Patent Law
The Patent Prospector 
News, information, and commentary relating to the life cycle of patents.
Post Frequency: 2.6/day Last Entry: November 20, 2009 at 01:30:05 Recent Entries: 791
By Gary Odom and Jordan Kuhn
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Fatigued
Posted on November 20, 20096,100,287 claims a nutritional supplement for "enhancing muscle performance" and recovering from fatigue. Iovate sued BSN over '287. The district court found the asserted claims anticipated by advertisements in Flex magazine. It took no muscle flex for the CAFC to confirm...
Heritage of the Heretic
Posted on November 15, 2009In the ultimate backfire, political hack Jon Dudas has left his mark on the patent office. Dudas demeaned the PTO by being openly hostile to its bread-and-butter clientele, patent applicants, with proposed rules that would limit claims and even applications, in a banal attempt to address pendency...
All Red Hat and No Cattle
Posted on November 14, 2009The open source software crowd have had their knickers in a twist for some time about patented processes via software, being fervently against them, and having more generally quaint notions about intellectual property, including copyright. Patrick Anderson provides an incisive analysis of this week's tempest in a teapot in his blog entry: "Free" Sells, But Who's Buying?...
Rotten at the Core
Posted on November 12, 2009The nature of human organizations is for their collective morality to sink to the lowest common denominator. Which is low, to the level of greed unbridled. After all, corruption is human nature. Intel is trying to get the antitrust monkey off its back by paying off rival AMD $1...
Incoming
Posted on November 10, 2009J. Michael Jakes had one helluva day being slammed with well-deserved shots from Supreme Court Justices in oral arguments Monday. Jakes represents Bernard Bilski in his quest for a patent on a ridiculously vague claim for managing risk. On the government's side, Deputy Solicitor General Malcolm L...
Sharpened
Posted on November 10, 2009Samsung has been stung by Sharp at the ITC over flat-panel LCD display patents. One of the Sharp patents in the case went to LCD brightness and refresh rate, and another to minimizing flickering. Samsung has brushed aside speculation about the ruling's impact, stating that it won't affect the company's ability meet market demand...
Out of Hand
Posted on November 08, 2009The New York Times turns troglodyte on invention, fearing patents can "stifle competition and infringe on the rights of non-patent holders. Not every bright idea should be protected as a property right." Only bright ideas that take jobs from workers...
One Upmanship
Posted on November 06, 2009Inventors and small companies, flush with money burning a hole in their pockets, regularly file an excess of crappy patent applications. Belatedly recognizing this inviolable fact, the patent office now promises to shoot you in the head faster if you'll shoot yourself in the foot first...
License Crossed
Posted on November 03, 2009Philips and 3M inked a patent cross license in 1995. The next year, 3M spun off Imation. The agreement, which granted license to subsidiaries, continued. In 2003, Imation formed a joint venture that created GDM. In 2006, Imation acquired Memorex. In 2007, Imation filed a declaratory judgment action seeking a finding that GDM and Memorex are licensed subsidiaries under the agreement...
Blow Job
Posted on October 06, 2009GE blew Mitsubishi into the ITC for infringing wind turbine patents 5,083,039; 6,921,985; and 7,321,221. Mitsubishi was initially found in violation for '039 and '985. Then the political breeze blew in. ITC's Office of Unfair Import Investigations (OUII), assigned to represent the public interest, disagreed with the initial finding...
Claim Aneurism
Posted on October 03, 2009Edwards Lifesciences sued Cook over four patents claiming intraluminal grafts to treat aneurisms. The claimed invention was construed to require a "malleable wire," which the accused products lacked, having instead "self-expanding wires...
The One That Got Away
Posted on October 02, 2009Leland Stanford Junior University and Cetus researched HIV in the late 1980s and early 1990s. Written "agreements provided Cetus with licenses to technology that Stanford created as a result of access to Cetus's materials." In December 1991, Roche bought the part of Cetus's business involved in that research [the PCR division], and started making HIV detection kits...
Fraudulent
Posted on October 01, 2009Advanced Software sued Federal Reserve banks and Fiserv in Federal district court for infringing process patents "for detecting fraudulent bank checks." The checks at issue were U.S. Treasury checks. 28 U.S.C. Section §1498(a), dating to 1910 and broadened as a World War I war powers act, limits patent infringement liability by the U...
Productivity
Posted on September 28, 2009In the eyes of an economist, all inventions go to one purpose: increasing human productivity. Less effort for equivalent result. More bang for the buck. Patents are intended as incentive for increasing productivity. Patentability is circumscribed by utility: a patented invention must be useful...
Brain Damaged
Posted on September 27, 2009Janssen battled a gaggle of generic drug makers over "a method for treating Alzheimer's disease with galanthamine." The patent of contention was 4,663,318. The issue before the courts was enablement (§112 ¶1), which, on appeal, the CAFC majority tied to utility (§101) for instant determination...
Antipsychotic
Posted on September 26, 2009Teva and Sandoz tangled with AstraZeneca by trying to butt in on its patented antipsychotic drug. Their filing an ANDA riled AstraZeneca to assert infringement of 4,879,288. Defendants filed a summary judgment motion of inequitable conduct, which the district court denied...
Stamped
Posted on September 25, 2009Kara Technology owns 6,505,179 and 6,505,179, claiming verifying the authenticity of documents, such as postage stamps and airline tickets. Kara sued erstwhile business partner Stamps.com for infringement. Kara got a bad claim construction and lost at trial...
Teed Off
Posted on September 23, 2009Dr. Richard S. Lister came up with the idea of letting golfers tee fairway balls "to obtain better scores in a shorter time." In 1994, pro se, he submitted a manuscript to the Copyright Office. Two years later he caught wind that he needed to file a patent...
Stirred
Posted on September 21, 2009Vita-Mix is a blender maker with 5,302,021. Vita-Mix sued competitor Basic for patent and trademark infringement. The district court let Basic off the hook in summary judgment. On appeal, the CAFC limited prosecution disclaimer, and found potential matters of fact that revived the issue of infringement...
Stood Up
Posted on September 19, 2009AsymmetRx sued Biocare over cancer detection patents which Harvard owns by assignment. AsymmetRx had a conditional exclusive license, while Biocare had its own conditional non-exclusive license. Before asserting the patents, "AsymmetRx was to 'give careful consideration to the views of Harvard and to potential effects on the public interest in making its decision whether or not to sue...
Patented Treatment
Posted on September 18, 2009Prometheus Labs got patents (6,355,623; 6,680,302) on "methods for calibrating the proper dosage of thiopurine drugs, which are used for treating... autoimmune diseases." "[N]on-responsiveness and drug toxicity may complicate treatment in some patients...
No Padding
Posted on September 14, 2009Lydall sued Federal Mogul for infringing RE39,260. "The '260 patent is directed to flexible insulating shields that can be used for thermal and acoustic insulation." It came as no consolation that there was no insulation from a claim construction that rendered the assertion a dereliction...
Form Fitting
Posted on September 11, 2009In the salad days of personal computing, Ben Day came up with a "touch screen form entry system" while working at AT&T. 4,763,356 resulted. Current owner Lucent disingenuously sued Dell and Gateway over it, while Microsoft software was the real culprit...
Petrified Wood
Posted on September 09, 2009Carpenter Ron Nystrom has been trying to beam Trex and others with 5,474,831, claiming a wood flooring. In his first suit against Trex, he lost on claim construction, appealed, got a remand, but had waived equivalents, and so the case fell to the floor...
Healthy Assertion
Posted on September 04, 2009Martek and Lonza vend a health supplement made "by extracting lipids from fermented microorganisms - specifically certain microalgae." Martek owns patents it asserted against Lonza: 5,340,594; 5,698,244; 6,410,281; and 6,451,567. Some claims were found infringed in district court, and thereupon the inevitable appeal...
Junk Examination
Posted on September 04, 2009To characterize USPTO examination quality over the past 20 years as uneven would be a complimentary understatement. 'Good enough for government work' would be more like it, with 'shoddy' pithily on-point. In the 1990s the PTO granted reams of junk patents, creating a political firestorm as the junk hit the litigation fan...
Compound
Posted on August 26, 2009Ortho-McNeil sued Teva over RE39,221, claiming a combination of acetaminophen and tramadol, branded as Tylenol®. The district court granted summary judgment of obviousness to all asserted claims, as well as finding one claim, 6, anticipated. Ortho-McNeil appealed...
Standing
Posted on August 22, 2009Sky Technologies sued SAP over an e-trade patent portfolio it had acquired through a foreclosure and associated contractual conniptions. Because litigation lawyers argue almost anything regardless of merit, SAP pitched lack of standing and lost, so it appealed, desperately trying to break the chain of title...
Ticker
Posted on August 22, 2009Cardiac Pacemakers sued St. Jude Medical for infringing 4,407,288, claiming an implantable cardiac defibrillator (ICD). On second appeal, while multiple issues get the ticker running quicker, what really pumps is excluding method claims from Section 271(f)...
Disclaimed
Posted on August 19, 2009RFID Tracker sued Wal-Mart and others for infringing 6,967,563, claiming an RFID reader. The district court judge construed the claim to exclude the RFID reader from also being a transmitter, owing to prosecution disclaimer. Hence, the defendants could not be tagged for infringement, because their reader included a transmitter...
In the Weeds
Posted on August 15, 2009Callaway Golf sued Acushnet over four golf ball patents. Acushnet teed itself up with an admission of infringement, but tried to whack the asserted claims into the sand trap of prior art invalidity. The district court judge granted summary judgment of no anticipation...
No Bites
Posted on August 13, 2009Wedgetail sued Huddleston for infringing its fishing lure patent 6,857,220 B2 ('B2' being USPTO technical designation for "bait too"). After claim construction, Wedgetail concluded snagging Huddleston for infringement could be fishy. "Wedgetail thus filed a motion to dismiss all claims with prejudice, in which it granted Huddleston a covenant not to sue...
Flat Tire
Posted on August 11, 2009Douglas J. Shoner had a pneumatic tire design rejected by the PTO over obviousness. Shoner appealed to the CAFC, which affirmed. Shoner's plea (hardly an argument) relied upon reading an unstated limitation into his claim from the spec. "The PTO is required to give claim terms their "broadest reasonable interpretation consistent with the specification," and there is nothing in the specification that would explicitly limit the air chamber to a particular structure...
Patent Contraceptive
Posted on August 07, 2009The danger lurking in obviousness is hindsight reasoning. A breakthrough becomes predictable. In hindsight, you/they/whoever should have seen it coming. Bayer's oral contraceptive, Yasmin®, had unexpected performance. The active ingredient, drospirenone, readily degraded in an acidic environment like the stomach...
Particular Inequitable Conduct
Posted on August 06, 2009Exergen stuck SAAT and others for infringing 5,012,813; 6,047,205 and 6,292,685, claiming infrared thermometers taking skin readings. A jury awarded over $2.5 million in lost profits. SAAT appealed, getting '205 claims invalidated on anticipation, and skirting infringement on '813 and '685, thus winning overall...
Shortchanged
Posted on August 05, 2009Jorge Tayler was mistakenly $10 short on his patent maintenance fee payment. The USPTO later declared his patent dead because of it, in violation of its own rulebook, the MPEP. "The PTO was arbitrary and capricious in its failure to notify Mr. Taylor of the minor insufficiencies in his attempted payment of a patent maintenance fee," so ruled the CAFC (2009-1133)...
Sop
Posted on August 02, 20096,310,269 claims a tampon with a solid fiber core denser than radially projecting ribs, the ribs being narrower at their base at the core than at their distal ends. McNeil, the patent holder, requested reexamination based upon an uncited Japanese patent application...
Claimless
Posted on July 31, 2009Wavetronix sued EIS for infringing its traffic monitoring patent: 6,556,916. On summary judgment, '916 was found not infringed. Wavetronix appealed, begging the court to construe a crucial term that was never construed in the first place, as the Utah district court never entered a claim construction order...
Last Hurrah
Posted on July 28, 2009Martin Reiffin was a former patent attorney at IBM, who pulled a patented claim to multithreading out of the PTO 15 years after his original application filing date of 1982. A seriously vile junk patent. He then sued Microsoft over Word's spelling checker...
Erased
Posted on July 27, 2009Was it excrescent examination, or just deviously scrappy litigation? Blackboard's 6,988,138, claiming an Internet education system, got erased by Desire2Learn on appeal. Indefiniteness for lacking a backing structure for a means-plus-function limitation, and a devious claim construction gone awry, left Blackboard with a failed assertion...
Lever
Posted on July 27, 2009Bernard Bilski and his buddy got a nebulous notion about risk management. So they hired a run-of-the-mill prosecutor to scratch a sketchy spec and draft some bodaciously crappy claims. The PTO pitched the poop. But then the CAFC fouled the plumbing with precarious precedent, so the Bilski bauble floated to the top, where the Supreme Court has the final flush, but the only needed motion is reiteration...
Off the Shelf
Posted on July 21, 2009Saint-Gobain sought declaratory judgment of noninfringement and invalidity over refrigerator shelf patents owned by competitor Gemtron. Gemtron counterclaimed and ended up as plaintiff. The dispute came down to a single limitation in a single claim, over when the claimed invention had the glass panel shelf bottom snap into the frame...
Peers on Hiatus
Posted on July 11, 2009The Peer-to-Patent pilot project is now closed. From the Peer-to-Patent website: The USPTO has closed the Peer-to-Patent pilot and is no longer accepting new applications. Applications already in the system will continue to be processed. More than 70 applications still await review, and it is rumored that the program is only temporarily closed - until a full evaluation of the impact of the project can be performed...
Examiner Responsibility
Posted on July 11, 2009USPTO examiners are the butt of many a joke on this blog, and often for good reason, receiving the respect they deserve. But, many examiners fulfill an essential need. They act as underappreciated civil servants that help promote the progress of this country, in a job that is tedious, monotonous, and often unfulfilling...
Almost Enough
Posted on July 11, 2009This weblog started to promote my patent services practice. Anyone who has read my blogging for any period knows that many of my entries are hell and gone from that. The left turn was conscious and, given my character, inevitable. Digging into the patent scene was no different than my reaction to the practices of people exercising presumed power in any form, given the endless capacity for exploitation and rationalization of it...
Beaned
Posted on July 10, 2009In permissible hindsight, the PTO during the Clinton administration was so lenient in doling out patents that Obzilla (aka KSR) became a necessity to expeditiously clean up the mess. Case in point: letting Larry Proctor patent a transplanted yellow Mexican bean after growing it for a few seasons...
Bailout
Posted on July 09, 2009Mismanagement at the USPTO gets a thumbs up from Congress. The House went along with the Senate in passing a bill Tuesday that would let the PTO rob its trademark kitty to tide over its dwindling patent piggy bank. In a politically inspired balk (from mega-computer/software companies whining about being incessantly hammered for infringement), the patent office has been rejecting patent applications with religious fervor in recent years, grievously wounding the goose formerly known for laying golden eggs...
Uppity
Posted on July 09, 2009Capitalism is premised upon exploitation. Without that, no profit, and shareholders would be shit holders. In that spirit, slavery has been the law of the land for centuries. Not to mention the tax code. Even today, thanks to a little coercion called an employment contract, the inventions of workers belong to their paymasters...
Cool It
Posted on July 09, 2009In an echo of denouncing "irrational exuberance," the organization best known for harboring practicing pederasts has denounced vigorous patent protection. The dope with the hanging rope is none other than the Pope, who put out the hard word...
Unappealing
Posted on July 08, 2009The USPTO is doing its bit to boost patent prosecutor income while dashing applicant hopes. Thanks to unprecedented rejection rates, appeal filings have spiked 70% this year: 10,870 appeals this fiscal year to 6,385 last year. The PTO cites "controlling case law" as the reason...
Fishy
Posted on July 08, 2009The single claim of 4,781,930 is a method of immersing fresh fish filet in vegetable oil, draining the oil off, sprinkling crumbs on it, then freezing it. If that sounds nasty, the patent case behind it is even nastier. Alfred and Paul Fraser, acting pro se, sued 11 companies over the expired patent...
Not Called Out
Posted on July 07, 20094,924,496 claims caller ID, using means-plus-function claims: look up a name for a number while the phone is ringing. There's a claimed "means for comparing the detected incoming telephone number with said directory of telephone numbers to identify the party associated with the incoming call number...
Another Round
Posted on July 07, 2009The CAFC has granted en banc rehearing of Tafas & GSK v. Doll, over the PTO proposed continuation and claims limitations. The order did not state why it had decided to take another gander. In the first round, to general dismay, the CAFC panel ruled 2-1 that the rules were merely procedural, not substantive, overturning the reality-based verdict of the district court...
Exceptional?
Posted on July 06, 2009Microsoft licensed encryption patents from TecSec. The negotiated license included a proviso, initiated by Microsoft, called the "Reserved Scenario," that would let it pay a lower royalty for not using a particular technology: encryption of less than an entire file (sub-file encryption)...
Patent Americana
Posted on July 05, 2009England's Statute of Monopolies, passed by Parliament in 1624, curtailed the crown's abuse in handing out monopolies, while codifying handing out monopolies, being only tangential to patents as we understand them. English letters of patent were monopolistic grants for inventing or importing new things, but also licensing business, as a means for restricting competition generally...
Gift from the Dead
Posted on July 04, 20095,761,645 claims a "system for enabling delivery of insurance gift payments" to beneficiaries. Owner Equitable Life & Casualty Insurance has sued rival American National Insurance over it, as part of an ongoing enforcement campaign. Other insurance companies have been taken to task over '645, and settled...
Cut to Commercial
Posted on July 02, 2009In years past, big-screen TV buyers gravitated to plasma displays, as LCDs were prohibitively expense for 50+ inch screens. But as LCD screen technology has advanced, plasma sales have receded. In 2008, four million plasma screens were sold in North America, while 30 million LCD TVs found homes...
Researching
Posted on July 02, 2009On patent reform, the Senate shoots first and ask questions later. Judiciary Chairman Patrick Leahy hustled his cockamamie patent bill out of committee in April on a 15-4 vote. Now judiciary committee member Jeff Sessions is wondering what impact the proposed post-grant challenge process might have...
Fully Fueled
Posted on July 02, 2009The hyperactive Obama administration wants efficient cars, hoping to implement fleet fuel economy imperatives that politically ran out of gas forty years ago. The hope for fuel-efficiency lies with hybrids, which cruise on electric power and hit the gas when a driver hits the accelerator...
B+
Posted on July 01, 2009Monday, an East Texas jury awarded $1.67 billion for infringing a single patent: 7,070,775, which Centocor and New York University jointly own. '775 claims an "antibody or antigen-binding fragment." The patent applies to an arthritis drug. Abbott was the infringing party...
Requisite Clarity
Posted on June 29, 2009In Bilski, the rogue CAFC ruled on the wrong grounds, and in the process warped the law, by setting in stone what were intended as guidelines. To afford case-by-case consideration, a court writes itself wiggle room. Instead, the CAFC tends to sew itself straight-jackets...
Rich-Media Invalidity
Posted on June 27, 2009Another PTO junk patent is on the prowl. How Neil Balthaser was allowed 7,000,180, claiming methods for creating and editing rich-media, is beyond rational explanation. There is a ton of prior art invalidating the patent. Balthaser has a four suits in East Texas with a slew of defendants...
Jackson
Posted on June 27, 2009A contribution to the media obsession surrounding the death of the King of Pop: In 1993, Michael Jackson was granted patent 5,255,452 for a "Method and means for creating anti-gravity illusion." Specially designed shoes engaged with hitch members protruding through the stage, allowing the wearer to lean beyond their center of gravity...
Definitely Not
Posted on June 26, 2009Bilski's claims are putrid, being neither useful nor definite, and hence non-patentable under §101 and §112 ¶2. The Supreme Court should rightfully ignore flawed CAFC case law, looking to its own precedents, most notably Diamond v. Diehr (for §101) and Markman v...
Convenience of Coincidence
Posted on June 26, 2009Decisions made at the UPSTO have ironically spawned an anti-patent culture at the very institute created to protect innovation. These decisions have consequences. Conveniently though, the US economy has tanked, providing the PTO with a thick sheet of smoke to help veil countless managerial missteps...
