Interestingly, the Federal Circuit is now confronting whether a good faith belief in noninfringement
should not be a defense at the ITC because the relief there is entirely prospective.
87) After post-trial motions, the district court denied Limelight's motion "for judgment of noninfringement
as a matter of law" but later granted its motion for reconsideration.
See Complaint for Declaratory Judgment of Patent Invalidity and Noninfringement
at 4, Fresenius USA, Inc.
While, as these cases suggest, courts in trademark cases are sometimes unwilling to recognize any trademark rights when they are concerned about scope, in other cases courts are more comfortable finding noninfringement
As an illustration of this, consider a recent opinion of the Fourth Circuit, reversing a trial court's finding of noninfringement
on a motion to dismiss.
ANDA applications cannot even be submitted during the period of exclusivity unless they contain a certification of noninfringement
or that the NDA patent is invalid.
10) See generally Roger Allan Ford, Patent Invalidity Versus Noninfringement
, 99 CORNELL L.
If litigation counsel develops a reasonable invalidity or noninfringement
theory, willfulness cannot be found, regardless of the state of mind of the infringer when it started to infringe.
invalidity or noninfringement
to obtain certainty before entering the
Although reasonable efforts were made to confirm the accuracy of the information, Alberta Health Services does not make any representation or warranty, express or implied, oral or written, statutory or otherwise, as to the accuracy, reliability, completeness, applicability or fitness for the particular purpose of such information, including without limitation implied warranties or warranties of noninfringement
Gallagher has been involved in all aspects of Hatch-Waxman practice, including advising on Abbreviated New Drug Application (ANDA) filings, development of noninfringement
and invalidity arguments for FDA-required notice letters, and in every phase of litigation through trial and appeal to the Federal Circuit Court of Appeals.
Where Warranty of Noninfringement
Claims for GPL'd Software