that a defendant has practiced each and every element of the claimed invention. … Where a defendant participates in infringement but does not directly infringe the patent, the law provides remedies under principles of indirect infringement. However, this court has held that inducement requires a predicate finding of direct infringement.”
The Court then acknowledged “that the standard requiring control or direction for a finding of joint infringement may in some circumstances allow parties to enter into arms-lengths agreements to avoid infringement.” The Court observed, however, that these issues usually can be avoided by properly drafting the claims so that a single entity may infringe. Because there was no evidence that Paymentech controlled or directed all of the other steps of the method claim, summary judgment of non-infringement was affirmed.
Practice Note: The Federal Circuit reminds us of the importance of thoughtful claim drafting to make sure that the claims read on the activities of a single entity. The Court has already granted a stay of an injunction pending appeal in Muniauction Inc. v. Thomson Corp., a case that raises a similar issue.
Patents / Standing
Separation of Enforcement from Ownership Leaves No Leg to Stand On
By Paul Devinsky
In a case involving a bankruptcy reorganization in which a trustee in bankruptcy was given the right to pursue claims of misappropriation or infringement (but not ownership of the bankrupt’s intellectual property), the U.S. Court of Appeals for the Federal Circuit reversed the district court finding that the no trustee had standing to bring suit. Morrow, et al. v. Microsoft Corp., Case Nos. 06-1512, -1518, -1537 (Fed. Cir., Sept. 19, 2007 (Moore, J.; Prost, J., dissenting).
Hank M. Spacone, as the trustee authorized to pursue infringement of At Home Corp.’s intellectual property (AHC IP), filed suit against Microsoft alleging infringement. Under the reorganization plan, Spacone has the exclusive right or duty to decide, at his discretion, whether to investigate, pursue or dismiss patent infringement actions (without consultation with co-trustees); collect damages from infringement litigations; incur any liability arising from claims or defenses of any infringement defendant; incur all costs and expenses associated with such litigations; and assume any litigation sanctions. Spacone did require consent from the trustee that owned the AHC IP to settle patent infringement litigation.
Microsoft filed a motion for summary judgment contending that Spacone lacked standing as another trustee, Morrow, had been granted ownership of the AHC IP in the reorganization. Spacone filed a cross-motion for summary judgment that standing existed. The district court denied Microsoft’s standing motion and granted Spacone’s cross-motion, concluding that Spacone had standing to sue under bankruptcy law principles and based on his trust beneficiary status. Specifically, the district court found that Spacone’s rights “arise out of bankruptcy law and trust relationships, rather than a traditional patent licensing relationship.” The district court determined that Spacone had a “proprietary interest” in the patent as AHC’s successor and as a trust beneficiary of the patent (that yet another trustee holds in trust for Spacone), as well as an equitable title holder. The district court did not analyze Spacone’s standing under patent law standing principles. Microsoft moved the district court to certify the standing order for interlocutory appeal, but the district court denied the motion.
Spacone later filed a motion in the bankruptcy court requesting clarification of his rights under the liquidation plan approved by that court. Spacone sought a declaration that he had the right to prosecute and settle patent infringement claims, the right to grant nonexclusive licenses to settle these claims, and the right to receive revenues generated from these settlement licenses. After bankruptcy court ruled in Spacone’s favor, the district court reversed, holding that Spacone did not have the right under the reorganization plan to grant licenses to settle certain litigation or receive licensing revenues since under the liquidation plan, ownership of and licensing rights in the intellectual property was assigned to another trustee.
After the district court granted Microsoft’s motion for summary judgment of non-infringement and invalidity, Spacone appealed. Microsoft also appealed on the standing issue.