Double Zap
Posted on June 26, 2009Samsung and Sharp have been warring over TV patents at the ITC. Earlier this month, Samsung was found infringing Sharp patents. All the ITC does, or can do, is issue an exclusion order. Now the ITC has determined that Sharp infringes a single Samsung patent...
Mastered
Posted on June 25, 2009Peter Hochstein and Jeffrey Tenenbaum scored one against Microsoft in their Xbox patent match, ongoing since 2004. East Michigan Judge Paul D. Borman has adopted a critical claim construction determined by his special master in the case. Claim 39 of 5,292,125 involves a communication circuit...
Paid As Used
Posted on June 25, 2009Richard P. Mettke got 5,602,905, claiming a "public on-line, pay-as-you-use communications terminal." He wanted his claims directed to the Internet, so he filed for reissue, pursuant to 35 U.S.C. §251, "submitting with his application a declaration stating that he believed the '905 patent to be 'wholly or partly inoperative or invalid by reason of me claiming less than I had the right to claim...
Unappealing
Posted on June 23, 2009More than ever, patent prosecution is a gambler's game. As Admiral Adama in Battlestar Galactica observes: "sometimes you have to roll the hard six." In prosecution, facing an objectionable rejection, appeal. Professor Dennis D. Crouch has taken a cold-eyed look at rejection rates for BPAI appeals...
Shoo-in
Posted on June 22, 2009The fix is in. Movers and shakers in the patent community are falling down squirting over Dave Kappos as USPTO honcho. CongressDaily reports praise from Senate Judiciary Chairman Patrick Leahy and Commerce Secretary Gary Locke (as if a cabinet member is going to toot another horn on his President's pick)...
Innovation Limited
Posted on June 22, 2009In post-war Japan, W. Edwards Deming taught the natives quality control methods, with which the Japanese dazzled the industrialized world. Deming said, "expect what you inspect." That's why companies don't innovate: the same patterns of communication and problem-solving in the same narrow niches leading down the same old roads, seldom blazing new trails...
Compatible
Posted on June 22, 2009"We are revising all the doctrines and laws related to patents, which should be compatible with the international treaties that we have signed and respect and honor. Patents have become a barrier to production, and we cannot allow them to be barriers to medicine, to life, to agriculture...
Ink Spilled
Posted on June 21, 2009Printer makers follow the razor blade business model: the razor is a loss leader to the highly profitable blades. So, with inkjet printers, the lucre accrues from selling the ink. To wit, Seiko Epson has just sued six inking infringers over its ink cartridge patents...
Unspooled
Posted on June 19, 2009Emsat has a patent enforcement campaign against wireless providers such as Sprint Nextel, Verizon, Alltel, AT&T and T-Mobile. The claimed technology is an FCC requirement: determining the location of cell phones, one (the required) use being for emergency response networks...
Combination of the Two
Posted on June 18, 2009A combination of two patent blogs yields a well-worn path to researching patent case law. Michael Giles Sullivan's IP Law Outline & Analysis provides an excellent directory and synopses of precedents. The Patent Prospector provides the most extensive reportage of case law quotes of any blog, covering practically every precedential case from 2005 to date, as well a few historical Supreme Court cases...
Waste Not...
Posted on June 18, 2009President Obama announced today nominees for two related governmental posts: Director, Office of Civilian Radioactive Waste Management, Department of Energy; and Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office...
Off the Block
Posted on June 17, 2009Two-bit patent auctioneer Ocean Tomo has been snapped up by British ICAP, the world's largest interdealer broker, for $5 million cash and a hypothetical $5 million in shares. More precisely: "Application will be made for the listing of 692,226 ordinary shares of 10 pence each which have been conditionally allotted as satisfaction for the stock consideration...
Order of Magnitude
Posted on June 17, 2009Heeling Sports has an enforcement campaign against infringers of its roller skate shoes. It botched the first round requesting damages for default judgment. As a result, Central California District Court Judge Florence-Marie Cooper awarded only $280,000 in damages, without explanation...
Out of the Ditch
Posted on June 17, 2009Cartner Jack got 5,197,284, claiming a deceleration circuit for a hydraulic motor. Cartner sued Alamo for infringement. Claim construction went poorly for Cartner. So poorly that Cartner stipulated, under the district court's construction, that the patent was "invalid for failure to meet the written description requirement of 35 U...
Cull
Posted on June 16, 2009"It is in the sterilisation of failure, and not in the selection of successes for breeding, that the possibility of an improvement of the human stock lies." - H.G. Wells. Antithetical to rampant free-to-breed populist sentiment, government support for eugenics has no prospect...
Snuffing Candles
Posted on June 15, 2009Tackling Bilski and patents in general, the Wall Street Journal presents one of the more subtle propaganda pieces seen: "The greatest innovations today are better methods rather than new machines. We shouldn't grant monopolies on concepts." Quoting IBM's David Kappos: "As things now stand, the vagueness of patent law means the 'precious time of skilled scientists and engineers is too often spent defending against costly and time-consuming litigation, instead of creating innovations that drive economic growth...
USPTO Beta Site
Posted on June 15, 2009The USPTO has released a new beta version of its website, "redesigned to improve the look and feel, as well as to enhance the user experience with improved navigation." While the new site is not yet entirely up to date, the layout appears much improved over the current dreadful design...
Pompous Pirate
Posted on June 14, 2009Rambus has been bullied by the European Union to license its patents on the cheap. Europe constantly seeks to denigrate patent protection because they are lagging behind in technological prowess and world commercial competitiveness, and have scant chance of catching up...
Twang
Posted on June 13, 2009William Guess and George Morgan filed a patent application for "a musical instrument that includes a keyboard attached to a guitar body." Claim 1, the only independent, was a Jepson claim: a product claim listing a preamble that is typically in the prior art, followed by a listing of novel improvements...
Appeal of Appeal
Posted on June 12, 2009Patent allowances are way down, hence appeals are way up. Since January, the BPAI backlog has nearly doubled to over 10,000 pending appeals. At the current rate of 500 disposals per month, the backlog would take over 20 months to eliminate, not accounting for new appeals that are being filed at a rate 2 1/2 times faster than the Board's disposal rate...
Top Dogs
Posted on June 11, 2009The most valuable patents are naturally the ones covering the most profitable technologies. It would be a facile conclusion that the most valuable patents might also be the most litigated. Take patented drugs as an example. Because only drug companies provoke litigation over drug patents, the number of litigations for such are low...
Biocide
Posted on June 10, 2009To sanitize meat, processors directly apply biocides. To that end, Ecolab got 6,010,729, 6,103,286, and 6,113,963, which it asserted against competitor FMC. FMC counterclaimed 5,632,676. A jury found some of Ecolab's asserted claims invalid, while FMC's '676 withstood validity challenge...
Woe
Posted on June 09, 2009"During the past decade, innovation has stumbled. And that may help explain America's economic woes." So opines faux economist at Business Weak, Michael Mandel. Lacking a "government-constructed "innovation index" that would allow us to conclude unambiguously that we've been experiencing an innovation shortfall," Mandel points to the epitome of irrational exuberance, the stock market...
No Bubbles
Posted on June 08, 2009The American anachronism of patent interferences to determine priority often creates a mess when invoked. And so it was when Affymetrix concocted an interference against Agilent for a genetic analysis technique involving mixing fluids. The BPAI gave the prize to Affymetrix, after Agilent couldn't convince the Board that Affymatrix was playing fast and loose meeting the written description requirement...
Litigation Bible
Posted on June 08, 2009The "Patent Case Management Judicial Guide" is a stellar compendium covering all aspects of patent litigation, not just judicial case management. Professor Peter S. Menell at U.C. Berkeley School of Law headed this collaborative effort. Highly recommended...
False Marking
Posted on June 08, 2009Coffee drinker Matthew Pequignot sued Solo Cup for false marking, after noticing on coffee cup lids patent marks for long-expired patents. He then went after Gillette and Proctor & Gamble. Pequignot sued qui tam, on behalf of the government. In March, D...
The Diamond
Posted on June 07, 2009Bilski's and Warsaw's "managing... consumption risk costs," are miserable claims to be scuttling to the Supreme Court on the topic of patentable subject matter, because they clearly are not patentable under §112 ¶2, not to mention §101. At issue is whether the CAFC misconstrued §101, in limiting processes to: 1) machine dependence or 2) transformation...
Double Coverage
Posted on June 05, 2009Heather Knox has a 36C breast size, and isn't shy about sharing that fact with the world. "I'm 40. Gravity has taken its toll on me. Even at 30, gravity had taken its toll on me." Ms. Knox wanted anti-gravity support, so she combined a push-up bra with a full coverage bra, and burst a seam with 7,074,108...
Uppity
Posted on June 05, 2009Wage slaves typically assign their inventions to their employer. Boat designer Borden Larson got uppity about it and sued his former employer Correct Craft, trying to get back a right he had signed away. Larson lashed out in state court. Correct Craft dragged it into federal court...
The Rubber Meets The Road
Posted on June 03, 2009Titan Tire sued Case for infringing D360,862, claiming a tractor tire. "In May 2007, Titan filed a motion for a preliminary injunction to prohibit Case from selling backhoes with infringing tires." The motion was denied, because Titan "was not likely to withstand" an obviousness challenge...
Outside the Membrane
Posted on June 03, 2009Amgen and Ariad got into a tussle over 6,410,516. Ariad started with a DJ action, asserting invalidity and noninfringement. Amgen counterclaimed infringement. '516 claims reducing a specific protein's activity (NF-kB). The claim construction crux was whether the claimed activity occurred outside a cell, inside, or it didn't matter...
Replay
Posted on June 03, 2009TiVo bludgeoned EchoStar with its patents, winning at trial in 2006 and on appeal in 2008. EchoStar wouldn't settle, and TiVo got a temporary injunction. EchoStar supposedly developed a workaround. But TiVo alleged it was a faux workaround. A bench trial in February has resulted in a ruling today from East Texas Judge Folsom that EchoStar is in contempt of court, with an order that the company stop using TiVo technology (aka permanent injunction)...
Air Quality
Posted on June 02, 2009PureChoice asserted RE38,985 against Honeywell. '985 claims an air quality monitoring system. What exactly is air quality? That was one problem leading to indefiniteness. The other problem was claiming two different sensors that couldn't be differentiated...
Ensnarement
Posted on June 01, 2009Depuy Spine has been trying to screw Medtronic with 5,207,678, claiming a pedicle screw, used in spinal surgeries. Medtronic skirted literal infringement. On remand from the CAFC, the issue then became doctrine of equivalents, whereupon Medtronic reared an ensnarement defense...
Byoki
Posted on June 01, 2009Byoki is the Japanese word for sick. Bilski is the American word for sick patent method case law. At the time of handing down the CAFC decision, Chief Judge Michel didn't consider Bilski much of a change, even as it immediately roiled understanding of patentability for processes, especially software...
Scam Artists
Posted on May 30, 2009Class act Alysha Schertz (pictured) at the BizTimes Milwaukee brings the locals up to snuff on the patented skanky in "Patent trolls try to rip off high tech firms." "Scam artist patent trolls can create major headaches for some companies...
Still in Diapers
Posted on May 30, 2009The impulse to see what you can get away with strikes infants of all ages. In Boss Industries v. Yamaha Motor, both sides displayed a touch of the syndrome. Boss sued Yamaha for infringing three snowmobile seat patents. Boss lost on claim construction; easily affirmed on appeal...
Breaking
Posted on May 29, 2009Every Penny Counts is running a problematic enforcement campaign with a bankrupt patent family. Florida district court Judge Paul A. Magnuson saw through claim 15 of 6,112,191, which ostensibly claims an apparatus, but really claims a method, as not being patentable subject matter...
Projection
Posted on May 28, 2009The hit-or-miss ITC scores another miss in its handling of Norgren's patent assertion against SMC. An administrative law judge (ALJ) found non-infringement on a faulty claim construction, and the Commission let the matter drop. The CAFC had to get the flow going again for Norgren...
Typo
Posted on May 27, 2009In 1991, Peter Hochstein and Jeffrey Tenenbaum came up with the idea of playing networked video games and chatting simultaneously. 5,292,125 resulted. In 2002, Microsoft launched an online Xbox gaming service that did just that. Litigation ensued in 2004...
Friends Again
Posted on May 27, 2009SanDisk and Samsung have renewed their patent cross license for another seven years. Plus, Samsung will provide SanDisk with a guaranteed slice of its flash memory output. Punters applauded SanDisk in particular, with shares flashing 15%....
Extraordinary No More
Posted on May 25, 2009"The writ of mandamus is available in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed. Cir. 1998)." Not any more. The high courts are regularly disingenuous in attempting to maintain a myth of continuity...
Exercise
Posted on May 25, 2009In the American regime, claim construction is an intricate art form. At times, a claim construer must ponder context in view of other claims, and read the entrails of prosecution history to divine meaning. Herein, real-time isn't instantaneous, it has realistic slack...
Bracing
Posted on May 24, 2009A patent license agreement is only as tight as its drafting. CoreBrace owns 7,188,452, claiming a brace used in making earthquake-resistant steel-framed buildings. Star Seismic took a non-exclusive license to '452 from the inventor, granting Star the right to "make, use, and sell" licensed products...
Change A'Coming?
Posted on May 24, 2009Gene Quinn relates insight from Mark Malek, fellow attorney at Zies Widerman & Malek, who spoke recently with an anonymous examiner who "told Mark that about 2 weeks ago management told the examining corps that they need to start issuing patents." Possibly a bit of sunshine in an otherwise dreary era at the PTO...
Chipper
Posted on May 22, 2009Overturning an administrative law judge's mistake, the ITC found Tessera patents infringed by six rivals: ATI Technologies, Freescale Semiconductor, Motorola, Qualcomm and Spansion (STMicroelectronics NV). Tessera prompted the action in 2007. The ITC issued a limited exclusion order, prohibiting the importation of semiconductor chips that infringe several Tessera patents, and further issued cease-and-desist orders to Motorola, Qualcomm, Freescale and Spansion...
Overreaching Thoughtlessness
Posted on May 22, 2009Philips Lumileds went after Epistar at the ITC over 5,008,718 and succeeded. Because the ITC didn't even let Epistar argue prior art invalidity. And the ITC went so far as to block importation of "products by entities not named as respondents before the ITC...
Linear
Posted on May 21, 2009Linear Technology "filed a complaint with the United States International Trade Commission ("the Commission") under section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337(a)(1)(B), alleging that Advanced Analogic Technologies, Inc. ("AATI") imported and/or sold for importation certain electronic voltage regulators that infringe U...
Product by Process
Posted on May 20, 2009Abbott Labs got into two patent spats with generic drug makers, in different districts, over 4,935,507, which claims a chemical composition by process, the result being an antibacterial drug. In one, where Abbott sued, Abbott lost on noninfringement in summary judgment...
Wow Bow
Posted on May 20, 2009Leon Russell once wrote: "Stray dogs that live on the highway walk on three legs. They learn too slow to get the message." Today, a jury awarded Toronto-based i4i $200 million for Microsoft's infringing 5,787,449. Last month, Singapore-based Uniloc scored a $388 million verdict from Microsoft infringing 5,490,216...
Rumble Strip
Posted on May 20, 20094,701,069 claims a road shoulder rumble strip, to alert errant drivers. Dickson Industries filed a declaratory judgment action against '069's owner, the Patent Enforcement Team (PET), after PET approached one of Dickson's customers, Midstate Traffic Controls, for a license...
Projecting Junk
Posted on May 19, 2009The lament by so-called patent reformers is that pissant patent holders assert junk patents. Well, so do supposedly respectable companies. Seiko Epson sued Coretronic for patents related to display projectors for DVD players and computers. Coretronic counter-claimed with its own patents...
AE = Accelerated Excuses
Posted on May 19, 2009Start with a well-designed, seemingly effective program; add bureaucratic tanglese; top it off with the ubiquitous "we are always right, as we are the government" mentality, and, what do you get? The USPTO Accelerated Examination (AE) program in actuality...
Lacking
Posted on May 18, 2009Young CAFC Judge Moore sadly suffered a strange lack of rationality by affirming Central California's dismissal of a DJ action brought by Autogenomics against Oxford Gene. As Judge Newman, the CAFC's font of wisdom, put it: "The Federal Circuit again restricts United States parties from access to our courts when a United States patent is owned by a foreign entity...
Tune Hunter
Posted on May 18, 2009Tune Hunter has set its sights on Shazam for infringing 6,941,275. Shazam, for many portable devices such as the iPhone, lets a user record a short snippet of a song, identifies the song by comparing the snippet with a database, and gives song information, including title, artist, and album...
Method High
Posted on May 18, 2009In re Bilski, the bad brew for method claims, is scheduled to be discussed by the Supreme Court May 28th. A decision to grant or deny certiorari could be included in the Court's Orders List as early as June 1st....
First to Flunk
Posted on May 18, 2009A first-to-file patent priority regime is rationally done using absolute novelty, that is, no grace period. That is not what Sen. Leahy has for Senate Bill 515, the currently proposed abomination posing as patent reform. Hal Wegner reports on the convolutions involved in Leahy's fantasy version of first-to-file...
Outlier
Posted on May 17, 2009The cabal misnamed as the Coalition for Patent Fairness advocates making patent enforcement more tortuous and expensive than it already is, as well as circumscribing patent holders' basic rights, such as transfer of ownership. IT shakers Microsoft, Intel, Hewlett-Packard, Micron and Cisco belong, and all share the distinction of being top ten patent gatherers in 2008...
View from the Bench
Posted on May 16, 2009CAFC Chief Judge Michel spoke at an FTC venue last December, pouring cold water on those hot and heavy for patent "reform." Junk patents are nothing more than a gnat in the ointment. There is no litigation explosion. Hope for improvement from further post-grant review process is fantasy given turnover at the PTO...
Dubious
Posted on May 15, 2009Altana Pharma sued competitor Teva over 4,758,579, going to an antiulcer drug. Altana asked for a preliminary injunction. Teva shot back with a decent obviousness argument, so the judge denied the motion, because it was dubious that the patent would withstand the enforcement attempt given the "substantial question" of validity raised...
The Problem
Posted on May 15, 2009The backlog in the USPTO is one enormous statement of managerial incompetence. Nothing more. Singularly, what the Office has sorely lacked, and still lacks, is competent leadership. Jon Dudas was the Dubya of patents. For both, this nation is paying an incredible price, and will for years to come...
Spinach
Posted on May 15, 2009It was getting downright creepy. Claim construction in the can: simple, straightforward, invincible. After exhaustive search and defendant's invalidity contentions, no prior art worth spitting on. In the sun on 101. Still, the chill. It was too easy. Today, thank goodness, divine intervention...
Unexpected
Posted on May 14, 2009Procter & Gamble sued Teva for infringing 5,583,122 after Teva let P&G know it was planning on marketing a generic version of P&G's osteoporosis drug Actonel®. Teva had honed its bone of contention that '122 "was invalid as obvious in light of P&G's expired U...
Witless Fitness
Posted on May 13, 2009Jonathan Monti co-invented exercise equipment which he pumped up to 6,932,749 and other patents. Suffering hasty-inventor syndrome, he tried to interest Fitness Quest (FQ) in his equipment before getting his patent. After getting the patent, he induced FQ into a declaratory judgment motion with an accusing letter...
Entitled?
Posted on May 13, 2009Genetic manipulation is an expensive research endeavor because it is fraught with unpredictability. That makes it patentable. One ultimate goal of genetic research is treating diseases. Especially when an invention offers the prospect of a cure, the affected diseased, most desirous of the fruits, want the benefits without paying for the toils of the innovation behind it...
Quality
Posted on May 12, 2009IBM's David Kappos, touted as a possible USPTO Director, testified in March before the Senate Judiciary Committee: "We believe the quality of patents issued in the U.S. has diminished, and that the substantial improvements needed to address this quality crisis are not possible without Congressional action...
Back into the Pool
Posted on May 12, 2009Sofpool sued Intex Recreation over two above-ground swimming pool design patents (D408,546; D480,817). The jury found them noninfringed. The serpentine Egyptian Goddess CAFC ruling, a temporal reel in viewing design patents, intervened between trial and appeal...
