While the statement acknowledges that the ADSA system is now included in the infringement case – it was added to the injunction during the contempt finding – Innova contradicts the idea that the court rulings affect sales of exported equipment, asserting that, “The litigation between InnovaSystems and Proveris involves only the OSA and ADSA systems within the United States.”
Innova VP Henrik Krarup issued a statement to OINDPnews.com expressing a belief that the patent reexamination would put an end to the case: “On June 29, 2011, the USPTO issued an Order for Re-Examination of Proveris’ U.S. Patent No. 6,785,400 (the ‘400 patent) indicating that nearly 60 separate and distinct grounds for rejection exist with regard to the claims at issue in the ‘400 patent including, most significantly, all 9 of the rejections (proposed by InnovaSystems) regarding independent claim 3. Given the likelihood that the at-issue claims will be modified by amendment and, more likely, even be canceled by the USPTO, the proceedings in the Inter-Partes Reexamination are likely to render moot the issues in the case between InnovaSystems and Proveris.”
According to Krarup, “the USPTO believes that claims 3-13 of the ‘400 patent were not properly issued and has adopted nearly 60 various bases to support that decision. Given the vast scope and number of rejections, there is little to no likelihood that claims 3-13 of the ‘400 patent will survive reexamination in their current form, if at all.” The USPTO has the option of making partial changes to a patent and does so most of the time that it issues a reexamination certificate.
While the Patent Office regulations say that the office issues an order for inter partes reexamination of a patent only “If a substantial new question of patentability is found,” data from the USPTO show that the office accepts 95% of Inter Partes reexamination requests and confirms all claims only 13% of the time. However, since 1999, the USPTO has issued only 278 certificates after accepting 1286 requests for reexamination.
Farina says of both the USPTO reexamination and a European patent review, “we are confident that we will prevail.” “Furthermore,” he says, “on 19/JUL/2011 the U.S. District Court denied Innova’s motion for a stay of the contempt action pending the U.S. reexamination and ruled that ‘Reexamination is simply immaterial to the contemptuous violation of a valid court order.’”
In the meantime, laboratories using one of the Innova systems for plume geometry and spray pattern analyses are stuck in the middle of the dispute. Some labs, according to Farina, have stopped using Innova spray analyzers as soon as their attorneys have looked into the issue of infringement. Other customers are sticking with Innova. Whatever happens on September 6, it seems unlikely that the dispute will be completely resolved anytime soon.