The Federal Circuit considered the question as to how bankruptcy or trust law relationships affect the standing analysis in a patent infringement case as a question of first impression. The majority, citing the venerable (1922) Supreme Court case of Crown Die and Tool Co., noted that the patent infringement suit against Microsoft is governed by the patent laws and that it is patent law principles, not bankruptcy or trust law principles, which govern which parties are entitled to assert which rights. Under patent law principles, only a patentee or its “successors in title” is entitled to bring a “civil action for infringement of his patent.” Under Federal Circuit precedent, a successor in title is the party holding legal title to the patent.
In analyzing whether Spacone had suffered any injury in fact as a result of the alleged infringement (to warrant standing), the Court noted that Spacone held no license rights in the AHC IP, much less any exclusive rights. Further, Spacone did not have the right to grant licenses or sublicenses under the patent or to collect licensing royalties. Rather, co-trustee Morrow held legal title to the AHC IP and the right to license third parties and collect royalties from its licenses; royalties not shared with the co-trustees.
Noting that “[t]here are three general categories of plaintiffs encountered when analyzing the constitutional standing issue in patent infringement suits: those that can sue in their own name alone; those that can sue as long as the patent owner is joined in the suit; and those that cannot even participate as a party to an infringement suit,” the Court analyzed which category fit Spacone’s situation.
The first category includes plaintiffs that hold all legal rights to the patent as the patentee or assignee of all patent rights. Additionally, if a patentee transfers “all substantial rights” to the patent to a party, this amounts to an assignment or a transfer of title, which confers constitutional standing on the assignee to sue for infringement in its own name alone. Spacone was not found to fit this category.
The second category consists of exclusive licensees who are granted the right to prevent others from practicing the invention and who hold exclusionary rights and interests created by the patent statutes, but not all substantial rights to the patent. These exclusionary rights “must be enforced through or in the name of the owner of the patent,” and the patentee who transferred the exclusionary interest is usually joined to satisfy standing concerns. The Court found that Spacone did not fit this category either.
The third category consists of those that hold less than all substantial rights to the patent and lack exclusionary rights altogether. Such parties “are not injured by a party that makes, uses, or sells the patented invention because they do not hold the necessary exclusionary rights.” Plaintiffs in this category lack constitutional standing. A non-exclusive license confers no constitutional standing to bring suit or even to join a suit. The Court placed Spacone in this third category.
The Court concluded that although Spacone had been given the naked right to sue infringers under the reorganization plan, Morrow was the patent title holder, holder of the right to sell the patent, to grant exclusive and nonexclusive licenses or transfer any of the rights that it holds to another party. The Federal Circuit noted that unfortunately for Spacone, the “liquidation plan contractually separated the right to sue from the underlying legally protected interests created by the patent statutes—the right to exclude.”
The Court went on to note that Spacone’s future beneficial ownership interest in whatever assets are held by his co-trustee when the wind-down of AHC’s business is completed does not affect the outcome of the standing analysis, finding that an equitable future interest in the patent is not tantamount to legal exclusionary interest as of the time this suit was initiated.
Judge Prost, in dissent, argued that Spacone should be considered a “category two” plaintiff. Under Judge Prost’s analysis, Spacone does suffer an injury in fact since he holds an equitable interest in the title to the patent as beneficiary to the liquidating trust, noting that under the reorganization plan, the liquidating trust explicitly holds the title to the intellectual property in trust for Spacone . Thus, in her view, “infringement of the patent diminishes its value and directly reduces the benefit enjoyed by Spacone.”
Patents / Standing of Exclusive Licensees
No Gaming the System for Standing
By Paul E. Poirot
Following closely on the heels of Morrow, et al. v. Microsoft Corp. (See this issue) and Propat Int’l Corp. v. RPost, Inc., (See IP Update Vol. 10, No. 1), U.S. Court of Appeals for the Federal Circuit has again refused to find standing in a case involving a purported exclusive licensee of a patent attempting to bring an infringement suit in its own name without joining the patent owner. Int’l Gamco v. Multimedia Games, Inc., Case. No. 07-1034 (Fed. Cir., Oct. 15, 2007) (Rader, J.).