Bully
Posted on May 11, 2009The rabid FTC aside and amok, the U.S. Justice Department has had little stomach to enforce antitrust violations. The Americans let Microsoft off the antitrust hook with a smirk, while the Europeans fined them $1.16 billion. Now Intel, its corporate culture an apparent breeding ground for bully bullshitters, as evidenced by recent top brass opinions regarding "patent fairness," face their own European antitrust swat...
Stayed
Posted on May 10, 2009SP Technologies started an enforcement campaign for 6,784,873, claiming a graphical touch screen keyboard that automatically disappears "after the desired input is received." SP sued Samsung and HTC. Samsung settled. HTC got up on its hind legs, filed an inter partes reexamination, and motioned to stay litigation, which East Illinois district court Judge Samuel Der-Yeghiayan granted...
Confined
Posted on May 10, 2009Ron Wilson at EDN, with no patents to his name, has what he terms "a modest proposal": "prohibit assignment, sale, or any other transfer of patent ownership," except inheritance....
Gumped
Posted on May 09, 2009Louis Stumberg and James Fulton invented a safety device for firefighters: automatically sounding an alarm if a firefighter didn't move for some time (presumably incapacitated). In 1989, the inventors hired Akin Gump to file a series of patents. Upon later enforcing the patents, they wound up getting settlements totaling $9 million...
Monster
Posted on May 08, 2009In a debate on patent reform at the Commonwealth Club of California yesterday, Intel's Chief Patent Counsel David Simon told the audience that jury verdicts can't be overturned unless the decision was "monstrous." It takes one to know one.....
Kindled
Posted on May 08, 2009Amazon's new Kindle DX, with bigger screen, comes patented: D591,741. With exceptions, design patents for electronic devices are relatively weak tea compared to the utility variety, and the Kindle is notably stodgy, so it's mostly a vanity patent. Amazon appears not to have any ebook utility patents...
Doubled Over
Posted on May 07, 2009Dr. Frits Jacobus Fallaux got stubborn and stayed that way. The fifth in a family series ran into a double patenting rejection. The examiner applied the normal one-way test for obviousness-type, i.e., non-statutory double patenting on some claims. Rather than file a terminal disclaimer to overcome, which would have limited patent term, Fallaux countered that the more rarely applied two-way test was appropriate...
This Round
Posted on May 06, 2009Rivals Monsanto and DuPont have battled over patents through the years. In the late 1990s, Monsanto went after DuPont for breaching a licensing agreement on pest-resistant corn, resulting in a revised licensing agreement. In 2002, DuPont licensed Monsanto's Roundup Ready seed technology, which allows crops to be sprayed with herbicide Roundup and survive...
Feeling Taxed
Posted on May 05, 2009The same companies that crusade to evade paying any "patent tax" to inventors are now crusading to evade corporate income tax. On Monday, President Obama outlined proposals for cracking down on overseas tax havens, and eliminating tax breaks for U...
All Hat, No Cattle
Posted on May 04, 2009200 years ago this week, Ms. Mary Dixon Kies became the first American woman granted a patent. Ms. Kies invented a way to weave silk with straw. She aspired to apply her invention in the booming hat industry. But her patent never made her any money.....
Shameless
Posted on May 04, 2009Former Intel honcho Andy Grove, now 72, but still sucking corporate teat, had a very public senior moment over patents: "Patents themselves have become products. They're instruments of investment traded on a separate market, often by speculators motivated by the highest financial return on their investment...
Practicing
Posted on May 04, 2009The objection absurd, but patents as tradable commodities has raised some ruckus, even as the loudest howler monkeys are disingenuously self-serving. The flip side of that same fake coin is that patent holders, including inventors, should be required to commercialize their invention...
Reasonable Royalty
Posted on May 02, 200935 U.S.C. §284 awards damages "in no event less than a reasonable royalty for the use made of the invention by the infringer." Reasonable royalty is thus the lowest award possible for patent infringement, and in no way bounds what infringement should cost...
Lunatic
Posted on May 01, 2009David Simon, Chief Patent Counsel at Intel, in testimony today before the House about pending patent legislation, comes off as a raving sociopath. Let's begin with his corporate arrogance, a pandemic disease among his Coalition brethren. "As one of America's leading innovators, Intel recognizes the critical importance of a strong and effective patent system that protects actual inventions and thereby provides an essential incentive for inventors...
Cents-less
Posted on May 01, 2009Every Penny Counts, founded by spare change king Dr. Bertam Burke, sued debit/credit card vendors for its patented "method for donating 'excess cash' to charities and savings accounts." "He describes his invention as a way of solving this 'problem of loose change...
Corrected Vision
Posted on April 30, 2009Revolution Eyewear myopically started a patent fight with competitors, including Contour Optik. Revolution's assertion went blind, but Contour saw 20/20 money with RE37,545. On appeal, "the only matter left in this lawsuit is Contour's '545 patent infringement action...
Con Man
Posted on April 30, 2009Sen. Patrick Leahy (D-Vt), Senate Judiciary Chairman, attempts to sew a silk purse from a sow's ear with proposed patent legislation, disingenuously spinning in Business Week that it gives "ingenuity freer rein." "It has been more than 50 years since Congress significantly updated the patent system...
Troubling
Posted on April 30, 2009"A strong and predictable patent system fosters the collaborative development and funding required to transform basic research into commercially viable technologies and stable, high-paying jobs. It is troubling to many small technology companies that, at a time of such grave economic uncertainty, Congress would seek to fundamentally alter the economic structure of our nation's patent system...
On the Make
Posted on April 30, 2009Apple is trend setting again: following the model of Qualcomm, and more recently, AMD, into design house and patent provocateur, leaving the nasty risk of manufacturing to cost-conscious Asians. Apple has been hiring semiconductor engineers for many moons, building a cadre for designing next-generation chips...
In the Wind
Posted on April 29, 2009The Open Invention Network, Linux advocacy group, is publicly tilting at the big windmill: looking for prior art to invalidate the three file management patents that Microsoft asserted against TomTom. Keith Bergelt, CEO: "The patent vetting activity offered by the Linux Defenders portal offers a unique opportunity to bring to bear the collective knowledge, passion and ingenuity of the Linux community to better explore the validity of the patents...
Seeking Reversal
Posted on April 28, 2009"A patent by its very nature is anticompetitive." So the CAFC remarked last October in allowing reverse payment by Bayer to generic drug makers, so that Bayer could keep its patented monopoly over antibacterial Cipro® for a bit longer. Stanford law professor Mark Lemley has penned a petition to the Supreme Court, to lay the burden of overturning reverse payments before the august body, this nation's numero uno woolly bully...
Squall Calmed
Posted on April 27, 2009Skipping church to tithe in another way, on Sunday, Qualcomm agreed to pay Broadcom $891 million to settle their patent dispute. $200 million passes hands next quarter. Its kitty bulging, the Wall Street Journal thinks Broadcom "primed to start executing on its wireless strategy...
Smoked
Posted on April 27, 2009Humans have grossly overfished the oceans, all the while treating the seas as one huge toilet. Tuna, for example, is so polluted with mercury that even the U.S. government warns against its frequent consumption. But let that not affect claim construction in a patent case...
China Ascendant
Posted on April 26, 2009In the 18th century, America was the world's leading intellectual property thief: appropriating copyrighted works and infringing patents as part of its economic development. That same disapprobation has been applied to China in the past decade, as it was to Japan in the 1950s...
Toyed
Posted on April 24, 2009Mind Enterprises successfully sued Vast Resources for its patent claiming a lubricious glass rod with a bulbous tip, the patent titled "Sex aid". On appeal, the defendant was able to convince the CAFC that there was nothing new to getting nude with attitude, even if the gist had a probing assist...
Buy
Posted on April 23, 2009According to a recent poll of small and mid-sized computer technology companies, 64% were interested in buying patents this year, up from a trough of 32% last year. Of those responding with interest in acquisition, 39% reported as planning to buy, with 25% considering the possibility...
Sagging
Posted on April 23, 2009For the first time, the USPTO "issued more patents to foreigners than to Americans," reports Business Week. "[T]he slippage comes amid recent reports that show the U.S. losing its edge when it comes to innovation." South Korea, China, and Japan are becoming more productive inventors...
Peeing on the Pool
Posted on April 22, 2009Four companies pooled patents covering the industry standard for music and data CDs. The standard, set in the early 1990s, was codified in the "Orange Book." The Orange Book standard created compatibility for CD readers and writers, thus creating a single market...
Advanced
Posted on April 22, 2009Qualcomm announced that it is in "advanced" talks to settle its long-running patent war with Broadcom. Both sides have taken hits and scored wins, but Broadcom has chalked up a better score to date. Qualcomm postponed it Q2 earnings announcement until next Monday...
WaMu
Posted on April 17, 2009Washington Mutual (WaMu) is a poster child of the mortgage lending irrational exuberance that led to the current economic depression. A run on the bank last September led to its wrenching government-mandated rescue by JP Morgan Chase. WaMu was the biggest bank failure in U...
History Lesson
Posted on April 17, 2009"Five years ago, a group of 15 corporate giants, which ironically had built their success on patents but now rely primarily on their market power and acquisitions for growth, wanted to weaken the U.S. Patent System and the protection it offered the new generation of innovators...
27
Posted on April 17, 2009Gary Odom was a software developer for 20 years, and had some patentable ideas beginning in the late 1980s, but lacked the resources to patent them. When he got a chance to work in the patent field, he jumped on it. Months after going to work for a patent boutique in Portland Oregon, he started filing, pro se, patents of his own inventions, starting with modular software construction, then web personalization...
Potato Row to be Hoed in Seattle
Posted on April 16, 2009In the case of Pace International LLC v. Industrial Ventilation, Inc., currently planted in Washington State, Judge Lasnik recently denied Defendants' motion to transfer the case to the Idaho, despite all the spuds being based there....
Star Crossed
Posted on April 15, 2009In 2001, smokeless tobacco maker Star Scientific sued R.J. Reynolds over patents for lower carcinogens while curing tobacco. Maryland district court Judge Marvin Garbis found Star guilty of inequitable conduct. In a landmark ruling, the CAFC overturned...
Low Blow to MoFo
Posted on April 14, 2009Last Wednesday, former Morrison & Foerster client Ecast sued MoFo for no mojo in Ecast's to-and-fro with Arachnid and Rowe, who had sued Ecast for jukebox patent infringement. Ecast, claiming legal malpractice, wants its money back: a "staggering" $4...
Hunkering Down
Posted on April 13, 2009The USPTO is battening the hatches for the turbulent waves of the current economic storm. Herein, today's "USPTO Weekly Extra - Budget Update: Supplemental on Training and Other Issues."...
The Garden of Invention
Posted on April 12, 2009The Garden of Invention by Jane S. Smith is a captivating biography of Luther Burbank, esteemed botanist. But more than a biography, as it chronicles the science and business of plants during Burbank's lifetime. Admittedly, the book's appeal relies upon one's interest in the topic...
Double Patenting Dilemma
Posted on April 12, 2009Takeda Pharmaceutical filed a patent application for cephem antibiotic compounds, and the process for making those compounds, in Japan, in December 1974. Takeda in 1975 filed corresponding applications in the UK and US. The US family started with 4,098,888 & 4,298,606...
Burning the Ships
Posted on April 11, 2009Marshall Phelps, Microsoft VP for IP policy and strategy, writes a first-person account of Microsoft coming to Jesus about patents in the self-serving book Burning the Ships. It's a corporate mea culpa sleight of hand, a pseudo-folksy self-absorbed Business Week as People magazine for business people book...
Trunked
Posted on April 11, 2009Mark Felix sued car maker Honda for infringing 6,155,625, claiming a pickup truck with a storage compartment, like a car trunk. Felix had no horsepower for broad claim construction, and so died on the road: the district court granted summary judgment of noninfringement...
Tagged
Posted on April 10, 2009Singapore-based Uniloc sued Microsoft in 2003 over 5,490,216, which claims a system for software product activation, which Microsoft uses in its Windows operating systems (XP, Windows Server 2003) and Office (XP version). '216 has a 1992 priority date...
Gimped
Posted on April 10, 2009Acting Director John Doll sent this memo around the shop: "As you know, the USPTO has made a number of difficult budgetary decisions this fiscal year. Among these challenging decisions is that to limit - as detailed in the attached memorandum - even revenue-generating overtime...
International Feel
Posted on April 09, 2009Taking a wide-angle lens to patent enforcement, International Patent Litigation is a knowing compendium of litigation practices around the world, including numerous European countries, Japan, and the United States. Alas, China is not covered. Editor David Wilson opens the book on "developing a strategy and managing international patent litigation...
From R&D to Patentee
Posted on April 08, 2009While big IT whines to Congress about patents being unfair to them, in the teeth of a deep recession they are not remiss to keep fueling the fire of genius. From the Wall Street Journal: Wary of emerging from the recession with obsolete products, big U...
Toll Taken
Posted on April 08, 2009"In 2000, TransCore sued a competitor, Mark IV Industries, for infringement of several TransCore patents. That action was resolved by a settlement agreement, in which Mark IV agreed to pay $4.5M in exchange for an unconditional covenant not to sue and a release of all existing claims...
Fair
Posted on April 07, 2009"Patent laws shouldn't pick winners and losers. Current law is not fair to IT, so something has to change... The current law is too easily abused to the detriment of high-tech. That has to change." - Silicon Valley MercuryNews. The patent laws must be slanted to favor corporations over inventors, just as financial shenanigans are socialized for the citizenry to pay, while banks too big to fail are subsidized, with the resulting profits privatized...
Foto Finish
Posted on April 07, 2009FotoMedia is on a tear over web-based photo sharing. Four suits have been filed, two in mid-2007and two the middle of last year, totaling 66 defendants. 6,018,774; 6,542,936; and 6,871,231 asserted. Defendants are settling like flies on stink. Well over a dirty dozen have settled, the latest being Kaboose, Bubbleshare, and BabyZone...
Skating
Posted on April 06, 2009Figuring infringement damages can be tricky. But, as with everything else, one can also be stupid about it. Heeling Sports successfully, by default judgment, sued footwear importers and distributors for infringing patents for roller skate shoes. When it came to damages, the skating terrain turned problematic...
Mapping the Territory
Posted on April 05, 2009A patent is supposed to be an instruction manual. 35 U.S.C. §112 ¶1 requires an inventor to describe her invention "in such full, clear, concise, and exact terms" that it would "enable any person skilled in the art to which it pertains...
Pointer
Posted on April 04, 2009Marek Kubin and Raymond Goodwin sought "a claim to a classic biotechnology invention - the isolation and sequencing of a human gene that encodes a particular domain of a protein." The BPAI found it obvious. On appeal, the CAFC wound back the clock to an earlier precedent of "obvious to try" that will march through time...
Junk Fax
Posted on April 02, 2009A decent patent turns junky when its holder sues without due diligence. Joseph Kirsch had sent letters to Canon and Xerox about his computer fax patent, 4,816,911, in 1995. Canon didn't bother to respond, but Xerox told Kirsch no license was needed. In 2000, Kirsch sued Xerox, Canon, Ricoh and Toshiba...
Hatched
Posted on April 02, 2009Sen. Orin Hatch (R-UT), co-sponsor of the proposed Senate Patent Act, before walking out on the Executive Meeting of the Judiciary Committee meeting in a hissy fit: "My primary purpose for doing this bill was to improve patent quality and limit unnecessary and unproductive litigation costs...
Smokin'
Posted on April 01, 2009In its long-running patent battle with Star Scientific, R.J. Reynolds got its butt snuffed trying to put a jury trial on hold pending reexam of Star's patents. Maryland Judge Marvin J. Garbis denied RJR's motion. Trial is set for May 18. The district court had found Star's asserted patents unenforceable for inequitable conduct, a ruling overturned on appeal...
Gamed
Posted on April 01, 2009Paul J. Bryan filed a "patent application [which] describes a 'game board and game having a touring band theme.'" He claimed "a game board and game." The examiner found an obvious combination of "a musical band-themed board game with nearly the exact structure that Mr...
Assigned?
Posted on April 01, 2009Jack Bennett sold some patents and continuations to Vector Corrosion Technologies for $25,000. He listed them. He left a CIP out, 6,217,742. A competitor, Euclid Chemical, sought declaratory judgment that Vector didn't own '742. Slapdash Ohio district court Judge Boyko ruled that the contract assigned the whole family to Vector...
Hammered
Posted on March 31, 2009Ocean Tomo patent auctioneer Charlie Ross on its recent event in San Francisco, where only six patent lots sold of 80 offered, with just eight others getting any bids: "I haven't talked to myself so much in years."...
Quickly Drummed
Posted on March 31, 2009A month ago, Microsoft sued TomTom over GPS navigation patents, and file management, eight patents in all. Linux-based TomTom countersued with four of its own. Already they've settled, with TomTom paying an undisclosed sum to Microsoft for a five-year cross-license...
Stifling
Posted on March 31, 2009Start-up Platform Solutions "developed software that turned standard servers into systems that mimicked I.B.M.'s expensive mainframes." Feeling its profits threatened, IBM sued Platform for patent infringement. Squeezed, and investors spooked, Platform was so weakened that IBM snapped up Platform for $150 million, and then killed its product...
Shadows
Posted on March 31, 2009Cordis and Boston Scientific went after each other over intravascular stent patents, each found infringing. On appeal, not much changed, spotlighting a case where settlement was precluded only by poor judgment. Of most interest is a fine shading of when prior art isn't...
Pigs in a Poke
Posted on March 31, 2009The phrase above refers to the clueless Congress passing patent laws without any sense of ramifications. Gene Quinn reports ringleaders in the Senate Judiciary Committee making progress on major revisions to their proposed patent reform bill. The damages provision now appears headed toward codification of the Georgia-Pacific factors, a big step forward in terms of sensibility...
The Invisible Edge
Posted on March 29, 2009"Innovation without protection is philanthropy." - Mark Blaxill and Ralph Eckardt in The Invisible Edge. What a great book. Calling it "well written" is an understatement. Story after story that make the point, as well as entertaining to boot...
Useless But Enabling
Posted on March 27, 2009Martin Gleave and Maxim Signaevsky tried for a patent on an antisense oligodeoxynucleotide, an organic compound. Examiner prior art rejection was upheld by the patent board. On CAFC appeal, two points were made: 1) a reference is anticipatory if enabling, regardless of utility; and 2) knowing a genus anticipates all its species if the genus is so limited that the species hold no mystery...
No Respect Sausage
Posted on March 27, 2009"To retain respect for sausages and laws, one must not watch them in the making." - credited to Otto von Bismark. Whatever the minutia marinade of the proposed patent sausage, it has little chance of sizzling itself into law. The noise you hear are sausage grinders, Sen...
Leaky
Posted on March 25, 2009Clock Spring sued Wrapmaster for infringing 5,632,307. '307 claims a method of gas pipe repair. Without expert affidavits, the district court found in summary judgment the patent invalid due to obviousness, rejecting a prior-use argument. On appeal, the CAFC bought Wrapmaster's showing of prior use: that Clock Spring publically demonstrated the technology in 1989, more than a year prior to filing the patent (1992)...
Feeling Taken
Posted on March 25, 2009Slapped with millions in fees over failed patent litigation, E-Pass has served a lawsuit on its former lawyers: primary counsel Moses & Singer, along with local counsel Squire Sanders & Dempsey. New counsel James Rosen of Rosen Saba: "In advising E-Pass to file and maintain their patent infringement claim, they spent $10 million in legal fees and costs without a sound basis to make the elemental case of patent infringement...
Wastewater
Posted on March 24, 2009Corruption is human nature, but that doesn't shoo the stink from especial weasels. Herein, another tale of litigant misconduct, omitting crucial discovery material that would have gone a long way in proving noninfringement. And, in an ongoing chronicle of feeble-mindedness at the CAFC, Judge Newman, by far the sharpest tack in the box, points out the fly in the ointment of the majority...
Dissolved
Posted on March 23, 2009Last week's CAFC showdown over inventorship highlights the foolery of first-to-invent, an anachronism indulged in only by the U.S. All other countries in the world use a first-to-invent priority system. The next-to-last to abandon first-to-file was the Philippines, in 1997...
Going Bankrupt?
