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Whether each of the 2 prongs of § 295 has been met just isn’t decided subjectively by the plaintiff, however is decided objectively by the court. Make sure to ask about their expertise and success price in instances just like yours. The particular point during a trial when the trial court ought to resolve a § 295 motion raised by the patentee will vary with the details and circumstances of each cas Because substantial evidence supports the ALJ’s underlying finding that an inexpensive plaintiff would have the flexibility to decide the method used, we find no error in the ALJ’s conclusion that § 295 didn’t apply and the burden remained with Nutrinova to prove infringement.

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