Will the Court Correct the Mess that is GS CleanTech Corp. v. Adkins Energy LLC?
Rebecca Tushnet's 43(B)log 2020-04-23
Summary:
by David Hricik, Mercer Law School
In my earlier post, I noted some of the clear errors in the panel decision in GS CleanTech Corp. and Cantor Colburn LLP v. Adkins Energy LLC (Fed. Cir. 2020) . The patentee has filed for rehearing en banc, and the petition is here. I wish I had time to write an amicus brief in support, but after giving a CLE today about the case (here is link but you have to buy it, I think) and reading that brief, I believe the problems with the case run far deeper than I originally thought and even deeper than that brief points out.
Here’s why.
When inequitable conduct is asserted, often it is bifurcated from validity/infringement. Where either a jury finds invalidity, or as in CleanTech the judge did on summary judgment, and that finding is based upon allegedly withheld art, the patent owner will need to appeal (to avoid CleanTech). But, there is, under those circumstances, no final judgment.
Nor will any judgment fall within any exception — at least not very often. The patentee likely won’t be able to seek appeal under Fed.