Posted on March 23, 2009A patent is a piece of intellectual property, a mortgage granted by the patent bank, the USPTO. The patent bank has failed, owing to managerial ineptitude. Will mismanagement hurtle it towards fiscal dilemma and further alienation of its mortgage holders, or will it turn the corner, back to a more historical norm?...
Fitless
Posted on March 23, 2009The antitrust raver FTC has decided not to challenge a reverse-payment agreement between UCB, owner of 4,943,639, and generic drug makers Mylan, Dr. Reddy's Laboratories, and Cobalt Pharmaceuticals. '639 claims an anti-epileptic drug that UCB markets as Keppra...
Frivolous
Posted on March 22, 2009E-Pass sued 3Com/Palm for infringing 5,276,311, claiming a multi-function card. E-Pass then went after Visa and PalmSource. The district court consolidated the cases, then granted summary judgment of non-infringement because E-Pass couldn't show all the claimed steps being practiced...
Procedural Kowtow
Posted on March 20, 2009The CAFC considers most everything a matter of law. Substance/facts are a legal inconvenience best boxed so that the entire container can be subject to rule-of-law disposition. With that mindset firmly entrenched, a confusion between substance and procedure is natural...
Screen Door
Posted on March 19, 2009Judge Linn, concurring in Larson v. Aluminart, observed that the CAFC "has significantly diverged from the Supreme Court's treatment of inequitable conduct and perpetuates what was once referred to as a "plague" that our en banc court sought to cure in Kingsdown Medical Consultants, Ltd...
Canned
Posted on March 18, 2009Crown Packaging and Rexam Beverage Can are trying to pop patents on each other. Crown tried to crown Rexam with 6,935,826, while Rexam counterclaimed to cane Crown with 4,774,839. Both came a cropper in summary judgment of non-infringement. From the appeal came a squeal of "no deal," with a toot of there being a dispute in fact...
Kindled
Posted on March 18, 2009Discovery Communications, parent of the Discovery Channel and Animal Planet, has asserted 7,298,851 against Amazon's Kindle electronic reader. '851 was filed in September 1999, a CIP, and issued November 2007. A goodly amount of cited art. The '851 claims are rather well drafted, with many various dependent claims, but are nonetheless open to obviousness attack...
Presumption of Innovation
Posted on March 17, 2009US patent rights have gone the way of "innocent until proven guilty" as our country plunges headfirst into a deep cavern of morally gray, with a permeating attitude of destruction over creation. The founding principal of making every attempt to protect intellectual property has degraded into making every attempt to control and limit that protection, while completely forgetting "to promote the progress of science and useful arts"...
Campaign
Posted on March 16, 2009In case you haven't noticed from the last two entries, patents as a scourge is singing hot across the wires, the mainstream press replete with pleas from well-oiled machines that something must be done. In the months ahead, expect more of a focus on how gutting patents will "save jobs...
Distortion
Posted on March 16, 2009"Patents are not ordinary assets; they are options to litigate. While patent lawyers and other intermediaries benefit directly from the scope and scale of IT patents, that volume represents potential liability for companies that market useful products...
Baby Gorilla
Posted on March 16, 2009Matt Buchanan on Promote the Progress has a tidy analysis of Google's self-interest in patent reform. Matt makes two points: 1) as a youngster (a decade-old company), Google has no patent experience other than being sued. 2) Google already has monopoly power...
Danger!
Posted on March 16, 2009Intel warned AMD today that attempting to transfer their patent cross-licensing agreement to AMD's manufacturing spin-off, GlobalFoundries, was a violation. Intel considers GlobalFoundries a separate company. AMD owns a 34.2% share of GlobalFoundries, with 50% voting rights...
Black Kettle, Says Pot
Posted on March 16, 2009The patent office is barking about its brethren offices worldwide. John Doll, acting alpha dog, announced that "the USPTO has noticed a significant number of international applications filed in the United States Receiving Office (RO/US) under the Patent Cooperation Treaty (PCT) where the applicant has chosen an International Searching Authority (ISA) which is not competent for the subject matter of the claimed invention" ...
Too Far
Posted on March 15, 2009The cheesiest propaganda has a "gee-whiz, this ain't right" flavor. The rubes eat it up. So, whoever bothers to read the oxymoronic Christian Science Monitor is in for a treat. Correspondent James Turner gingerly spews gosh-darn hogwash, aided by an addled Daniel Ravicher, anti-patent kid wonder...
Spiked
Posted on March 13, 2009The best day for ICU Medical in asserting 6,682,509 against Alaris Medical Systems was the day it filed. '509 claims a needless valve, used in medical IVs. Herein, a claim construction saga, with a written description twist, that finds the district court copasetic and ICU spiked with patent loss, shelling out for the other side's attorneys fees, and sanctions...
Remedied
Posted on March 12, 2009Claim 2 of Natures Remedies' herbal weight loss patent 5,945,107 lost terminal weight before the BPAI, based upon a § 102(b) prior art application in Demark for clinical testing of an anticipatory compound. On appeal to the CAFC, the anticipation of the reference was undisputed...
Jaw
Posted on March 11, 2009The usual suspects headed to the Hill today to jaw in the Senate about patent reform, including representatives from corporations, lobbyists, and academic stuntman Mark Lemley. The patter was as expected. California Senator Dianne Feinstein put the writing on the wall about getting to a passable bill, especially over the highly contentious damages issue: "High tech seems to feel that they're going to get whatever they want out of this bill...
Up in Smoke
Posted on March 11, 2009Robert Chapman (11/391,897) followed on the heels of Michael Casner (7,153,966) in his formulation for a synthetic opioid, oxycodone. In a USPTO interference, Casner knocked out the upstart Chapman on obviousness. On a spiteful appeal, Chapman tried comeuppance...
Reexamination
Posted on March 09, 2009The validity of a granted patent may be challenged before the USPTO at any time during a patent's life. There are two types of reexamination: ex parte and inter partes. Both start by petition to the Office, with the petitioner citing "a substantial new question" of patentability in the form of prior art...
Continuing Royalty
Posted on March 09, 2009H. Tomás Gómez-Arostegui, Assistant Professor of Law, Lewis & Clark Law School, Portland, Oregon - In eBay Inc. v. MercExchange, L.L.C. (2006), the Supreme Court held that traditional equitable factors apply to injunctions in patent and copyright cases, and that therefore the mere fact a defendant has infringed a patent or a copyright does not necessarily mean a final injunction must issue...
Non-Contributor
Posted on March 08, 2009A co-inventor is no inventor who adds nothing to a patent but the prior art, so the CAFC ruled last week. Though precedential, the appeal panel ruling is nothing new either. This in a case where a vehicle parts maker, Natron, sued its suppliers for patent infringement over a car seat with massage effect...
Already Stewed
Posted on March 07, 2009Serial patent infringers banded together years ago in a determined siege to bribe Congress to pass new legislation. Consider that the courts have been patents' pressure cooker in recent years, and those effects need a longer view before jumping into the deep end with more radical changes...
Marked Marketing
Posted on March 06, 2009Lewis Ferguson et al filed a patent application claiming marketing methods, and, really, the pits of vagary, claims of a "paradigm for marketing." The prosecutor needs to have his head examined. The examiner rejected the 68 claims under prior art and indefiniteness...
Stay
Posted on February 25, 2009Generic drug maker Teva has been working to cut into Eli Lilly's profits on its patented drug, Evista®, which treats postmenopausal osteoporosis, a disease exacerbated by poor lifestyle choices. Lilly sued. As is statutory, the judge slapped a stay, delaying Teva's FDA approval, pending trial...
Drumming
Posted on February 25, 2009Microsoft today filed patent infringement suits against TomTom, Amsterdam-based maker of vehicle navigation GPS systems, both in Washington district court, and the ITC. Eight patents are asserted, five on navigation, three on file management. Microsoft deputy general counsel Horacio Gutierrez claimed that Microsoft has been trying to engage TomTom in licensing talks for over a year...
Fire Away
Posted on February 25, 2009Yesterday, the Supreme Court declined a petition to review the Singleton v. Volkswagen case, regarding transfer of venue under 28 U.S.C.§1404(a). That leaves the CAFC "transfer away" precedent of TS Tech standing. Also declined was review of declaratory judgment motions, in Forest Labs v...
Rambus Relieved
Posted on February 23, 2009The anti-patent FTC lost its bid to kick Rambus around some more with its antitrust boots. The Supreme Court demurred from taking the case. Without comment....
Damages Derision
Posted on February 22, 2009While Alactel-Lucent and Microsoft have settled much of their patent spat, one outstanding battle, rushing headlong towards a CAFC cliffhanger, worries over damages method. The case involves a $511.6 million award to Alactel-Lucent over a calendar function...
Not Circling the Wagons
Posted on February 22, 2009Another year, another turn of the wheel, and the same patent political issues rear their ugly little heads. Senate Minority Whip Jon Kyl (R-Arizona) has his shtick of pocketing lobbyist money by promising to rape DataTreasury of patent protection for its digital bank check processing, known as "Check 21...
Cartoon Comprehension
Posted on February 20, 2009Management consulting firms are inherently oxymoronic, because any manager that needs consulting from an outside firm is a moron. As in, you run a business, but don't know how to run your business, so you hire consultants? What does this have to do with patents? Well, I agreed to participate in a survey about the patent business, being conducted by a...
First to Fail
Posted on February 19, 2009The great anachronism of the U.S. patent system arises with interferences, a natural outgrowth of making priority a mystery by having a first-to-invent regime, rather than the tidier first-to-file, adopted worldwide, everywhere but this backwater too proudly called "the good ole US of A...
No Noise Reduction
Posted on February 18, 2009Headphone makers Bose and Lightspeed haven't come up to speed for a complete cross-licensing of their noise-reduction technologies, so they keep at each other. In 2002, Lightspeed settled with Bose over an Oregon court battle, Lightspeed's home turf. Bose agreed to lay off Lightspeed for improvements to Lightspeed's headsets...
Fighting to the Finish
Posted on February 16, 2009No aspect of patent law better illustrates the trend in recent years for the Supreme Court to introduce uncertainty into patent litigation than declaratory judgment - when can a potential infringer sue a patent holder, so as to get the advantage of being plaintiff? Before the SCOTUS MedImmune decision, the line was clearer than "under all the circumstances...
Calmed Waters
Posted on February 14, 2009Contech Stormwater Solutions sued Baysaver Technologies and Accubid Excavation for infringing 5,707,527, which claims "a method of storm water filtration that utilizes replaceable water-permeable baskets and a 'siphon effect.'" Claim construction was followed with defendants' successfully motioning for noninfringement, which was affirmed on appeal...
Inscrutable Inconsistency
Posted on February 13, 2009Amphire Solutions tried to get a patent (2003/0188264) on normalizing XML into a relational database, reducing redundancy using linked lists. On appeal before the patent board (BPAI), the application was Bilskied, then stomped by Obzilla. While the Board found computerized methods abstract, and hence unpatentable, a computer performing a function is not abstract, and hence patentable...
Wardrobe Malfunction
Posted on February 13, 2009Ms. Rothman bore her first child in March 2000, then "sought out a nursing garment that would conceal her stomach while providing easy nursing access and full breast support. Unable to locate anything more elaborate than "just basically nursing bras," Ms...
Fools Errand
Posted on February 10, 2009It is painful watching the new administration stupidly struggle with rebooting existing banks by buying their worst assets, the "bad bank" concept. The approach is fundamentally wrong. The government needs to buy/nationalize at least one nationwide bank, such as CitiGroup, which employees call "too big to fail, too shit to buy...
2009 Patent Reform
Posted on February 10, 2009The Manufacturing Alliance on Patent Policy (MAPP), a coalition of over 130 non-pharmaceutical manufacturers, took a backhand slap at Sen. Patrick Leahy in a letter to President Obama Tuesday, warning that the proposed patent reforms in recent years would hurt manufacturers by weakening patent protection...
Pimped Out
Posted on February 09, 2009Article One Partners announced today its first "winning" patent study for prior art deemed worthy of invalidating patent 6,784,873, to the benefit of accused infringer Garmin. The prize: $50,000 split two between two "advisors". The art: a 1991 WIPO Publication, and a 1998 out-of-print Windows CE textbook...
Blown Candle
Posted on February 09, 2009Ball Aerosol sued Limited Brands and Bath & Body Works for infringing 6,457,969, which claims "a candle tin with a removable cover that also acts as a base for the candle holder." Ball won a summary judgment verdict of infringement, which included a sua sponte finding of validity...
Court Reform
Posted on February 08, 2009The Coalition for 21st Century Patent Reform is working "to secure enactment of recommendations in the 2004 report of the National Academies of Science (NAS)." Disappointed with Congressional efforts the past few years, and the USPTO, the lobbyist is declaring victory in light of recent court cases...
Prosecution for Enforcement
Posted on February 08, 2009It's relatively easy to get a novel invention examined and granted. That statement is enough to make many a seasoned prosecutor choke. That's because most seasoned prosecutors don't litigate. The high art form of prosecution is prosecuting for litigation...
The Invisible Edge
Posted on February 06, 2009It's refreshing to read a patent study that stands up and shouts sense. Mark Blaxill and Ralph Eckardt, in "The Innovation Imperative: Building America's Invisible Edge for the 21st Century" look to the past as a candle to light the way forward...
Pumped for Action
Posted on February 05, 2009The Nanny State of America, 21st century style, buys dross loans as a bailout for greedy but now bankrupt bankers, ostensibly to stimulate the economy, rather than cutting taxes, which really stimulates the economy. Now it wants to force companies to make drugs, when they'd rather be paid off not to...
Publicity for Stupid
Posted on February 05, 2009Trumpeting expressed ignorance is not usually a publicity-seeking modus operandi. But for two patent Paris Hiltons, it seemed just the ticket. Professional patent wrestlers Nathan Myhrvold of Intellectual Ventures and Stanford University Law Professor Mark Lemley are tag-teaming to battle the unknown: who is behind the "flood" of patent litigation in the past decade? Let me save you guys a lot of work...
Wounded
Posted on February 03, 2009Kinetic Concepts (KCI) sued Blue Sky Medical Group and others for infringing 5,636,643 and 5,645,081, which claim a way to treat wounds. The West Texas trial judge had trouble construing "wound." As in, changed his mind a few times along the way, up to and including giving jury instructions, when he gave up entirely on construing the term...
Xboxed
Posted on February 03, 2009Two years ago, Paltalk sued Microsoft for infringing 5,822,523, which claims group messaging. Xbox Live, Microsoft's online gaming service, is accused. Following claim construction, Microsoft sought summary judgment of invalidity based on prior art. Paltalk retorted that Microsoft was pitching piss-poor art...
Pyrrhic Victory
Posted on February 02, 2009In arguing the right to enforce slavery, Microsoft achieved a pyrrhic victory by transfer from Texas to Oregon in Odom v. Microsoft. With transfer, Microsoft has shot itself, delaying further court ruling that Odom has a valid and enforceable patent infringed by a central feature of Microsoft's Fluent User Interface...
Foliation
Posted on February 02, 2009Former patent office Commissioner Jon W. Dudas has found a home with Foley & Lardner. In apparently unrelated matters, former clients of Foley have filed suit against the firm. The complaint is that the firm failed to adequate represent their interests in a patent litigation, and overcharged them for the privilege...
Exhuming Examination
Posted on January 31, 2009Whatever the USPTO proposes for deferred examination (DE), and it surely will, the likely outcomes won't amount to a hill of beans. As a salve to pendency, DE as a dud is an easy bet....
Contained
Posted on January 30, 20095,743,942, owned by Süd-Chemie, claims a desiccant container. "Desiccant containers are frequently used to maintain a dry environment for products during storage or shipping." Süd-Chemie sued Multisorb for infringement. In summary judgment, the district court Obzillaed the patent in light of 4,487,791 (Komatsu)...
Engineered
Posted on January 29, 2009IEEE has issued its 2009 patent reform recommendations. First off, a better USPTO, but not expanding their rule-making authority. Clarify software as patentable. And then they get woolly. "Consider alternatives to patent protection." Where they lament patent pendency...
Unreal Estate
Posted on January 29, 2009Bilski, as intended, is eradicating business method patents. In Fort Properties v. Master Lease, Central District of California Judge Andrew Guilford granted summary judgment of §101 invalidity for 6,292,788, which claimed creating a real estate investment...
Procrastination
Posted on January 29, 2009John Doll isn't treading water as interim PTO honcho. He's busting a move to not bust a move examining patents. On a web page titled "Closing of the United States Patent and Trademark Office," the USPTO announced a "public roundtable discussion" February 12, about adopting a procedure for deferred examination, "in response to suggestions from stakeholders in the intellectual property (IP) community" who want to tread water...
Abolition
Posted on January 28, 2009The membership of the House and Senate Judiciary committees for the 111th Congress has been decided. What has also been decided is abolition of intellectual property subcommittees in both houses. That puts any patent reform agenda, and all its attendant issues, squarely before the full committee in each body...
Cream of the Crop
Posted on January 27, 2009For the third time, Rep. Darrell Issa (R-California) has reintroduced legislation for a pilot program to help educate district court judges about patent cases. Never mind that attorneys on both sides of a litigation are supposed to do that. The more experienced judges are well known...
Non-Copyists
Posted on January 27, 2009One could argue that everything needed would eventually be invented. No need for patent protection in a society content with its technology. Patents accelerate invention, by having an incentive to invent: an exclusivity grant. So whether an infringer copied a patent, or independently developed the technology, is moot...
Article Two
Posted on January 26, 2009Following in the soiled footsteps of Article One Partners, patent maimer by bounty hunting, Peer To Patent has added a branch organization, Post-Issue Peer To Patent, seeking to "improve the quality of patents by providing a framework for ferreting out weak, non-meritorious patent claims in patents that have issued...
Searching
Posted on January 26, 2009In the teeth of recession, how can patent law firms sharpen their competitive edges? According to Andy Gibbs, CEO of PatentCafe.com, interpreting facts as a matter of law does the trick. "The first Eureka moment will come when attorneys realize that the new family of IP software tools does NOT require patent search expertise as much as it requires legal interpretation to convert patent data to high value business information...
Rogue
Posted on January 26, 2009Hal Wegner: In a procedurally bold opinion in In re Comiskey, __ F.3d __ (Fed. Cir. 2009)(Dyk, J.), a panel has repudiated controlling precedent of the court and indeed 180 years of practice since the Patent Act of 1839 that had established a strict proscription against a judicial reviewing body of Patent Office decisions playing de novo "examiner"...
Intellectually Amish
Posted on January 25, 2009Patent examiners are embracing §101 rejection for process claims, reinvigorated by Bilski. Oddly, the rejections often skirt citing Bilski directly, instead relying upon earlier precedent, such as Benson. The Bilski ruling favorably cited 1982 Abele for discrimination between overreaching claims and more "narrowly-claimed process patent-eligible...
The Front Burner
Posted on January 24, 2009Hal Wegner has expressed "reason for optimism that patents will not be put on a back burner by the new President." Reason for optimism would be just the opposite: that things would simmer down, on the back burner....
Fuddy Daddy
Posted on January 24, 2009Advanced Micro Devices, playing David to Intel's Goliath, is struggling to stay afloat. AMD is preparing to spin off its manufacturing operations into a separate company, tentatively called the Foundry Company. AMD will then focus purely on designing processor chips...
Non-Obvious Claiming; Obvious?
Posted on January 23, 2009Arguably the best-known bit of patent law: "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title...
Strong Showing
Posted on January 21, 2009Friskit sued Real Networks for infringing patents for multimedia file playback over the Internet. Prior to KSR, the district court denied Real on obviousness. Post-KSR, in a renewed motion, Obzilla danced a terminal playback, killing them all. Friskit appealed, arguing three unanticipated limitations, along with "secondary considerations indicative of nonobviousness...
Up and Coming
Posted on January 21, 2009There is a continuing shift in U.S. patent grants towards Asian companies. While IBM stayed on top in 2008, at 4186 grants, #2 was Samsung (Korea, 3515), and #3 Canon (Japan, 2114). Of the top twenty patentees in 2008, 13 were foreign-based companies, all but one Asian...
The Bible
Posted on January 20, 2009Every once in a blue moon something incredibly good happens. No, this is not in reference to Jon "Evil Elvis" Dudas having just left the building. Now on tap, in draft, not quite bottled, is the "Patent Case Management Judicial Guide," a rather incredible compendium covering all aspects of patent litigation, not just judicial case management...
