Rosebud sued Adobe for infringing Rosebud’s ’280 patent. Adobe moved for summary judgment on the grounds that it ceased making and selling the accused product before the ’280 patent issued and that it could not be liable for damages under 35 U.S.C. § 154(d) for making the invention claimed in a published application, but it had no actual knowledge of the ’280 patent’s published application. Rosebud argued that genuine issues of material fact precluded summary judgment, because Adobe was aware of the parent patents to the ’280 patent, Adobe tracked Rosebud’s activities, and patent counsel would have searched for pending continuation applications to the parent applications. The court held that Section 154(d) only requires actual knowledge of the published application by the accused infringer, not, as Adobe argued, that Section 154(d) required that the patent owner give actual notice of the published application. Applying that standard to the facts, the court affirmed the district court’s finding that there was no genuine issue of material fact that Adobe lacked actual knowledge of the ’280 patent’s published application.
Rosebud LMS Inc. v. Adobe Systems Incorporated, Case No. 2015-1428 (February 9, 2016); Opinion by: Moore, joined by Hughes and Stoll; Appealed From: United States District Court for the District of Delaware, Robinson, J. Read the full opinion here.
