Does Invalidation of Independent claim affect dependent claim?


Situation(pertains to US): Patent "P" has 10 claims of which Claims 1, 3, 6 were held to be invalid in Federal Court litigation. What happens to the rest of the claims in the Patent? Can the patentee still assert the rest of the claims, say Claims 2,4,5,7-10, which were not part of the litigation in the Federal litigation?

In short what is status of claims of a patent which has at least one of its claim invalidated in Federal Court?


Posted 2015-04-02T04:27:04.307

Reputation: 51



Claims 2,4,5,7-10 will remain to be valid.

35 U.S. Code § 282 - Presumption of validity; defenses

(a) In General.— A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.

Also reed book exerpts Patent Law Essentials page 86-87

Also see answer Is a patent enforceable based on a claim that is dependent on an independent claim that is not enforceable?


Posted 2015-04-02T04:27:04.307

Reputation: 2 115