Nosedive
Posted on January 20, 20092008 will be remembered as the crashdown year in the 2nd Great Depression. The old saw is that patent lawsuits are immune from recession, but the 2008 numbers tell a different story. 2,605 patent suits were filed in 2008, down 8% from 2007. 2008 through July saw a 2% rise...
Perspectives
Posted on January 19, 2009Ivory-tower academic Doug Lichtman interviewed CAFC Chief Judge Michel. Michel displayed an impressive grasp of important facts and statistics, and a seasoned sense of reality, with interesting, albeit sometimes odd, views....
Patent Strategies
Posted on January 18, 2009Year after year, IBM plows ahead filing, and getting, more U.S. patents than anyone: 4,186 gotten last year, the 16th consecutive year leading the patent pack. Samsung came up to number two in 2008, with 3,515. HP has taken a different tack the last few years, and fallen behind in the numbers...
Compact Prosecution
Posted on January 17, 2009On the seventh office action of a competitive pricing patent application, yet another non-final, a new rejection appears, besides the continual findings of prior art pieces that never survive reply, owing to their inadequacy in rendering the claims anticipated or obvious...
Tiny
Posted on January 16, 2009Bilski has bilked Intel. The PTO patent appeals board rejected Intel's claimed alternately calculating using software or processor hardware depending upon whether the result was "tiny." Such calculation was found not to be "a practical application of the mathematical algorithm because the result d, a number, is not a tangible result because it is not a real-world result...
Stented
Posted on January 15, 2009Boston Scientific and Johnson & Johnson have a long-running battle of heart stent patents. Both have had victories in their war, which started in 1997. Today the victory was J&J's, overturning a unfavorable jury verdict, as Obzilla, the patent grim reaper, takes another victim on appeal...
Bled
Posted on January 15, 2009Canadian Nortel Networks, bled dry by bad management, has thrown in the towel. One analyst characterized Nortel as having the trifecta for becoming corporate toast: "lack of innovation, a lack of understanding their customers and a lack of marketing...
Damaging Apportionment
Posted on January 15, 2009Scott Shane has thrown another log in the fire roasting the idea of apportionment as a means for figuring patent damages. Apportionment was found to be bad news for patent value, naturally, but also R&D, company valuation, and jobs. The harm would purportedly be unevenly spread, affecting more industries reliant upon innovation...
Mental Method
Posted on January 14, 2009Stephen Comiskey filed a business method patent application, which he pursued to the CAFC, which ruled his idea an unpatentable "mental process." Petition for en banc rehearing met with cacophony: limited to authorizing the panel to revise its earlier flub, to a chorus of dissent...
Sucker
Posted on January 12, 2009National Products (NPI) started an enforcement campaign with 6,666,420, filing "at least six separate lawsuits against various entities." '420 claims suction cup mouting for portable equipment. Panavise, a competitor, got spooked, so it filed a declaratory judgment motion, practically admitting infringement, but of course seeking a ruling that it did not, as well as '420 being invalid and unenforceable and everything vile...
Bad Coordinates
Posted on January 11, 2009Vehicle IP sued General Motors and others over 6,535,743, claiming "a system for providing directions." The defendants evaded infringement in summary judgment over construction of the term "coordinate." The district court construed a coordinate as multiple numbers...
Oprah
Posted on January 09, 2009Scott C. Harris was reputedly booted by Fish & Richardson for asserting his patent, 7,111,252, against Google. Now Oprah's Harpo Productions is being sued. The patent claims partial book review over the Internet. Oprah's Book Club web site offers book previews...
Obviously Flowing
Posted on January 09, 2009Tokyo Keiso tried pipe-hitting SMC for infringing 5,485,004, claiming a pipe volume flow meter. Figuring Obzilla would take the "predictable next step", the district court found "the '004 patent obvious as a matter of law." No argument from the CAFC on that...
'Peter Principle' Poster Boy Moves On
Posted on January 07, 2009USPTO Director Jon W. Dudas is rumored to be resigning. Since taking office in July 2004, Dudas has displayed unprecedented aptitude for infantile outbursts against PTO employees and patentees; instilling opacity in agency operations enviable to Soviet apparatchiks; astonishing duplicity in diminishing patent quality while paying lip service to it; illegal, albeit futile gestures in changing examination rules; slave-driving employees with counterproductive production goals at the expense of decent examination; bodacious benign neglect of patent pendency, a tacit admission that the PTO is a lousy place to work, and nothing to be done about that except frenzied hiring; and roiling the patent community into a state of nonplus...
Post-Board Muleage
Posted on January 06, 2009Examiners consistently rely on baseless rejections, hoping applicants won't realize examiner ignorance, explore examiner incompetence, nor argue against examiner authority. Often, applicants amend or file RCEs, allowing examiners to milk applicants for all the counts they're worth...
Patent Power
Posted on January 05, 2009IEEE has declared Microsoft numero uno in 2007, by a wide margin, for "adjusted pipeline power" software patenting. So-called pipeline power is a measure of patent count, technology range, and influence (patent citation by others)....
Cutting Farts
Posted on January 05, 2009Whining has become the American way. U.S. car makers, uncompetitive for over 30 years, fly to Washington in private jets to beg for spare change - just enough to fill their golden parachutes before bankruptcy. High-tech computer companies spend hundreds of millions to whine at Congress because of highfalutin inventors wanting to enforce the patent laws...
Shiver
Posted on January 03, 2009"Abstract software code is an idea without physical embodiment." So opined the Supreme Court in Microsoft v. AT&T, 2007. The high courts in recent years have done what they could to denigrate software as unpatentable, most recently in a stunningly incoherent ruling at the CAFC In re Bilski...
Rear View 2008
Posted on January 02, 2009Patent reform fell off Congress' radar while the USPTO hit a nadir in bad management. The Supreme Court was mercifully mum, except for exhausting patents, while the CAFC went into the weeds on more than one occasion....
Nailed
Posted on January 01, 2009Acumed sued Stryker over 5,472,444, which claims an orthopedic nail for mending the upper arm bone. Acumed got a permanent injunction, which was trashed by the CAFC in the wake of eBay's strict four-factor metric. On remand, same result: permanent injunction...
Get Out of Town
Posted on December 29, 2008Lear sued TS Tech for patent infringement in the Eastern District of Texas. Judge T. John Ward denied TS Tech's transfer motion. In a ruling of thin logic, failing to explain its reasoning beyond trivial convenience, Lear's interlocutory petition for writ of mandamus is granted by the CAFC...
Not Blissed
Posted on December 27, 2008Sundance sued DeMonte for infringing 5,026,109, claiming a retractable tarp. "Demonte's patent law expert, Daniel Bliss, opined that one of ordinary skill in the art would be motivated to combine" two prior art references to render '109 obvious...
Mundane
Posted on December 27, 2008Indubitably unbiased, InformationWeek's Microsoft blogger, Dave Methvin, laments small fry with software patents. "It seems like every few months, some obscure company is awarded a patent for some relatively mundane idea, then turns around and sues the companies that have been using it...
Gin Rummy
Posted on December 25, 2008The U.S. Chamber of Commerce shows it knows how to stew analytic gumbo - its recommendations for the USPTO seamlessly blend fact and fiction....
Driving
Posted on December 25, 2008Ricoh sued Quanta for infringing four optical disc drive patents. 6,631,109 was stomped by Obzilla. 6,172,955, 5,063,552 and 6,661,755 were found not infringed. The appeals court thought Ricoh should have gotten a better shake on '522 and '755, particularly with contributory and inducing infringement...
Funked Koo Kung Fu
Posted on December 22, 2008IBM inventors Fred Koo and Ting Leung got their database query modification patent application sua sponte kicked in its Bilski on BPAI appeal. The decision shows how moronically the CAFC In re Bilski ruling is being applied. Not that something better could have been expected...
Sour Grapes
Posted on December 21, 20086,673,064 claims a laser catheter. Dr. Peter Rentrop sicked '064 on Spectranetics, and copped a cool half million. Spectranetics, after sloppily stirring as much trouble for Rentrop as it could, appealed losing on obviousness, among other profundities...
Pole Position
Posted on December 20, 2008Gary Wheeler cast for a fishing pole patent, and got snagged by the patent appeals board, which found Wheelers illuminated transparent pole anticipated by fishing pole with a light bulb attached to the tip. The CAFC illuminated the pathetic shambles that the rejection-crazed patent office has become: they dont even comprehend §102...
Loop in the Lasso
Posted on December 20, 200835 U.S.C. § 271 defines "infringement of patent." ¶ (f) closed a dodge: foreign assembly that would be infringing if done domestically. The Supreme Court, in Microsoft v. AT&T, declared software an exception to that - one could skirt process infringement by shipping a software disc out of the country...
Patent Law Outline
Posted on December 19, 2008The best patent law blogs act as a ready reference for case law. The Patent Prospector attempts this by covering CAFC cases with copious quotation, the entries categorized. Michael G. Sullivans The Power of the Outline takes a different, rather extraordinary approach, beguiling in its simplicity...
Vaccination
Posted on December 19, 2008Bilski has no basis in statute, and by any reasonable metric of jurisprudence, is downright bad case law. That's right, Chief Judge Michel, I am addressing you, sir. You are just making stuff up willy-nilly. But it doesn't help that prosecutors draft jackass claims, which examiners let pass, and then, rather than sicing the big-footed Obzilla on them for a good stomping, it's just too easy to rule: "damn, son, you can't patent that...
Chucked
Posted on December 18, 2008In June, Nintendo sued Nyko for its award-winning Nunchuk video game controller, Nintendo calling Nykos version a copycat of its patented design. Wednesday they settled, in an agreement undisclosed, other than Nyko can sell a redesigned version....
Tossed
Posted on December 17, 2008Asokkumar Pal looked away from the screen and wiped his eyes. He was tired. Hed been with the agency 25 years. A long haul. Now it had crumbled away, as if he was a wad of paper, to be used and tossed. It wasnt right. He did the best he could. His resolve stiffened...
Nearly Done Deal
Posted on December 17, 2008Reflecting Alcatel-Lucent circling the wagons, they settled with Microsoft on six patent litigations dating back to 2002, before Lucent was acquired by Alcatel. One still-outstanding tab is a $ half-billion trial verdict overhang against Microsoft on touch-screen technology...
Nipped in the Bud
Posted on December 17, 2008Anheuser-Busch settled a lawsuit brought by a Quebec company asserting 6,852,191, claiming a double-sided label technology. The only comment on the settlement from a relieved A-B attorney was "mutually agreeable terms," and perhaps a mumbled "it's Miller time...
Jurisdiction
Posted on December 16, 2008The appeals court is sponsoring a shell game against folks threatened with patent infringement by foreign companies. Aten, a Taiwanese company, affiliated with IOGEAR, sent threatening letters of infringement regarding patented KVM switch technology. Recipient Avocent sought declaratory judgment in Alabama, where it is located...
Fingered
Posted on December 15, 2008Welker Bearing sued PHD for infringing patents claiming clamping fingers securing a work piece for welding. The disputed claim term was "mechanism for moving said finger," construed as a means-plus-function claim. While "means for" typically signals the claim form, "mechanism" is a sometimes substitute term for "means...
Falling
Posted on December 14, 2008Nortel and Alcatel are exemplary telecom and network companies falling fast in the wake of the world recession. Nortel is even facing demise. Once fierce in their patent bite, they are now looking mostly just long in the tooth....
Blue Grass
Posted on December 14, 2008iLOR sued Google for infringing 7,206,839. Losing claim construction, the Kentucky district court judge denied iLOR's preliminary injunction motion, granted Google's summary judgment of noninfringement, and sua sponte dismissed the "action" with prejudice...
Backlog
Posted on December 14, 2008The root problem with patent quality has always been with the patent office. The current USPTO administration has rightly received nothing but criticism for its high-handed rules changes, poisonous work environment leading to massive attrition, shoddy examination regime, and blame game on applicants...
Unpredictable
Posted on December 12, 2008Apotex tried to muscle in on the market for Plavix, a blood clot treatment, by challenging the validity of 4,847,265, owned by Sanofi. '265 claims a chemical compound, which Apotex argued anticipated in the prior art, and obvious. The courts sided with Sanofi...
In the Pool
Posted on December 06, 2008Stanford University academics Ryan Lampe and Petra Moser, in "Do Patent Pools Encourage Innovation?": Regulators favor patent pools to encourage innovation in industries where overlapping patents and excessive litigation suppress innovation...
Dead Man's Hand
Posted on December 05, 2008Lame duck USPTO lawyer James Toupin did his best to sew a silk purse from a sow's ear in oral arguments at the CAFC today, in USPTO v. Tafas & GSK. Of course, anyone who will say anything to win arguments is oxymoronic to having integrity. In this case, the disgraceful USPTO argued that its rules to limit continuations are piddling, while the reality is the rule changes are substantial, and the likely impacts considerable...
Rutabaga
Posted on December 04, 2008Samy Gharb fell off the turnip truck and wandered into the Federal Circuit Court of Appeals. After having his patent assertion against Unitronics squashed flatter than hammered shit, including "a permanent injunction to preclude Gharb from threatening Unitronics and its customers with infringement litigation," Gharb, unable to read the legal dictum on the wall, appealed...
Distinction
Posted on December 04, 2008The USPTO rules changes successfully challenged by Dr. Tafas and GlaxoSmithKline head to oral arguments before the CAFC Friday. The beetles in the patent office rolling their dung ball up the hill this far practically defines the difference between determined cunning and intelligence...
Consequence of Silence
Posted on December 02, 2008Qualcomm "breached its duty to disclose" two patents before a standards-setting organization, the Joint Video Team (JVT). Consequently, the district court deemed the patents "unenforceable against the world," and, finding the case exceptional, awarded competitive combatant Broadcom attorneys fees...
Inside Job
Posted on December 02, 2008Joe Mullin penned a sagging saga of supposedly secret patenting in his entry about Odom v. Microsoft. The Joe Zone of the Unknown will shrink soon, as infringement contentions are due Friday....
Whaling
Posted on December 01, 2008Two recent Supreme Court cases affirming the power of the police state, unrelated to the mercantile motives of patents, nonetheless toll the death knell for the "substantial question of patentability" defense in fighting a patent-holder's motion for a preliminary injunction...
Frivolous
Posted on November 30, 2008Triune Star sued Disney, LG Electronics, and others, for infringing 6,122,521, which claims an infrared cell phone camera. Triune conceded that defendants didn't have such a product, thus didn't literally infringe. Illinois district court Judge Mihm blew off the possibility of doctrine of equivalents owing to prosecution estoppel...
Suppression
Posted on November 27, 2008Hal "The Snoop" Wegner: "The PTO has systematically suppressed access to its internal decisions. Anecdotal evidence suggests that access to petitions decisions would reveal widespread practice violations by Examiners, sometimes upheld by Technology Center Directors as well...
Zemplar
Posted on November 25, 2008The laugh riot of Abbott and Costello quieted when years of drinking rot-gut begat Costello chronic kidney failure. Interstellar quasar TV transmission from earth to Qo'noS, Klingon home world, made the comedy duo a cross-species phenomenon. Few humans could so touch the funny bone of Klingons, owing partly to the fact that the Klingon funny bone is quite tiny...
Brass in Pocket
Posted on November 24, 2008RPX is a patent troll basher that is putting it's money where it's mouth is. RPX, a self-titled "defensive patent aggregator," is buying patents to keep them from being asserted against its pals. RPX's initial pals are IBM and Cisco....
Wireless
Posted on November 24, 2008Reed Hundt, former elementary school principal, was FCC chairman in the Clinton administration. In 2006, he wrote a genuinely stupid opinion piece in Forbes disparaging the U.S. patent system, suggesting arbitrarily slashing patent grants by 90%, and other lunacy...
Insect Screen
Posted on November 23, 2008Anderson sued Pella for infringing its bug screen patent, 6,880,612. Summary judgment motions were swatted aside. Then Obzilla buzzed in. Drunk on KSR bug juice, the district court reconsidered, and squashed the patent. On appeal, how creative an ordinary bug screen maker could be becomes factual...
Plugged
Posted on November 20, 2008Medegen sued ICU for infringing 5,730,418, claiming "a needle-free valve for intravenous (I.V.) therapy used to administer fluids to a medical patient." '418 solves the problem of "retrograde flow," "the reverse flow of fluid out of the patient's body and back into the catheter tubing," by using a sliding plug...
Perfection
Posted on November 20, 2008Throw the confetti; break out the champagne; the USPTO has finally achieved perfection. According to the USPTO's FY 2008 Performance and Accountability Report, the PTO has met 100-percent of its performance goals. We can all stop worrying about poor examination quality and dishonest mis-management, because this is perfection baby!...
Gamy
Posted on November 19, 2008In their initial press release, Article One Partners declared "the current U.S. Patent System is outdated, archaic, and stifling to innovation." Their solution? Game the system....
Kitchen Sink Solutions
Posted on November 19, 2008The Chamber of Commerce has released a draft report outlining proposed solutions for problems that currently plague the USPTO. The report, aimed at providing recommendations to the incoming Administration, includes all of the usual suspects - all of them...
Musical Chairs
Posted on November 18, 2008With USPTO Deputy Director Margaret Peterlin vamoose, John Doll steps in, with Deputy Commissioner for Patent Operations Margaret ("Peggy") Focarino filling Doll's erstwhile Commissioner for Patents chair. Effective immediately. Both Doll and Focarino have been with the Office for over 30 years...
Pay to Play
Posted on November 17, 2008New 37 CFR § 11.8 now requires an annual $118 "practitioner maintenance fee," payable in advance, for all registered USPTO agents. Penalty for non-payment is suspension. Pro se prosecutors are still scot free....
Process Flavor de Jure
Posted on November 15, 2008The techno-Neanderthal CAFC having roiled process claims with its bilious Bilski ruling, the question remains how to best draft software method claims. The economical "computer-implemented method" preamble may not fly now. Another charade exists...
Bad Brew on Good Chemistry
Posted on November 13, 20086,365,687 claimed a chemical process used in plastic packaging, first disclosed in 1958. Oddly, '687 underwent Director-ordered reexamination, and was found unpatentable by prior art and double patenting. A 2-1 appeal decision damned a patent for which inventors Dr...
Discipline
Posted on November 12, 2008Patent practitioners take note. As of September 15, committing any crime, including those of immodest moral turpitude, such as being caught for commercial engagement of prosecution in your pants, can result in revoking your "privilege" to prosecute before the USPTO...
Jack It
Posted on November 11, 2008Patently-O's Professor Dennis Crouch reports, as a straight man for unintentional comedy, that Senior IP Counsel at SAS US, Tim Wilson, having constructed a hypothetical demand curve "using the powerful computing resources of SAS," figures that if patents cost as much as $50,000, there would be a "dramatic decrease" in patent filings...
Getting Physical
Posted on November 09, 2008Non-final office action, received post-Bilski, directed to claims with the preamble: "A computer-implemented method comprising:", followed by steps of computer file selection, storage, and network transfer/copy. Examiner rejection as follows: The claims lack the necessary physical articles or objects to constitute a machine or a manufacture within the meaning of 35 USC 101...
Lame Blaming About Claiming
Posted on November 07, 2008CAFC Judge Plager recently mused out loud about claim construction, most strikingly, his and the court's technical incompetence. The fundamental problem with claim construction today is that too many claims are no longer describing hammers or machines or other physical objects--though we have had our share of interpretive trouble even with some simple things like what is a "board...
Embarrassing
Posted on November 05, 2008Blogger Rick Frenkel, former Cisco IP honcho, ran a hot little number called Patent Troll Tracker. Anonymously. The bling was pissing on inventors using shell companies in asserting their patents, at least one of whom got pissed, namely Eric M. Albritton, plaintiff attorney for those being peed upon, in what Rick richly called the "Banana Republic of East Texas...
PCTs Down Under
Posted on November 04, 2008Add IP Australia to the list of patent offices selectable as international searching authority and international preliminary examining authority for PCT applications filed with the USPTO. The Australian Patent Office joins the ranks of the USPTO, the EPO, and the Korean Intellectual Property Office, all eagerly awaiting to assist inventors with all of their PCT needs...
