Thursday, October 04, 2012

Jury can't construe patent claims as part of false advertising case

Sidense Corp. v. Kilopass Technology Inc., 2012 WL 4497346 (N.D. Cal.)

I’ve written about this case before; in this pretrial motion, the court granted a motion in limine excluding any evidence that Sidense’s patents didn’t cover its own technology, which was the basis of Kilopass’s false advertising claim (that Sidense falsely claimed that its own technology was patented).  Patent claim construction/scope is an issue for the court; Kilopass never presented evidence and asked the court to rule on whether Sidense’s patents covered its own technology; Kilopass was not going to be allowed to present evidence to the jury about patent construction and scope, even alleged admissions by Sidense witnesses that the technology wasn’t patented.  Given the expense of claim construction, this rule might prove as fatal to many patent mismarking cases trying to use the Lanham Act as the AIA has to straight-up mismarking cases.  Since this gutted the false advertising claim, the court indicated that it was unlikely that any triable disputes of material fact remained.  Kilopass was also not allowed to present evidence of allegations not included in the complaint, since that would violate the requirement to plead false advertising with particularity.

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