Today’s caselaw environment seems to have sent the phrase “valid and infringed” into the closet of the lexicon of American patent law. We just don’t see it very often these days, thanks in large part to KSR v. Teleflex and a few other key decisions.

I decided to assemble a validity scorecard to help stakeholders watch the trend as it continues to develop. The scorecard is a simple tally of decisions in which the Court of Appeals for the Federal Circuit reached patent validity on the merits. Sure it’s a simple bit of anecdotal evidence, but I’m confident it will prove interesting over time. I’ll update the scorecard monthly.

Here’s the scorecard for January, 2009:

Valid: 0

Invalid: 4

During the month of January, the court issued four substantive opinions that addressed validity on the merits. Of those, the court held the patent invalid every single time (three for obviousness, one for lack of patentable subject matter).

Here’s the details (with links)

• Panavise Products v. National Products – validity not at issue (PTP review)
• Vehicle IP v. General Motors – validity not at issue (PTP review)
• Lencco Racing v. Jolliffe – no substantive opinion issued
• Tokyo Keiso v. SMC – affirmed invalidity for obviousness (PTP review)
• Zipwall v. Fastcap – no substantive opinion issued
• Friskit v. Realnetworks – affirmed invalidity for obviousness (PTP review)
• In re Comiskey – invalid for lack of patentable subject matter (sua sponte) (PTP review)
• Boston Scientific v. Cordis – reversal of validity; invalid for obviousness (PTP review)
• Sud-Chemie v. Multisorb Technologies – validity not reached on the merits; remanded for further proceedings (PTP review)