Divining Bilski
Posted on November 04, 2008Bilski was nothing short of a jurisprudential obscenity, horrendous in its incoherence. To the degree it was coherent, it was ludicrous. That makes Bilski a definitive statement on the quality of the CAFC, most notably majority author Chief Judge Michel...
Genus Overclaim
Posted on November 04, 2008Dr. Kenneth Alonso lost his appeal for patenting a cancer treatment because, while he claimed a genus, he had only disclosed some species, and insufficiently so. Disclosure coverage is at issue when the claimed genus is wide-ranging, and the disclosed species may not be fully representative...
Amazin' Claimin'
Posted on November 03, 20085,188,861 claims a process for flavoring dried fruit. Patent holder Amazin' Raisins sued Ocean Spray Cranberries, hoping to squeeze some fruity lucre. Ocean sprayed them down, Amazin' losin' on claim construction. Non-infringement summary judgment was upheld on appeal...
Bilking Bilski
Posted on November 02, 200835 U.S.C. § 101 cedes patentability to "any new and useful process," without further qualification. The CAFC Bilski ruling, limiting process claims to being tied to a particular apparatus or transforming something, has no basis in statute, and questionable case law heritage...
Milking Bilski
Posted on November 01, 2008Bilski was a simple ruling, affirming State Street. The Bilski brouhaha was its effect on software and business method patents, of which there was little to none. The reaction of uncomprehension has been impressive, a Rorschach of patent attitude. Anti-patenteers who drank the mega-tech corporate kool-aid were delusionary thrilled...
Software Patents
Posted on October 31, 2008Software patents are best embodied as method claims. Did yesterday's In re Bilski decision change the patentability landscape for software? Not in the least. If anything, Bilski, reinforced the patentability of software as a data transformer....
Method Acting
Posted on October 30, 2008Bernard Bilski and Rand Warsaw filed a patent application claiming managing commodities trading risk. The patent appeals board agreed with examiner rejection that the claimed process wasn't statutory under §101. In a sua sponte en banc hearing, the CAFC affirmed, albeit contentiously...
Venue Chopping
Posted on October 29, 2008Earlier this month, a Texas product liability case, over an auto accident, In re Volkswagen, has raised a specter that venue transfer may be more easily accomplished in patent litigations. The specific stir is that patents suits may be pried from the Eastern District of Texas, a "rocket docket" venue popular for its jurisprudential economy, owing to efficient case management and concentrated experience with patent cases...
Belated Inventor
Posted on October 28, 2008Oren Tavory might have been a co-inventor in the patents that net NTP $612.5 million from Research in Motion (RIM). Code he helped write was part of the parent patent application. Tavory was deposed in the NTP patent litigation, but didn't state an inventorship claim then...
Down The Road Kill
Posted on October 27, 2008The USPTO proposed rules on information disclosure statements (IDS) and on applications with Markush claims will not be published as final rules by the current Administration, PTO Deputy Commissioner for Patent Operations Margaret Focarino announced last Friday...
Money Talks
Posted on October 26, 2008Aaron D. Clark, 37, invented the talking poster, which responds to a button touch. 5,548,272 et cetera. Warner Brothers, New Line Cinema and others licensed the technology, for movies such as Batman, Austin Powers, and music groups such as 'N Sync and Backstreet Boys...
Brewed
Posted on October 24, 2008Green Mountain Coffee Roasters subsidiary Keurig invented a disposable single-serving filter cartridge, suitable for hot drinks such as coffee, tea, and hot cocoa, invention embodied in 6,607,762 and 7,377,162. Keurig sued Kraft Foods in January 2007 for infringement...
Staying Alive
Posted on October 23, 2008As Wall Street floats on an ocean of dumb money, so invention floats on an ocean of dumb patents. Frequently, patent holders solicit Patent Hawk services with "lame duck" patents - a solitaire patent, often with weak claims, without any continuation...
Preliminary Jam
Posted on October 22, 2008Sandoz prompted a classic drug patent battle with Abbott Labs by filing an ANDA. Abbott got a preliminary injunction, which Sandoz appealed. The CAFC covers anticipation for the second day standing, and Judge Newman paints Obzilla in softer tones than recently seen...
Means Streets
Posted on October 21, 2008Net MoneyIN asserted 5,822,737 & 5,963,917, which go to "systems for processing credit card transactions over the Internet," against Verisign and other online credit card vendors. The claims, in the form of means-plus-function, were invalidated because they lacked specification support...
Damaged Damages
Posted on October 20, 2008A panhandle judge pandered to his prejudice by capriciously denying Floyd Minks $1.3 million in jury-awarded patent damages against Polaris, instead parceling Minks a measly $55,000, but granting attorneys fees, albeit half the amount requested without offering a new trial...
Term Limits
Posted on October 18, 2008One might naively imagine that the patent office would encourage patenting, and seek to offer its clientele, inventors and patent prosecutors, every advantage. Today's USPTO is quite the opposite. In this episode, the patent office is caught stealing patent term, unlawfully limiting the duration of patent grants...
Anticompetitive
Posted on October 16, 2008"A patent by its very nature is anticompetitive." So the CAFC remarked in affirming summary judgment punting of an antitrust case based upon patent protection, and a kickback ("reverse payment") settlement agreement between patentee Bayer and generic makers, over Cipro®, covered by 4,670,444...
Shoxing
Posted on October 16, 2008Wal-Mart sells a fitness shoe, doubtlessly made in China, that looks strikingly a knock-off of Nike's patented Shox shoe - D498,914 and D499,248, to be precise. Oregon-based Nike, doing a bit of venue shopping, filed its complaint in the Northern District of Illinois...
Let's Do It Our Way
Posted on October 16, 2008The USPTO has filed a reply brief in appeal for its righteous battle to enact its Final Solution, changes limiting extravagance on claims and continuations. According to the brief, a rehash of earlier cogent and compelling arguments, the rules are consistent with the Patent Act, and are within the Office's rulemaking authority...
Cycling
Posted on October 15, 2008Patents trend a bit counter-cyclical to the business cycle. While patent holders file suits good times or bad, companies focus on alternative revenue streams as product sales slow. Companies feeling economic pinch scrounge for profitable prospects, and out pop patent suits...
El Presidente
Posted on October 15, 2008Donald Zuhn at Patent Docs wrote an excellent overview of the presidential candidates' stances on patents in his entry "Presidential "Debate" on U.S. Patent Policy." Patent Docs is one of my favorite patent blogs. Consistent solid reportage...
Down Boy
Posted on October 14, 2008As part of their ongoing patent war, Broadcom put Qualcomm before the ITC for infringing 6,714,983. The ITC did not find direct infringement, but did find inducing infringement, and so "issued a limited exclusion order ("LEO") against the importation of all downstream products containing the accused technology...
Effective Filing Date
Posted on October 12, 2008Technology Licensing (TLC) went after Gennum for infringing a family of patents going to video synchronization. The most interesting facet of this case pivoted on patent priority date. Where there are continuations-in-part (CIP), a claim is entitled to the effective filing date of an application that provides written description support for the claim...
Persistent
Posted on October 12, 2008Last week, Colorado district court Judge Matsch (pictured) got fed up with McDermott, Will & Emery for its representation of Medtronic against BrainLAB in a surgical instruments patent case. Judge Matsch ordered the law firm and Medtronic to pay $4...
Bad Apples
Posted on October 12, 2008Straight from the horse's mouth: "here at the USPTO, we got nothing but bad apples". Reflecting on end-of-year examiner performance ratings, USPTO upper management sputtered "that it wasn't possible that the agency had that many outstanding employees"...
Fact Into Fiction
Posted on October 11, 2008A trial court is trier of fact, with judge or jury as decider of fact. But a judge may overrule a jury verdict, thus obviating the jury's role. The judicial game is rigged with juries as showpieces of democracy in action. Case in point: Asyst Technologies v...
Anticipation Without Obviousness
Posted on October 10, 2008Cohesive Technologies sued Waters for infringing patents claiming liquid chromatography. A jury found the patents not obvious over "seven separate prior art references." In a 2-1 appeal decision, the CAFC remands because seven patents that singularly or in combination didn't render the patents obvious, to which all agreed, but the appeals court majority thought they might anticipate...
Complexities
Posted on October 10, 2008Predicate Logic sued Distributive Software over 5,930,798, claiming "measurement and analysis technologies for use in software development." During the litigation, Distributive requested ex parte reexamination of the '798 patent, and the claims were allowed as amended during reexamination...
No Respect
Posted on October 09, 2008The old fart known as John McCain apparently has no respect for intellectual property rights, merchandising his faltering campaign by appropriating songs by Jackson Brown ("Running on Empty") and Foo Fighters ("My Hero") without permission...
Giving It A Rest
Posted on October 08, 2008The Supreme Court has rejected a number of patent appeals recently, not altogether unexpectedly, so it appears the SCOTUS won't blow snot on us for the first time in several years. Recent pleas have been procedural rather than substantive issues. Not much of a rug to pee on...
Fueled
Posted on October 08, 2008Advanced Micro Devices (AMD) competes in a CPU duopoly against Intel, holding a 20% market share short-straw to Intel's 80%. The struggle has been fierce, and now moves into a new phase. Yesterday, AMD announced a strategy, financially fueled by Abu Dhabi, that has Intel fuming over patents...
A View from the Court
Posted on October 07, 2008CAFC Judge Alan D. Lourie spoke to the Virginia State Bar IP Section last week. For the past couple of decades, we have been in the midst of what many of us have called the golden age of intellectual property. Patents and copyrights have been recognized as important contributors to our system of industrial innovation and they have been readily enforced by the courts, which wasn't always the case historically, at least for patents...
Deep Dish
Posted on October 07, 2008Patent infringers often seem patent illiterate, unable to read the writing on the wall - led by stubborn CEOs, unwilling to take a license, fighting until the last dog bone is buried. Consider Jim Basillie at RIM (v. NTP), who fought in every forum, until he popped his britches and $612...
Phoning in Junk
Posted on October 07, 2008Pitiable pukes who poot about patent trolls are merely mouthing mega-corporate mush. Notwithstanding that patents are a tradable commodity, with any owner having the same right of enforcement as the original inventor, consider the flip side - corporations strong-arming their brethren with nothing but trash talk...
Flash of Genius
Posted on October 04, 2008The movie Flash of Genius, about intermittent windshield wiper inventor Bob Kearns, is sketchy, edgy, and uncomfortable. Bob becomes obsessed with righteousness over his invention, e.g. 4,339,698, stolen by Ford Motor Corporation, and quickly adopted by other auto makers...
Inequitable Conduct
Posted on October 04, 2008Professor Lisa A. Dolak of Syracuse law school has given considerable research and thought to what amounts to a death sentence for patents. Excerpts from a paper presented last month - There is no question that inequitable conduct allegations drain resources and inject uncertainty into litigation...
What Goes Around...
Posted on October 03, 2008Much sourness has been provoked in recent years, and legislation mooted, that would radically alter patent law. From one writer regarding the current public temper - To put the matter very frankly, the attitude of many people in the country today with regard to patents is a petulant, irritated mood...
Enabling
Posted on October 03, 2008In a typical drug patent case, Impax wanted to barge in on Aventis' patented treatment for Lou Gehrig's disease (ALS), vis-ŕ-vis 5,236,940, so Impax filed an ANDA, then a DJ motion, charging invalidity and unenforceability for inequitable conduct. The judge didn't buy it...
Rogue Outfit
Posted on October 02, 2008In John Hopkins University v. Datascope, Judge Newman fingered the overbearing injudiciousness of the Court of Appeals panel in which she sat: There is no sufficient ground for this court's independent appellate trial of the factual issues that were decided by the jury and sustained by the district court...
Not Biting
Posted on September 30, 2008"Every day we're amazed at how victories in court don't necessarily lead to settlements. We really need the courts to help force these parties into settlement talks. We're not having as much momentum in signing new business as we've liked."...
Tanked
Posted on September 29, 2008Praxair sued Advanced Technology Materials (ATMI) for infringing three patents: 6,007,609; 6,045,115; and 5,937,895. All claim pressurized storage tanks. '609 and '115 went down on inequitable conduct, '895 on §112 ¶2 indefiniteness. On appeal, '609 and '895 popped back up from the grave, while '115 remained buried in a 2-1 split decision...
Life Support
Posted on September 28, 2008Transmeta, a creative Silicon Valley chip designer, had a promising future when it started in 1995. It developed CPUs with low power consumption, perfect for laptops. Intel infringed its patents, thus undercutting Transmeta's marketing edge....
Flashback Foresight
Posted on September 28, 2008World War II was coming to an end, Bing Crosby was playing on the radio, and Patent Office Commissioner Casper W. Ooms was professing: It has been brought to my attention that the practice prevails [in] the Patent Office of measuring the "amount of work accomplished" by Assistant Examiners during particular periods of time by assigning quotas of production...
In the Fire
Posted on September 27, 2008Broadcom and Qualcomm have a cell phone chip patent war going on. A major clash was appealed, with blood spilled. Broadcom got a permanent injunction, even though it didn't practice the claimed invention. While the courts found it "generally in the public interest to uphold patent rights," an injunction would not have been granted if not for giving Qualcomm a "sunset provision" to wean itself from infringement...
Moral Hazard
Posted on September 25, 2008This is a patent weblog, so pardon me. But the proposed $700 billion dollar bank bailout plan is astonishing in its giveaway to the financial industry. It's nothing but a bank holiday with taxpayers footing the tab. Let the banks fail. Greedy bastards made their bet, let them go bankrupt...
Sound & Fury
Posted on September 25, 2008AT&T developed digital audio compression technology, for which it got patents. In 1988, to further the work, AT&T entered a joint development agreement with German company Fraunhofer Gesellschaft. The result was the MP-3 standard, as well as more patents covering the standard...
No Petty Bone
Posted on September 24, 2008Electronic game machine maker Aristocrat sued International Game for infringing 7,056,215, a blemished patent. The blemish was to futz reviving the patent application after abandonment during prosecution. The district court turned the blemish to cancer, killing the patent...
Clay Pigeon
Posted on September 24, 2008"September 24 Is World Day Against Software Patents," booms Stop Software Patents. Benjamin Henrion, initiator of the StopSoftwarePatents coalition effort, explains "The aim behind StopSoftwarePatents is to gather a worldwide coalition of businesses and civil society in order to get laws which clearly exempt software from patentable subject matter...
Designing Law
Posted on September 23, 2008Egyptian Goddess sued Swisa for design patent infringement. The Goddess stumbled. On appeal, in a 2-1 panel brawl, the CAFC ginned up a new standard for design patent infringement. En banc rehearing resulted in the CAFC rebuffing itself, with the design patent standard rewound to 1871...
Microsoft's Patent Tax
Posted on September 21, 2008Microsoft appears to have mastered the art of the patent squeeze. A recent convert from being something other than a patent pińata, since 2003, the inception of its patent licensing program, Microsoft has wrestled innumerable cross-licensing agreements from a wide variety of technology companies...
Accel Excels
Posted on September 20, 2008Having recently completed an Accelerated Examination filing, I am convinced that this is the way to go, especially under ideal circumstances. Accelerated Examination (AE) has taken quite a lashing on this blog, with one muffin-head professing: "Forget accelerated examination...
Packaged
Posted on September 19, 2008Tessera asserted semiconductor chip packaging patents against Siliconware, Motorola, and Qualcomm, including 6,433,419. Patent Hawk was put on the case. Reexamination ensued. '419 rejection is now final, and heading to the patent appeals board....
Buffaloed
Posted on September 19, 2008CSIRO sued Buffalo in the Eastern District of Texas for infringing 5,487,069, claiming a technique for wireless networking. After claim construction, cross-motions for summary judgment left Buffalo holding the short straw: the patent valid and infringed...
The Black Bird
Posted on September 17, 2008The Wall Street Journal shines a spotlight on a tranquil troll, Intellectual Ventures (IV), lurking under the bridge of litigation, at least for now: Nathan Myhrvold [of Intellectual Ventures] has quietly amassed a trove of 20,000-plus patents and patent applications related to everything from lasers to computer chips...
Inexhaustible
Posted on September 16, 2008Hapless Excelstor, a Chinese company, wanted to sue its patent licensor, Papst, for not notifying it of a patent license agreement that Papst had for the same patent Excelstor licensed. The district court pitched the case for lack of subject matter jurisdiction...
Peer-to-Pissant
Posted on September 15, 2008A Peer-to-Patent email, picked up by several newspapers: Some of the biggest players in the technology industry complain that the U.S. patent system is broken -- putting too many patents of dubious merit in the hands of people who can use them to drag companies and other inventors to court...
ROI
Posted on September 15, 2008Beyond simple counting, number fumbling is a human constant. Wall Street floats on an ocean of dumb money. And bean counters, the pros that run the banks... Well, let's just observe that the deepest and longest lasting recessions/depressions in this country have been lit by what is quaintly referred to as a "bank panic...
Going Down the 112 Way
Posted on September 14, 2008Following up on his §101 ramble, USPTO policy maven John Love put out the hard word in a memo duet on §112: ¶2 indefiniteness for numeric imprecision, and for means claims, which nominally fall under ¶6....
Scarecrow
Posted on September 12, 2008Duratech Industries jumped the gun and got North Dakota district court to grant non-infringement declaratory judgment protection from 6,375,104, owned by Bridgeview Manufacturing. '104 claims a hay bale handler. But Duratech put up a straw man for claim construction, construing a means-plus-function limitation that wasn't...
On Display
Posted on September 11, 2008Medical Solutions (MSI) sued C Change Surgical (CCS) for patent infringement "because CCS both "used" and "offered to sell" the allegedly infringing product at [a] trade show." MSI had sued CCS in D.C., where the trade show was. But neither company is based there...
Refusal To License
Posted on September 10, 2008The Justice Department just issued a report: "Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act." One issue discussed was whether refusal to license patents was ipso facto monopolistic action. In a broader context - The general right of a firm freely to determine with whom it will and will not deal was first established by the Supreme Court nearly nine decades ago...
Written Description Bug
Posted on September 09, 20085,126,270 and continuation 6,017,745, claim turning bacteria into enzyme factories. Patent owner Carnegie Mellon University sued Roche for infringement. Roche got a claim construction that led to summary judgment of non-infringement, and invalidity for "lack of written description in light of...
Educational Savvy
Posted on September 09, 2008From a public-interest standpoint, the blessing of blogging has been to demonstrate how the mainstream press is filled with hacks on assignment. While bloggers live and breathe their subject matter, "professional" media do topical cameos, resulting in nicely wrapped provocative stories, at a slanted angle, but with a garnish from "the other side" for the illusion of a "fair and balanced" perspective...
Growing Green
Posted on September 09, 2008Eco-Patent Commons, a portfolio of environmentally-friendly patents pledged to the public domain, originally announced in January, grew greener yesterday, with the addition of patents from Xerox, DuPont and Bosch, more than doubling the number of enviro-pats now freely available...
Just Walk Away PA
Posted on September 06, 2008PA Advisors got its hands on 6,199,067, saddled up the palomino, and rode on down to East Texas, aiming to get a little from Microsoft subsidiaries, Google, Yahoo!, Facebook, and others. After chatting with Facebook, PA took a powder, deciding not to pursue the suit further...
Old Art Never Dies
Posted on September 05, 2008A common patent litigation strategy has been to seek reexamination after losing in court, as in the case herein. Defendant counsel has more rhetorical power before the court, as contrasted to a single injection to the PTO for reexam, after which the patentee tries to hold granted ground while an infringer watches from the sidelines...
Kneed
Posted on September 03, 2008Orthopedic implant makers Howmedica Osteonics and Wright Medical got into a patent brawl. They settled. A few times. Sort of. Howmedica sued again over 5,824,100, claiming a knee prosthesis, and lost its infringement kick on claim construction, which it appealed...
Fire Eater
Posted on September 03, 2008Patents become a public nuisance when worth a pretty penny. Hal Wegner thinks the price tag of infringement should have flamed the NTP patent reexaminations. "With a $600 million plus settlement in one litigation coupled with ongoing litigations against other alleged infringers, BlackBerryGate represents a billion dollar...
Down with the Docket
Posted on September 02, 2008With its natural panache of rip and snort for the court, the Statistics Division for the Administrative Office of U.S. Courts released its annual report: "Judicial Business of the United States Courts." Using the hoary Roma system, the latest stats run in a calendar year skewed to September 2007...
