Opinion
No. 2009-1193.
February 17, 2010.
Appeal from the United States District Court for the Southern District of Florida in case no. 06-CV-81105, Judge Daniel T.K. Hurley.
Robert R. Waters, Enrico A. Mazzoli, Waters Law Group, PLLC, Louisville, KY, Olen L. York III, Waters Law Group, PLLC, Huntington, WV, for Defendant-Appellant.
Mark L. Levine, Mark S. Ouweleen, Shayna S. Cook, Bartlit Beck Herman Palenchar, Chicago, IL, Sean C. Grimsley, Bartlit Beck Herman Palenchar, Denver, CO, for Plaintiff-Appellee.
Before BRYSON, LINN, and DYK, Circuit Judges.
ORDER
The judgment in this case is affirmed. With respect to the inequitable conduct claim, we uphold the district court's ruling of no inequitable conduct based on the court's finding that the inventors did not act with the intent to deceive the Patent and Trademark Office; we do not address the question whether the information that was not disclosed was material. With respect to the public use issue, we uphold the district court's conclusion that the appellant Phenix failed to prove by clear and convincing evidence that the invention was in public use more than one year before the filing date for the patent; we do not address the question whether any alleged use of the invention during the period prior to the filing date of the patent fell within the experimental use exception to the public use doctrine.