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February 19, 2010


"Pergo and Alloc are direct competitors in the field of laminate flooring. Pergo owns the 6,421,970 and 6,397,547 patents, which relate to mechanical joints that enable flooring panels to be joined without the use of glue or other fasteners, such as nails or metal clips. Alloc brought a declaratory judgment action against Pergo seeking a declaration that the '970 and '547 patents were invalid, unenforceable, and not infringed. Pergo counterclaimed for infringement of both patents." Both patents were found "invalid on multiple grounds and not infringed." Having achieved its goal, Alloc then overreached to inequitable conduct, which the district court denied.

Alloc v. Pergo (CAFC 2009-1107, -1122) non-precedential

The only surprise on appeal was the CAFC surprised about claim construction going to the jury.

However, although we need not reach the infringement analysis, we note that the district court surprisingly presented the claim construction to the jury. Claim construction has always been a legal issue for the court and not within the fact-finding role of a jury. Sulzer Textil A.G. v. Picanol N.V., 358 F.3d 1356, 1366 (Fed. Cir. 2004). The district court's submission of the claim construction to the jury, leaving the jury free to make its own determination of the meaning of the claims, was error. Here, the error is harmless due to our obviousness ruling but the district court's procedure is not one supported by the law. Id. at 1366-67.

The patents weren't merely obvious, they were most sincerely obvious.

The nine prior art references for claim 32 of the '547 patent were more than sufficient to support the jury's finding of obviousness.

The state of the law on inequitable conduct -

See Cargill, Inc. v. Canbra Foods, Ltd., 476 F.3d 1359, 1364-65 (Fed. Cir. 2007). Inequitable conduct requires proof, by clear and convincing evidence, that a patent applicant: 1) made an affirmative misrepresentation of material fact, failed to disclose material information, or submitted false material information and 2) did so with an intent to deceive. See id. at 1363. With respect to materiality, "information is material when a reasonable examiner would consider it important in deciding whether to allow the application to issue as a patent"; information is not material if it is cumulative of other information already disclosed. Star Scientific v. R.J. Reynolds Tobacco Co., 537 F.3d 1357, 1367 (Fed. Cir. 2008). With regard to deceptive intent, intent cannot be inferred solely from the fact that information was not disclosed; though non-disclosure may support a finding of intent. See M. Eagles Tool Warehouse, Inc. v. Fisher Tooling Co., Inc., 439 F.3d 1335, 1340 (Fed. Cir. 2006).


Posted by Patent Hawk at February 19, 2010 9:37 AM | Claim Construction


Pergo have also a suit in Germany claiming of further patent infringements, ter Hurne and Hamberger Flooring have infringed on the two different laminate flooring patents in Germany and an additional two more legal actions have been brought against two utility models in Germany.

The company feel that their Fold Down laminate flooring by a similar version used by Hemberger in their TopConnect range.

Posted by: Laminate Flooring at October 19, 2010 6:06 AM