Phoning It In
Posted on August 31, 2008800 Adept successfully sued Targus for two patents routing 800 number calls to a local service location. A 24-day jury trial spat a $18 million patent infringement award, attorneys fees for it being an exceptional case, permanent injunction, and Targus "liable under state law for tortious interference with Adept's business relationships," worth $7 million...
101 Love
Posted on August 30, 2008USPTO Deputy Commissioner for Patent Examination Policy John J. Love took it upon himself to interpret 35 U.S.C. §101 for software method claims. Months ago in an internal memo to examiners, Love encouraged 101 rejections for method claims that merely recite computer usage in the preamble...
Heated Argument
Posted on August 28, 2008Lexion Medical sued Northgate for infringing 5,411,474 and 6,068,609, which claim techniques for heating a patient's gut in preparation for laparoscopic surgery. '609 was stomped by Obzilla JMOL, while '474 eked out $721,662 in jury-awarded damages. On appeal, an overturned claim construction vacated the award, but Obzilla remained triumphant...
Cheese
Posted on August 28, 2008Microsoft and Nikon have consummated a photo finish to a patent cross-licensing agreement, though the picture is fuzzy. Details went undisclosed, other than indicating that Microsoft is being compensated by Nikon for its gorilla hug. Since Microsoft started banging its patent drum at the end of 2003, it has wrestled over 500 licensing agreements...
High Stakes High Definition
Posted on August 27, 2008Orinda has filed against Sony for its Blu-ray high-definition DVD players. 5,438,560 claims basic optical disk recording, accounting for bad disk sectors. Complaint filed in the Eastern District of Texas....
Pulp Business
Posted on August 27, 2008In 2002, Immersion sued Microsoft & Sony for patent infringement. In 2003, Microsoft settled, with Microsoft paying Immersion $26 million. In a secret codicil, Immersion was to pay a kickback to Microsoft from the proceeds of successfully suing Sony for the same infringement...
Unsettling
Posted on August 26, 2008The application of statistics is relatively simple. Statistics is taught at college for many fields. But properly applying statistics seems to elude many. A recent patent reexamination analysis by lawyers is exemplary: a small sample size of biased data, rendering it rather meaningless...
Prove It
Posted on August 25, 2008In a touchstone ruling, Star Scientific v. R.J. Reynolds, the CAFC resets the high bar for inequitable conduct: The burden of proving inequitable conduct lies with the accused infringer. The patentee need not offer any good faith explanation unless the accused infringer first carried his burden to prove a threshold level of intent to deceive by clear and convincing evidence...
By the Book
Posted on August 24, 2008Responding to definitions of terms in a reexamination Examiner's Answer, an Appellant filed a reply that included dictionary definitions, to rebut the examiner's construction. The reply brief was refused entry, on the ground that the dictionary definitions constituted "new evidence...
Pulp Non-Fiction
Posted on August 24, 2008Any competent statistician will tell you that sample size is telling. So why do Andrew S. Baluch and Stephen B. Maebius just look at the first 30 of 308 inter partes reexaminations since late 1999, when the practice began? From the smattering, the two Foley & Lardner attorneys find reexamed claims downed a whopping 73% of the time...
The Power of Arsy
Posted on August 24, 2008Patent Examiners have been getting a bad rap in the patent blogosphere. Insults attacking their competence, work ethic, intelligence, moral character, and English skills are flung. In moments of weakness, this author has occasionally chimed in. But examiner incompetence should not be so easily disparaged...
Pennies Saved, Patent Lost
Posted on August 23, 20085,883,964 and 6,035,027 patented computerized phone callback, a scheme for lower international phone bills, because foreigners want a pretty peso for a phone call. Enforcing the patents was spent because the patentee sold out before patenting....
Shoe Shoo
Posted on August 22, 2008DSW sued Shoe Pavilion for infringing 6,948,622 and D495,172, claiming a shoe display rack. Shoe Pavilion responded by removing the offending racks. The district court booted the case. The CAFC booted the district court, for importing a limitation into claims unjustifiably, and not properly awarding damages...
Incurable
Posted on August 21, 2008Leggett & Platt sued VUTEk for infringing 6,755,518, which claims inkjet printing, in particular, cold curing of the ink to affix it. '518 was baked in the oven of invalidity. One heat source was prior art, namely prior VUTEk patents. No scorched-earth prior art search needed...
Dead Cash Cow Still Milks
Posted on August 20, 2008Astrazeneca sued Apotex and Impax for infringing patents of "pharmaceutical preparations containing omeprazole, the active ingredient in Prilosec." Filing ANDAs prompted the patent assertion. The patents expired, but that didn't moot the suit...
The Marshall Plan
Posted on August 20, 2008Crucial reading for those interested in the notable docket of rocket, the Eastern District of Texas, in this week's Texas Lawyer. With 232 patent cases filed in Marshall in the past year, trial dates for filing there are now running to 2012. Judge T. John Ward's patent litigation mill is slowing, but faring...
Dealing with KSR Chat
Posted on August 20, 2008K&L Gates is hosting a webinar on "Strategies for Dealing with Obviousness Rejections by the PTO in the Aftermath of KSR." If you haven't gotten enough tips on playing cards with Obzilla from the Patent Prospector, sign up....
MPEP E8r7
Posted on August 20, 2008PDFs of Revision 7 of the Eight Edition of MPEP are now available. These are July 2008 changes from the September 2007 r6. The HTML version, this prosecutor's preference, is pending. Wish they provided a specific change list....
Vacuum Suction
Posted on August 19, 2008Hal Wegner cited "an informed source" that John Doll is likely to be the Acting Director of the USPTO in 2009, upon the expected departure of political hack and pathetic sack Jon Dudas. "A nonstatutory arrangement between Commerce and the PTO makes the Commissioner for Patents the Acting Director in the absence of a superior political appointee...
Unoriginal
Posted on August 19, 2008In a shocking, unprecedented ruling, one branch of government stands up for another. Cooper Technologies had a continuation patent subjected to inter partes reexamination. Cooper carped that wasn't kosher, as the original (first) application was filed in 1993, and the law stated that "the inter partes reexamination procedure is available for "any patent that issues from an original application filed in the United States on or after" November 29, 1999...
Tool Groups
Posted on August 18, 2008Inventor Gary Odom, founder of Patent Hawk, has asserted 7,363,592 against Microsoft. '592 claims a feature of the tool groups used in the Office 2007 tool ribbon. '592 has a priority date of November 2000. Complaint filed in the Eastern District of Texas...
In the Aorta
Posted on August 18, 2008Dr. Jan K. Voda, M.D., sued Cordis for infringing two catheter patents: 5,445,625 & 6,083,213, getting a 7.5% royalty, and even enhanced damages and attorneys fees for willfulness. In light of eBay, Voda overreached for a permanent injunction. In a ruling replete with succinct case law infusions, appeal of most everything found the district court ruling in the right vein, except, most notably, willfulness in light of Seagate...
Googled
Posted on August 18, 2008GraphOn has sued Google in the Eastern District of Texas for infringing four patents related to network servers: 6,324,538; 6,850,940; 7,028,034; and 7,269,591. GraphOn has sued before with this portfolio, and wrestled a settlement recently out of hapless AutoTrader...
Religion
Posted on August 17, 2008An anonymous reader at Slashdot, the e-gathering place for philosophic technology sophisticates, worries: I am a developer for a medium-sized private technology company getting ready for an IPO. My manager woke up one morning and decided to patent some stuff I did recently...
Enlargement Stress
Posted on August 16, 2008Todd Brady came up with "a building construction assembly that allows a header in a wall some vertical freedom of movement relative to the studs, such that stresses applied to the assembly do not result in wall cracks. Such a configuration is useful when stresses vary in a wall, for example, through accumulation of snowfall or from an earthquake...
Patent Agent
Posted on August 15, 2008The USPTO has promulgated its final rule for CFR changes of authorized activities and sanctions for patent and trademark agents. The comments warn that being a patent agent does not cover activities, not necessary to prosecution, which would constitute practicing law...
The Scream
Posted on August 15, 2008Prasco got so paranoid about infringing patents from competitors Medicis Pharmaceutical and Imaginative Research Associates that it filed a declaratory judgment motion. The problem for Pasco was that Prasco wasn't even on the defendants' radar screens...
Obzilla Refined
Posted on August 14, 2008Whalen et al faced PTO patent board appeal on a chemical composition for embolizing an aneurysm. In a precedential opinion, the BPAI clarified the boundaries of inherency, and reinvigorated the seemingly orphaned stepchild of Queen KSR, grande dame TSM...
Blue Ray
Posted on August 13, 2008Acacia subsidiary Digital Security Systems likes the high-definition Blu-Ray DVD technology so much it wants a piece of the action. 6,052,780 claims copy protection which the patent holder considers incorporated into Blu-Ray players. Complaint filed in the Eastern District of Texas, seeking reasonable royalty...
Remedy
Posted on August 13, 2008With breathtaking alacrity for legislative enactment, President Bush signed into law revision of 35 U.S.C., the patent law, and the Trademark Act (of 1946), transferring authority of appointing administrative patent and trademark judges to the Secretary of Commerce...
Walk This Way
Posted on August 12, 2008According to NationalJournal.com, Senate Minority Whip Jon Kyl has his own vector for patent reform, divergent from the Leahy-Hatch cluster fun. Kyl reportedly spent months in meetings "with critics of the Leahy bill, including representatives from the pharmaceutical and life-sciences industries, small tech firms, and other companies whose business models depend on patent licenses...
Business as Usual
Posted on August 12, 2008The hoary adage "where there's smoke, there's fire" seems to apply. Law.com reported on USPTO favoritism for RIM and against NTP during their lawsuit, with apparent continuing punishment of NTP by malign neglect....
Greenhorn
Posted on August 11, 2008Young James McDonough displayed inexperience in an interview in the Wall Street Journal. McDonough blamed patent trolls for the USPTO tightening examination, when it was media coverage of carping by patent-infringing computer technology corporations that provoked a PTO political response...
Habitat
Posted on August 11, 2008In its Small Business section, The Wall Street Journal today used three anecdotes to survey the patent scene. The article "Caught in the Crossfire," stated "the clash:" "Big companies that pay for patent licenses and small companies that generate revenue by licensing patents are increasingly at odds...
Sensation
Posted on August 08, 2008Kazuhiro Okada, inventor of 6,512,364, assigned the patent to Saitama, Japan-based Wacoh last month. '364 claims methods for testing sensors. Wednesday, Wacoh filed a complaint in the Western District of Wisconsin against auto makers GM, Ford, Chrysler, BMW, Mercedes-Benz, Volkswagen, Honda, Mazda, and Suzuki...
Summary Misjudgment
Posted on August 07, 2008Uniloc sued Microsoft for infringing 5,490,216, claiming an anti-piracy software registration system. Microsoft's product activation system was accused. The district court judge granted summary judgment of non-infringement despite concession by Microsoft...
Just the Fax
Posted on August 07, 2008The USPTO "is proposing to revise the rules of practice to limit the types of correspondence that may be submitted to the Office by facsimile." The successful 1988 trial program is now deemed not so successful. The office recommends its web-based EFS (Electronic Filing System)...
Junket
Posted on August 06, 2008Considering that USPTO management spawns from Congressional aides, payback in the form of a junket to Copenhagen, Denmark should raise eyebrows only for its destination, not its blatant toadying. The Washington Post: "The purpose of the trip," Jefferson D...
Bag Lady, Technologist
Posted on August 06, 2008In 2006, IBM instituted a "worldwide policy, built on IBM's long-standing practices of high quality patents," disavowing "business methods without technical merit." 7,407,089, granted to IBM, issued yesterday, claims storing customer preference for paper or plastic bags...
Sprayed
Posted on August 05, 2008Proveris Scientific sued Innovasystems for infringing 6,785,400, claiming a device for evaluating drug delivery aerosol sprays. "As part of its defense, Innova invoked the safe harbor provision of the Hatch-Waxman Act." The district court had no safe harbor for Innova, finding infringement, no damages, but a permanent injunction...
2006 World Patent Review
Posted on August 04, 2008The World Intellectual Property Organization (WIPO) has published its 2008 statistical review. 2008 is the publication date. The statistics are for 2006. The highlights: a 4.9% rise in patent filings from 2005 to 2006, mostly in China, South Korea, and the U...
Hubris
Posted on August 04, 2008The USPTO has unveiled a new electronic "portrait gallery" "highlighting past and present individuals who have made a contribution to America's intellectual property (IP) system." Included are "digital electronic portraits of United States Presidents Thomas Jefferson and James Madison; famous inventor Thomas Edison; National Inventors Hall of Fame Inductees Helen Free, who developed home testing for diabetes, and Steve Wozniak, the inventor and co-founder of Apple Computer; and Under Secretary of Commerce for Intellectual Property and Director of the USPTO Jon Dudas...
Hypocrite Nation
Posted on August 03, 2008The United States has a foolish first-to-invent priority date system for U.S. applicants, but refuses to recognize the filing or invention date of foreign applications for the purposes of prior art, with the infinitesimal exception of the inscrutable 102(e)...
Injunkedtion
Posted on August 03, 2008Novo Nordisk sued Sanofi-Aventis for infringing 7,241,278. Novo then motioned for a preliminary injunction. Denied. Affirmed on appeal because Novo "failed to show a reasonable likelihood of success on the merits." Sanofi had "raised substantial questions," including whether claim construction would go Novo's way...
Tossed Salad
Posted on August 02, 2008Sollami sued Kennametal over three patents. Kennametal was granted a stay pending USPTO examination of a reissue application of one of the asserted patents. Sollami appealed. In a non-precedential decision, CAFC ruled that a stay is not appealable, unless it puts the patent owner "out of court...
Inequitable Conduct
Posted on August 02, 2008Proving inequitable conduct requires jumping "a high bar." There are two prongs to inequitable conduct: the materiality of omission (failing to disclose relevant information to the patent office), and intent to deceive. The Eisai CAFC ruling last week elucidated the current standard, with the contentious Aventis ruling in May shedding heat and light...
Not Mousing Around
Posted on August 01, 2008Microsoft asserting patents is as rare as hens teeth. But Wednesday Microsoft filed a complaint at the ITC against Primax Electronics of Taiwan, over seven mouse patents. One portfolio, dubbed "U2," is for connecting a mouse to either a USB or PS/2 port...
There Is No Arizona
Posted on August 01, 2008Whether Arizona has a functioning patent court remains an open question. Research Corporation Technologies (RCT) sued Microsoft for infringing its halftoning six-pack patent portfolio. After RCT won summary judgment of infringement, the case was transferred to a different judge, who reversed the ruling and granted Microsoft's motion of non-infringement, without opinion...
Nincompooped
Posted on July 29, 2008USPTO Deputy Director Margaret J.A. Peterlin is throwing in the towel, not a day too soon. From the PTO announcement: In addition to enhancing operational efficiencies, Deputy Under Secretary Peterlin strategically positioned the USPTO as a leader in such important policy debates as patent modernization legislation, in which the USPTO played a lead role in forming and communicating the Administration's position...
Not Untoward
Posted on July 26, 2008Rambus got patents covering computer memory standards, set by JEDEC, an industry group. Defendant chip makers Hynix, Samsung, Nanya and Micron went after Rambus for bad juju, in the Northern District of California. Defendants lost. Following a seven-and-a-half week consolidated trial on the jury issues set forth in the parties' Joint Pretrial Statement filed January 14, 2008, the jury returned a verdict in favor of Rambus and against the Manufacturers...
Silly Syllables
Posted on July 25, 2008The University of Texas (UT) can't be sued for patent infringement, but it's more than happy to sue. Fairness has little to do with patents, and even less with the power of the State. UT sued a slew of companies for infringing 4,674,112. It lost on claim construction, and so appealed, but with only silliness to back it up...
Inventorship Eruption
Posted on July 24, 2008In 2004, Magma Design Automation, an automated chip design company, sent a threatening letter to rival Synopsys about patent infringement. Synopsys responded with a declaratory judgment motion that two Magma patents were conceived while its inventor, now Magma chief scientist Lukas van Ginneken, was employed at Synopsys, hence the patents were rightfully Synopsys property...
Sweetness & Light
Posted on July 23, 2008Courtroom View Network has stopped licking its chops. The very day its $400 per day pay-per-view webcast of the Qualcomm-Nokia courtroom prizefight was to commence, they settle. Worldwide, no complaints now between these two. A 15-year agreement. Essentially, a comprehensive cross-license...
Illegal
Posted on July 23, 2008The USPTO posted a warning in the Federal Register about using foreign patent prosecution companies. Under 15 CFR 730-744, technology exports are subject to government approval by the Bureau of Industry and Security (BIS) at the Department of Commerce...
Pay Per View
Posted on July 22, 2008The Qualcomm - Nokia patent battle is like a heavyweight prize fight. So much so, the trial, which begins Wednesday, is being televised on pay-per-view for $400 a day by Courtroom View Network via webcast. Qualcomm sells cell phone chips, manufactured under license, but half its profits are from patent licensing fees...
Prove It
Posted on July 22, 2008In its battle to pry open Microsoft's wallet, Alcatel-Lucent has two parallel patent cases. Yesterday it filed an identical motion in both cases, seeking full production of all Microsoft's patent license agreements with third parties. Such agreements are almost always confidential, as a condition of settlement...
Tummy Ache
Posted on July 21, 2008Eisai sued Dr. Reddy's Labs and Teva for infringing 5,045,552 after the two filed ANDAs to make a generic version prior to patent expiration. '552 claims a digestive antacid. Eisai overcame obviousness and inequitable conduct arguments to prevail. In its affirmation, the CAFC elucidated the current standard for chemical obviousness...
Inventor Scam
Posted on July 20, 2008After an 11-year court battle, the FTC has squeezed, in settlement, a $10 million penalty from Davison for running a con on patent holders. The FTC claimed the company "enticed consumers with false claims about their selectivity in choosing products to promote, their track record in turning inventions into profitable products, and their relationships with manufacturers...
Wrap Up
Posted on July 18, 2008Monster Cable likes its packaging. Monster wrestled licenses from Systemax and its subsidiary Ultra Products for D471,442. Monster has other packaging infringement actions against Timex, and Bizlink and its subsidiary Accell. Monster favors the Eastern District of Texas for its enforcement actions...
Hiding Peas
Posted on July 18, 2008A recently published UPSTO Federal Register Notice regarding paperwork burdens for the proposed appeals rule change is oddly missing from all PTO lists of Federal Register Notices. The wafting scent is that this is something more than oversight, instead, a continuation of a two-year trend of failing to give sufficient notice of opportunity for public comment...
Try Triway
Posted on July 17, 2008The USPTO, EPO, and JPO are joining forces once again to combat pendency and quality issues. With all their powers combined, they are Triway, planetary patent force. The one-year Triway pilot will launch July 28th, and will accept up to 100 participating applications...
Tipsy Stipulation
Posted on July 16, 2008Dr. G. David Jang assigned 5,922,021 and 5,954,743 to Boston Scientific and SciMed Life Systems. The companies were supposed to pay royalties on products "covered by" (i.e., infringing) the patents. Jang sued because he thought he wasn't getting his share...
Slow
Posted on July 16, 2008Dr. Olivia N. Serdarevic claims she was an inventor in six patents for laser eye surgery, owned by VISX, a subsidiary of Advanced Medical Optics. Serdarevic contacted VISX in 1998, and got an appropriate response, but failed to follow through until 2006, when she sued...
Fattening Peer
Posted on July 16, 2008The USPTO is extending and expanding its Peer Review pilot program. While the original pilot was limited to "computer-related arts," the program is porking to eat business method applications too. 400 possible published applications will sweat it out under public grilling, up from the original 250...
America First
Posted on July 15, 2008"I have to tell you that the innovation and the technology and the entrepreneurship of the world still lies in the United States of America. Every technological advance we've made in the 21st century and throughout the 20th has come from the United States of America...
Sieg Hiel!
Posted on July 14, 2008Joseph Goebbels, Hitler's propagandist, must be smiling up from Hell at academics Bessen and Meurer, who concocted rubbish figures about the value of U.S. patents. Mainstream media hack Gordon Crovtiz has taken the numbers as gospel. "Empirical research" he calls them...
