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Law of Cards: The Wildcat Case is Getting Frisky!

Law of Cards: The Wildcat Case is Getting Frisky!

For a case that cat-napped for a long time, there's suddenly a lot of life in the Wildcat electronic trading card patent lawsuit.

Since my last update, two more notable actions have occurred. First, the Patent Office (PTO) issued an order granting reexamination of the Wildcat patent. Basically, the PTO has indicated it would like to look over the patent to see if it should have been issued in the first place.

Legal translation of the Wildcat re-exam order: Uhh, yeah, hi, guys. This is the PTO. And, like, we may have messed up in issuing that patent. Sorry! So, like, let's do a 'do over' here to see if we got it wrong.

In the 14 page reexamination notice (don't worry, I'll only bore you with two sentences), the PTO gives its reasoning:

Since these teachings directly related to the subject matter considered as the important features in the patent claims, a reasonable examiner would consider evaluation of the Garfield reference as important in determining the patentability of the claims…As such, it is agreed that Garfield alone or with combinations thereof raise a substantial new question of patentability with respect to claims 1, 9, 10, 12, 13, 21, 29, 30, 32 and 36.

Legal translation: It’s somewhat fitting that the reason the PTO wants to take a second look at the Wildcat patent is due to another patent invented by a guy named Garfield. Yes, a domestic cat may be taking down a wild cat.

So does this order mean the Wildcat patent is dead?

No. Just because the PTO wants a do over does not mean it'll kill the patent. Quite a few patents survive the reexamination process unscathed, or with minor changes.

But, the reexamination is a victory for the defendants, especially for Panini and Topps. You see, as the above quote states, the reexamination applies to claims 1, 9, 10, 12, 13, 21, 29, 30, 32 and 36. And this leads us to the second new event in the underlying court case: Wildcat just filed its analysis explaining why the defendants allegedly infringe its patent. While these documents don't have much meat on their bones for Topps and Panini's alleged infringement, what stands out is that Wildcat is only asserting some of the patent claims against the defendants.

And all of the claims that Wildcat is asserting against Topps and Panini are being reexamined by the PTO.

In my last update, I discussed the patent defense playbook, and how reexamination was a powerful tool. Here's why: the PTO gets its second chance to kill the claims at issue, and that's while the defendants in court get, in essence, a third chance to try and kill the same claims.

Wildcat better hope its patent has nine lives. As I count, we're on number three now.

This doesn't mean that Topps and Panini are going to win the case. Wildcat can still win at the PTO and at court on invalidity, and can still prove infringement at court, but there's a lot more work for it to do to get there.

So, as of now, Topps and Panini are sitting prettier than they were two weeks ago.

You might say that right now they are pretty cool cats.

Click here for a copy of the re-exam order.

The information provided in Paul Lesko’s "Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Firm or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

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Paul Lesko has litigated complex and intellectual property actions for over 18 years. Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid card collector. He's also the author of the novel Gastric Bypass, available for purchase at Amazon. Paul can be found on Twitter @Paul_Lesko and Google+.

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