Originally Published MX January/February 2004

GOVERNMENTAL & LEGAL AFFAIRS

The evolving Festo case underscores the importance of protecting core technology.

Mark D. Barrish and Scott M. Smith

In September, the U.S. Court of Appeals for the Federal Circuit handed down the latest in a series of decisions in the patent infringement case Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. Ltd. and SMC Pneumatics Inc., commonly referred to as Festo.¹ The Festo decisions have been followed closely by patent attorneys, who are challenged to decipher the sometimes obscure and arguably inconsistent language of the courts' holdings in order to determine how best to protect their clients' inventions.

At the same time, medical technology company executives have probably at least heard of Festo.² Many of them are wondering what practical implications the evolving case may have for the security of the intellectual property (IP) that is an important element of the value of a medtech enterprise. Although the Festo decisions are difficult to understand, a few practical strategies nevertheless are suggested by the latest ruling.

Previous Festo Decisions