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BAY AREA PATENT CASE NOT ROCKED BY ‘OBVIOUSNESS’ OPINION The new, more relaxed standardfor a patent’s “obviousness” and validity set down by the U.S. Supreme Court’s recent KSR v. Teleflex opinion is being put to the test in federal courtrooms across the country. In San Francisco, what may be one of the first trial tests of the standard came up in a late-June case before U.S. District Judge Maxine Chesney. Milpitas-based Celerity Inc. had accused chief rival Ultra Clean Technology, of Menlo Park, of infringing on two patents related to the manufacture of semiconductors. Ultra Clean, represented by Perkins Coie partner Paul Andre, had argued that the patents were invalid under the new KSRstandard. On June 25, a jury found both patents to be valid, and found Ultra Clean had infringed on one of them. The jury awarded $13,900 in damages to Celerity, which was represented by Thelen Reid Brown Raysman & Steiner partner Keith Slenkovich. Ultra Clean had not yet sold any products utilizing the infringing patent, Slenkovich said. A key factor in how the new standard was handled in the trial was the jury instruction on obviousness, the attorneys said. In Slenkovich’s view, Chesney ably applied the KSRopinion � which got rid of an earlier, stricter obviousness test. “Judge Chesney did a good job,” he said. He added that the application of the new standard was probably difficult because many in the legal community consider the opinion in KSR v. Teleflex, 07 C.D.O.S. 4654, to be on the vague side. Andre, on the other hand, said he thought Chesney could have taken the new standard further. “The judge in her jury instructions did not deviate very far from the previous standards in model jury instructions on obviousness,” he said. “We were asking the court to apply more along the lines of the KSRcase. The court rejected those requests.” The jury’s findings on patent validity serve as proof that the new obviousness standards don’t spell doom for patent holders, Slenkovich said. He’s now convinced that the KSRstandard is “not as big a deal” as many patent holders feared. “You still have some arrows in your quiver if you’re a patent holder,” he said.

Jessie Seyfer

NO ALTERNATING COMPLEX CASES Change is afoot in San Francisco Superior Court’s complex litigation department, where Judge John Munter began a new assignment on July 2. Presiding Judge David Ballati said the state Administrative Office of the Courts has voiced support for the creation of a second complex litigation courtroomin San Francisco, even though it hasn’t formally approved the extra funding yet. Ballati said he hopes to receive state funding “in the neighborhood of $225,000″ to pay for the expansion. Last year, he said, the court spent just under $421,000 on the complex litigation courtroom already run by Judge Richard Kramer, who remains in the same assignment. Cases assigned to the complex litigation department � class actions and mass torts, among others � usually require extra resources from the courts. Munter said he and Kramer together will have the chance to test creative approaches to case management, “where you’re not always locked in to the traditional ways of proceeding.” One example of this flexibility is the way that complex cases will be assigned. Instead of splitting up cases by case number, as Alameda County’s complex litigation department and some others do, Munter said he and Kramer will talk about each new case individually to figure out who should be the judge. “Our plan is to have no plan,” Munter said. “In other words … the only real rule or practice that we’re going to follow is to take into account all the facts and circumstances and do what’s best for the lawyers in the case, the resources and so forth.” In the Alameda County Superior Court, all odd-numbered cases automatically get assigned to Judge Robert Freedman, and all even-numbered cases are assigned to Judge Bonnie Lewman Sabraw. That system “allows a consistent method of evenly allocating the caseload between the two departments, [and] it gives counsel predictability,” Freedman said. The judges view it differently in San Francisco. Kramer said that litigants come to the complex courts expecting individual attention, and he treats each of them differently. “It doesn’t do you any good at all to try to count beans here,” he said. Kramer said judges in the complex courts are required to use resources efficiently, and assigning cases on an even-odd basis would be “totally random in terms of the allocation of our resources.” One possible advantage of the Alameda County system: With cases assigned automatically, neither judge can complain that the other is hogging all the most interesting cases. Munter said he doesn’t expect to have problems splitting up cases with Kramer. After all, he said, the two have known each other for years and their approaches to litigation are very similar.

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