International Gamco (Gamco) possessed an “exclusive enterprise license” (a combination of an exclusive territorial license and an exclusive field of use license). The Federal Circuit concluded that an exclusive enterprise licensee, like a field of use licensee, does not hold all substantial rights in the licensed patent within the licensed territory and therefore the licensee did not have standing to sue without joining the patent owner.
Gamco executed an Asset Purchase Agreement with International Game Technology (IGT), by which Gamco assigned the patent in suit to IGT, but reserved for itself rights to sublicense the patent in the New York State Lottery Market and to sue for infringement in that market. Later, Gamco and IGT entered an additional agreement under which IGT granted Gamco the “exclusive” right to sublicense the patent for “the lawful operation of lottery games authorized by the New York State Lottery in the state of New York.” This modification also gave Gamco exclusive rights to sue “for the past, present, and future infringement of the Patent, within the Territory.” Gamco then amended its existing complaint against Multimedia Games alleging infringement of the patent.
Multimedia Games moved to dismiss Gamco’s amended complaint for lack of standing. The trial court concluded that Gamco held an “exclusive enterprise” license—a hybrid between a territorial license and a field of use license. “Rather than being restricted only to a geographic area or only to specific kinds of conduct Gamco’s rights are restricted to the operations of the New York State Lottery, an enterprise of the State of New York.” The trial court then held that Gamco had standing to sue, but certified the question for appeal. The nature of the license was not certified for appeal.
The Federal Circuit held that Gamco did not have standing to sue without the patent owner, noting that the single infringing act of offering New York State Lottery games might subject the infringer to multiple suits, e.g., suit by Gamco under its “enterprise license” for the “lottery” games and a separate suit by IGT or some other game-specific licensee for other games. In reaching its decision, the Court distinguished territorial exclusive licenses, noting that such exclusive licenses exclude “all other persons, even the patentee, from [infringing the patent] within the district.” The Court did not reach the question of whether Gamco could participate in the suit if it joined the patent owner.
Patents / Damages
High Royalty Rates Justified by Margins and History
By Todd Hales
“[G]iven the contentious history between [the] two parties,” the U.S. Court of Appeals for the Federal Circuit found that a 29.2 percent royalty rate for infringement was reasonable and was not an abuse of discretion by the district court or based on clear error. Mitutoyo Corp. v. Central Purchasing LLC, Case Nos. 06-1312, -1343 (Fed. Cir., Sept. 5, 2007) (Mayer, J.).
Mitutoyo owns a patent directed to an electronic caliper. A 1994 settlement agreement between Mitutoyo and Central Purchasing resolved a 1992 patent infringement dispute involving the patent and provided that Central would refrain from any future importation or sale of infringing products. In 1995, Central unsuccessfully sought a declaratory judgment that the subject patent was invalid and unenforceable. Notwithstanding the settlement agreement and the failed declaratory judgment action, Central later began selling digital calipers. In 2003, Mitutoyo sued for infringement. The district court issued a summary judgment of infringement, which was based on a stipulated claim construction, and granted Mitutoyo damages based on a 29.2 percent royalty rate. Central appealed.
The Federal Circuit upheld the infringement finding but reviewed the court’s damages findings. The Federal Circuit agreed with the district court that Mitutoyo failed to establish a market overlap between Central’s calipers and Mitutoyo’s calipers and, consequently, Mitutoyo was not entitled to lost profits. The district court also found that Central’s profit margin was 70 percent and that Mitutoyo’s profit margin was 29.2 percent, and imposed a 29.2 percent royalty rate. The Federal Circuit found this to be a reasonable royalty rate and disregarded Central’s arguments that the district court should have placed more emphasis on facts favoring a lower royalty rate, including figures other than profit margins. In support of its conclusion, the Court stated that the profit margins and the history of the two parties suggest that “it is unlikely that [patent owner] Mitutoyo would have been interested in less than a 29.2% rate.” However, the Court reversed the portion of district court’s damages award, finding clear error in the lower court’s inclusion of such sales in the royalty base.
Finally, the Federal Circuit disagreed with the district court’s dismissal of Mitutoyo’s willful infringement claim, finding that Central had knowledge of the patent at least as early as the 1995 declaratory judgment action. The Federal Circuit thus reinstated the willful infringement claim and remanded the matter to the district court try the claim.
Patents / Inequitable Conduct
Pro Se Applicant’s Fifteen Patents Buried Under Multiple Grounds of Inequitable Conduct
By Krista Vink Venegas, Ph.D.
The U.S. Court of Appeals for the Federal Circuit found a district court did not abuse its discretion in holding 15 patents unenforceable for multiple improprieties by the patentee. Nilssen, et al. v. Osram Sylvania, Inc., et al., Case No. 06-1550 (Fed. Cir., Oct. 10, 2007) (Lourie, J.).
Nilssen filed a patent infringement action against Osram, asserting patents for lighting products, including compact fluorescent light bulbs and ballasts for traditional fluorescent bulbs. Osram’s defenses included patent unenforceability for fraudulent procurement based on improper (1) submission of affidavits; 2) small entity payments; 3) claim of priority dates, 4) disclosure of co-pending patent litigation, and/or 5) disclosure of prior art. By the parties’ agreement, a trial date was granted on the issue of inequitable conduct.
During a six-day bench trial, Osram attacked Nilssen’s 11 asserted patents and four withdrawn patents. The court heard testimony from legal experts (on U.S Patent and Trademark Office procedures), technical experts (on the materiality of withheld prior art) and, most significantly, from Nilssen, the inventor and pro se applicant of the 15 patents. Ultimately, Nilssen’s self-professed knowledge of the patent statutes, USPTO procedures and case law cited during patent prosecution led to his demise. The district court found all 15 patents unenforceable.
The Federal Circuit found no fault with the district court’s rulings on the four withdrawn patents dropped late in the case and held that under the doctrine of infectious unenforceability, the court was justified in considering and ruling upon inequitable conduct of these four patents prior to determining if the same acts rendered the additional 11 related patents unenforceable.
The Court found no fault with the district court’s determination that each grounds supporting inequitable conduct was material to the asserted patents. The Court heavily deferred to the district court’s credibility determination of Nilssen’s trial testimony. “[T]his case presents a collection of … problems, which … indicated repeated attempts to avoid playing fair and square with the patent system. … Mr. Nilssen, while apparently gaining considerable knowledge of the patenting process, thought he did not need professional help. The result of this case, regrettably, proves that he was wrong.” Specifically, Nilssen’s intent to mispay fees was supported by Nilssen’s occasional payment of maintenance fees at the large entity rate. Nilssen’s intent to misclaim priority was supported by evidence of his priority strategy changes and contemporaneous letters expressing concern about obtaining new patents. Nilssen’s intent to hide the co-pending Motorola litigation was not excused by his testimony that he was unaware of the requirement to disclose related litigation, given his broad knowledge of other patent rules. Finally, the finding of intent to withhold prior art repeatedly cited in related patent applications was supported by Nilssen’s failure to provide any good-faith explanation for withholding the prior art.
Patents / Inequitable Conduct
No Explicit Teaching Necessary to Render Isolation of Stereoisomer from Mixture Obvious
By Lisa A. Kilday
Addressing the issue of the obviousness of a compound that is purified from a mixture of related chemical compounds, the U.S. Court of Appeals for the Federal Circuit reversed a district court’s pre-KSR finding of non-obviousness for Aventis’ leading ACE inhibitor, Altace®. Aventis Pharma Deutschland GMBH and King Pharmaceuticals, Inc. v. Lupin, Ltd., Case Nos. 06-1530, -1555 (Fed. Cir., Sept. 13, 2007) (Linn, J.).