Unsold
Posted on July 14, 2008With case law changing like a fashion model working the runway, Thomson had time on its side in slipping the surly bonds of patent infringement. Muniauction asserted 6,161,099, claiming auctions using a web browser. Thomson lost a jury trial, found willfully infringed, faced $77 million in damages and an injunction...
Watchdog
Posted on July 13, 2008The FTC, this nation's competition watchdog, is anti-patent. Commissioner J. Thomas Rosch considers patents inherently anti-competitive. But mergers to create an illegal market-dominant company, well, that's a different topic, a matter of discretion. So the FTC okayed a merger between Flow and Omax, both Washington state companies, despite acknowledging that they "are each other's closest competitor in the highly concentrated U...
Not Invented Here
Posted on July 13, 200835 U.S.C. §102 - "A person shall be entitled to a patent unless - ... (f) he did not himself invent the subject matter sought to be patented..." §102(f) dates to the 1836 Patent Act, and U.S. case law predates statute. Does §102(f) mean what it says? - That a patent is invalid if not invented by a patent applicant...
Home Grown
Posted on July 11, 2008Vonage, the erstwhile VoIP patent pińata, now has one of its own: 7,386,111 "Method and apparatus for placing a long distance call based on a virtual phone number." Also this week, Vonage and Comcast announced a collaborative agreement to work on network congestion management related to VoIP...
Chipper
Posted on July 11, 2008Rambling Rambus is putting Nvidia on the litigation griddle for infringing 17 patents. Nvidia specializes in graphics processing chips. Rambus specializes in raking it in for patented semiconductor technologies. Founded in 1990 by two geeks, Rambus has been an nonstop patent litigator paradise, suing for licenses rather than the pesky process of making anything...
No Reverse Spin
Posted on July 09, 2008Apotex filed two ANDAs with the FDA to market generic formulations of eye inflammation treatment patented by Roche. Naturally, Roche sued, in two separate actions. The first case was decided in 2007, with Apotex infringing a valid patent. In the second case, more of the same bad news...
Dogging An Application
Posted on July 08, 2008While there is no formal channel for an external party to submit potentially invalidating prior art to the USPTO to derail a patent application, there are ways. But a bark that doesn't bite can bite back later....
Peer-to-Petering Out
Posted on July 08, 2008Peer-to-Patent declared itself a success in its First Anniversary Report. Self flattery had patent blogger praise piled on. The hoopla is not entirely unmerited. What a great concept: the patent community contributing back to the patent system, examination quality improving with an influx of peer-cited art, and pendency decreasing without the PTO lifting a finger...
Disappointed
Posted on July 08, 2008InterDigital is trying to hammer Samsung into licensing submission for five of its cell phone patents though the ITC. An ITC staff recommendation, just issued, recommended against granting injunctive relief. On that news, InterDigital shares shed 22.6% of their value, dropping $5...
Old & Improved
Posted on July 07, 2008Patent Prospector service was erratic on Sunday, as the blog was transferred to a faster server. Thanks for your patience....
Replay
Posted on July 07, 2008The CAFC heard oral arguments today in the jury-trial fantasy $1.5 billion award to Alcatel-Lucent from Microsoft for infringing two MP3 audio patents. The district court judge pitched the jury verdict, finding non-infringement on one, and lack of standing on the other...
Gulp
Posted on July 05, 2008Up-and-comer Platform Solutions, a computer mainframe startup backed by venture capital, including contributions from Intel and Microsoft, is folding its pup tent. Platform is owner of freshly minted 7,386,670: "Processing of self-modifying code in multi-address-space and multi-processor systems...
Silver Bullet
Posted on July 04, 2008Playing catch-up to Apple's QuickTime and Adobe Flash, Microsoft has been pushing Silverlight, its multimedia offering to let users watch video through their web browsers. Massachusetts-based Gotuit Media, a multimedia vendor, is having a go at Microsoft for infringing three patents, in the Northern District of California, which is usually considered defendant-friendly...
Pacing
Posted on July 03, 2008Paice successfully sued Toyota for infringing hybrid vehicle drive train patents. Toyota couldn't get the verdict overturned on appeal, and SCOTUS blew them off. Not having the sense to settle, Toyota now faces a new suit....
101 Clarification
Posted on July 02, 2008An interoffice memo on examining claims for § 101 compliance issued to the USPTO examiner corps in mid-May. Based on Supreme Court precedent and recent Federal Circuit decisions, the Office's guidance to examiners is that a § 101 process must (1) be tied to another statutory class (such as a particular apparatus) or (2) transform underlying subject matter (such as an article or materials) to a different state or thing...
Fishing Expedition
Posted on July 01, 2008France-based Gillet Outillage sued Taiwan competitor Fisher Tool in central California over 6,189,190, claiming automobile pliers. Gillet suffered a narrow claim construction, so dropped the suit. Fisher lashed out for malicious prosecution under California law, and antitrust...
Debauchery
Posted on June 30, 2008Hal Wegner displays astonishing senility in a disjointed and practically schizophrenic review of pulp fiction by academics Bessen and Meurer (B&M). Wegner: "The U.S. patent system is not working. It stands accused on all sides of stifling innovation instead of nurturing it...
Doubled Over
Posted on June 29, 2008Boehringer Ingelheim sued Barr and Mylan for infringing 4,886,812 after the two filed ANDAs seeking to market generic versions of Mirapex, used to treat Parkinson's disease. Delaware district court Judge Joseph J. Farnan Jr. penned a careful decision, invalidating the patent over nonstatutory double patenting...
In Patents We Trust
Posted on June 29, 2008The Allied Security Trust is an alliance of computer-based technology companies, aimed at buying patents to avoid having them asserted against them. The entrance fee is $250,000, plus about $5 million in escrow. Verizon, Google, Cisco, HP are reputed founding members...
Supplied
Posted on June 27, 2008i2 Technologies wrestled $83.3 million in a settlement from SAP for supply-chain software patents. The case was in forced mediation in the Eastern District of Texas. In the late 1990s, i2 had been a successful pioneer in the area as a software vendor, but had its lunch eaten by larger enterprise resource-planning and workflow software companies like SAP after the dot...
Incensed
Posted on June 27, 2008Fargo Electronics sued IRIS for infringing 5,755,519 and 6,152,625, which claim a ribbon type sensor for a printer. IRIS sells replacement ribbons compatible with Fargo printers. A couple of claims fell on the reasonable repair doctrine. Incompetent prosecution, resulting in indefinite claims, killed the rest of the assertion...
Bottled
Posted on June 25, 2008Industrial Dynamics (IDC) was found infringing 6,155,408 and 6,298,974, owned by Heuft Systemtechnik. The patents claim bottle handling and inspection for bottling plants. On appeal, IDC successfully challenged the claim construction....
In A Huff
Posted on June 24, 2008Southern California Judge Marilyn L. Huff, upholding a jury finding, ruled that Microsoft must pay Alcatel-Lucent $357.7 million for infringing 4,763,356, claiming a user interface for choosing a calendar date from a menu, used in Microsoft programs Outlook, Money, and Windows Mobile...
Smoke Signal
Posted on June 24, 2008Law professors John Duffy, Dennis Crouch, Mark Lemley, and others, filed an amici brief for certiorari before the Supreme Court, to toss the CAFC mistake In re Nuijten, which ruled that transient signals were not patentable subject matter under 35 U.S...
Tele-Cost
Posted on June 24, 2008In their June newsletter/sobfest, POPA reiterates concerns over proposed changes to the PTO telework program. The proposed changes would eliminate the one-hour-per-week in office requirement for examiners, but would require examiners to cover all costs when traveling to the PTO headquarters on an "as needed" basis...
Carded
Posted on June 23, 2008Realsource asserted 5,732,136, claiming a debit card transaction method, against several retailing chains, including Best Buy, Starbucks, Costco, Lowe's and others. Realsource might have had a real invention, but like so many, the prosecutor was sloppy with language, and did not bother disclosing possible alternate embodiments...
Sauce For The Goose
Posted on June 21, 2008Damien Geradin, Anne Layne-Farrar, and A. Jorge Padilla, in "Elves or Trolls? The Role of Non-Practicing Patent Owners in the Innovation Economy": Clearly, patents in the hands of non-practicing entities can increase competition, lower downstream prices, and enhance consumer choice...
Spread Spectrum
Posted on June 21, 2008Ottawa-based Wi-LAN, holding spread spectrum patents 5,282,222 and RE37,802, thinks it has a lock on wireless standards 802.11 and CDMA2000. Wi-LAN has over 25 companies under the gun, including Apple, Sony, HP, and Intel. Earlier this week Wi-LAN stuck it to a fellow Canadian company, everybody's favorite wireless patent pińata, Research in Motion (RIM), as well as Motorola and UTStarcom...
Examine This
Posted on June 20, 2008While Jon Dudas, head of the USPTO, blames idiot inventors with their bad ideas and pathetic prosecutors pushing punk paper as the cause of the pendency problem, head of the European Patent Office Alison Brimelow blames the European Patent Office. How refreshing...
Balled Out
Posted on June 20, 2008Wily guys Mork & Beaty of Scanner Technologies got semiconductor packaging inspection patents. I thought it was Mork and Mindy, but I was wrong again. In the patenting process, they got hot under the collar about a competitor's product, hastening prosecution with a "make special" petition...
Afloat
Posted on June 19, 2008A further bit of evidence that Wall Street floats on an ocean of dumb money flowed in earlier this week. Tessera has an enforcement campaign for semiconductor packaging patent 6,433,419. The patent, currently under reexamination, is invalid. Patent Hawk provided the ammunition...
Fully Blown
Posted on June 18, 2008Ole Nilssen, patent goofball extraordinaire, in rather massive assertion against Osram Sylvania, was found to have committed inequitable conduct in multiple ways, a ruling affirmed on appeal. In awarding attorney fees in this exceptional case, Nilssen's conduct went beyond inequitable conduct, to litigation misconduct, the trial court judge ruled...
Tip Off
Posted on June 18, 2008TIP Systems got 6,009,169 and 6,512,828 for a cordless prison telephone. TIP sued Phillips & Brooks and others for infringement, losing on claim construction, and subsequently infringement, both literally and under the doctrine of equivalents. Affirmed on appeal...
Thrashed
Posted on June 17, 2008Innovation Technologies sued Splash! Medical Devices for infringing 5,830,197, which claims a method for irrigating wounds. Innovation got cold feet and backed out, giving Splash a pass. Splash moved for attorneys fees and expenses, a $144,350 tab. Granted...
Oops
Posted on June 17, 2008Allied Signal, owner of 6,287,955, failed to pay its maintenance fee, abandoning the patent. Changing its mind after the fact, the lament was that the lapse was unintentional. In short, when this patent was not deemed to be profitable, a plurality of employees of the Assignee determined that this patent should be allowed to expire, and an intentional decision was made that the maintenance fee should not be submitted to the Office...
Fact & Fiction
Posted on June 17, 2008Democratic nominee for President Barack Obama: I'm going to make... judgments not based on some fierce ideological pre-disposition, but based on what makes sense. I'm a big believer in evidence. I'm a big believer in fact... We've got offices like the patent office that are outdated to take advantage of new discoveries here in the United States...
Answers, Of A Sort
Posted on June 16, 2008House Judiciary Subcommittee Chair Rep. Berman posed questions to the Jon Dudas patent cabal last month. Dudas dutifully replied....
One Forward, Two Back
Posted on June 16, 2008The US patent system is unraveling as the USPTO desperately clings to the telework thread as a last hope for reducing pendency. POPA reports that "management has proposed legislation which would allow the agency to permit employees to telework from anywhere in the United States"...
Bilskiwhacked?
Posted on June 16, 2008The USPTO has chimed in on the Bilski case on its internal website. The USPTO has done its best to follow the guidance in State Street and AT&T, which some believe state that any useful series of steps is patent-eligible. However, the USPTO does not believe that such a broad reading of those rulings is consistent with the Supreme Court's views on the eligibility of "process" patents, as set forth in Diamond v...
Impropriety
Posted on June 16, 2008Praise be to Kevin E. Noonan at Patent Docs for follow-through on the low-down of the apparent improprieties by the dastardly Dudas and the USPTO in the NTP v. RIM litigation and reexamination....
Investing in IP
Posted on June 16, 2008David S. Ruder, author of Strategies for Investing in Intellectual Property, with deep IP investment experience, ought to know his stuff. But he has written a peculiar book. His case-based approach is familiar to MBA wanna-be's, and often enjoyable, but it obscures some big points in the details...
The Snake
Posted on June 15, 2008Criticism of the USPTO has reached comical proportions, and the joke is on us: inventors and prosecutors. When there is a universal howl from the U.S. patent bar about the agency, while the PTO itself crows about a lurch down in allowance rate, and a federal court rules that the PTO acted illegally, you may think something afoot...
Obzilla Revisited
Posted on June 14, 2008The Patent Prospector plastered the Supreme Court for its inept KSR ruling regarding obviousness. For those wishing to visit old stomping grounds, Lewis & Clark Law School held an Obzillafest last October, though they were too stiff to call it that...
Nunchucked
Posted on June 14, 2008Traditional nunchucks, a martial arts weapon, are two sticks connected by a short chain or rope. Modern-day nunchucks act as videogame controls. LA-based Nyko makes a wireless nunchuck, and won an award for it at the 2008 Consumer Electronics Show in Viva Las Vegas...
Display Package
Posted on June 13, 2008Design patents seem like a little brother to utility patents, all form and no substance. But aesthetics spin money. Even the presentation of a product can help it jump off the shelf and make the cash register ring. So Monster Cable, which packs its cables into a tidy product display, understandably complained that Timex has copied its display package to retail kids' watches...
Through Its Hat
Posted on June 12, 2008Linux purveyor Red Hat found its open source a bit too loose, so it settled two patent infringement suits with DataTern. One of the suits was brought by FireStar, which later assigned 6,101,502 to DataTern. DataTern steered '502 and 5,937,402 into the black from Red Hat...
Wireless Pool
Posted on June 11, 2008Intel, Cisco, Alcatel-Lucent, Sprint Nextel, Samsung, and Clearwire are forming a patent pool to collectively license WiMAX wireless technology patents. The alliance plans to collect patents essential to WiMAX and license the pool to consumer electronics manufacturers...
Numptys
Posted on June 10, 2008Hal Wegner: Broadside criticism of individual examiners doing their daily tasks should be out of bound (sic) and, a fortiori, spineless, anonymous criticism of individual examiners by a practitioner either crosses an ethical or disciplinary line - or such a line should be sharply drawn to deal with such reprehensible conduct...
Compact Appeal
Posted on June 10, 2008Facing an onslaught of appeals because of abysmal examination, the USPTO has new rules to streamline the appeal process. Appeals in a single round. Gone: examiner response to an appeal brief, and the ability to raise new grounds of rejection in examiners' answers...
Enough
Posted on June 09, 2008In a lucrative win-win only for respective law firms representing nimrod HP and upstart Acer, HP, with more to lose, backed down. The two computer firms have settled their patent spat. Terms undisclosed. HP had asserted ten patents against Acer in East Texas in March 2007, as well as sprouting an ITC investigation...
Exhausted
Posted on June 09, 2008Justice Thomas, delivering the 9-0 opinion in Quanta v. LG Electronics: For over 150 years this Court has applied the doctrine of patent exhaustion to limit the patent rights that survive the initial authorized sale of a patented item. In this case, we decide whether patent exhaustion applies to the sale of components of a patented system that must be combined with additional components in order to practice the patented methods...
Cleaning Up
Posted on June 08, 2008Filthy earth monkeys have soiled the planet. Belatedly, checking their virtual diapers, remorse comes in the form of adopting so-called "clean" technologies. A whole new area of patent infringement blossoms....
Chorus
Posted on June 07, 2008Patent licensing company Rembrandt IP cut its teeth in 2004, buying a nine-patent portfolio from Paradyne for $1 million. Paradyne was an AT&T spinoff. Eight of those patents went to cable modems, one to digital TV. Rembrandt then started an enforcement campaign, suing Comcast, Time Warner, Cablevision, Charter Communications, and Cox Communications, as well as the TV channels ABC, CBS, NBC, and Fox...
Demo Derby
Posted on June 06, 2008Brian L. Evans let his oversized ego get in the way of a grab at the brass ring of patent payout. 4,398,735 claims a truck assembly for roller skates and skateboards. Evans was the inventor. Evans insisted in acting as his own attorney in convoluted litigation over a licensing agreement dispute with Roller Derby Skate, in violation of the "longstanding rule that corporations and other unincorporated associations must appear in court through an attorney...
Interview First
Posted on June 05, 2008The USPTO has a pilot program for select art units offering applicants the opportunity for an interview prior to first office action. Of course, a prosecutor could always voluntarily do the same. While pre-action interview may be "in the interest of compact prosecution," under the current USPTO regime, it is more a formula for vexation...
Reexamination
Posted on June 05, 2008It has become a common tactic for a patent infringement defendant to request a reexamination. Courts have no obligation to acknowledge such, but many will stay proceedings pending reexam outcome if it occurs early enough in the lawsuit. Courts also have no obligation to heed the results of a reexam...
Out to Sea
Posted on June 04, 2008Wall Street floats on an ocean of dumb money. Patent purveyor Ocean Tomo has patent-oriented stock indices, supposedly taking the heavy lifting out of picking patent-heavy stocks. Speculators, who may be hedge fund or large bank proprietary traders, or market research fabricators, collar patent lawyers for quick steps up on a steep learning curve...
Partially
Posted on June 04, 2008Brocar sued retailer Target and others for infringing 6,049,928, claiming a baby diaper changing station able to resist vandalism. It's kiddie kung fu thing. Not really. Anyway, claim construction resulted in noninfringement. On appeal, affirmed....
Monopoly
Posted on June 03, 2008To FTC Commissioner J. Thomas Rosch, patents are inherently anti-competitive. To what degree depends upon the situation. Rosch reserves special ire for patent holders of technology standards, but would limit damages for inventors to what it cost to obtain a patent...
Slow Boat Arrives
Posted on June 03, 2008After seven years of pretrial jockeying, Cornell University stuck HP with a $184 million tab, capping an eight-day jury trial in North New York, CAFC Judge Randall R. Rader slumming as presiding judge. Cornell succeeded with all five claims of the asserted patent...
Discovery
Posted on June 03, 2008Bancorp sued Metropolitan Life Insurance for infringing 5,926,792, claiming tracking the value of life insurance policies. Unsuccessfully in the first round, as the district court judge granted summary judgment of non-infringement, which failed on appeal, albeit on an affirmed claim construction, because of a "genuine issue of material fact...
Coin of the Realm
Posted on June 02, 2008The candy company Mars sucessfully sued Coinco for infringing 3,870,137 and 4,538,719, claiming ways to validate coins put in vending machines. Mars wanted damages on lost profits. After 15 years of enforcement action, those damages looked more like a lost cause...
Marked
Posted on June 01, 2008Thursday, Stanford University had three HIV-monitoring patents invalidated in summary judgment, letting Roche off the hook. Northern California Judge Marilyn Hall Patel ruled that the Stanford patents were obvious in light of a 1991 prior art article...
Under Pressure
Posted on June 01, 2008Paris-based Alcatel SA bought the technology rump of Ma Bell in late 2006 - Lucent Technologies. The firm has been hyperactive in asserting patents from the combined portfolio. With good reason. Market capitalization has halved since the merger. CEO Patricia Russo and Chair Serge Tchuruk are besieged by shareholders for lack of performance...
Patent Retriever
Posted on June 01, 2008Patent Retriever is a free pdf patent download site that piggybacks on Google. Because Google Patents takes too many mouse clicks, gosh darn. Patent Retriever is good for US, EU, and WIPO....
Defensive
Posted on May 31, 2008Earlier this week, a thick-waisted but thin-skinned Nathan Myhrvold, Intellectual Ventures CEO, ventured into incoherence, jockeying defensively when questioned by grizzled technology reviewer for the Wall Street Journal, Walt Mossberg: "Don't call me a patent troll," and "I'm not abusing the patent system...
Malicious
Posted on May 30, 2008The common approbation "junk patent" is typically stuck on "patent trolls," that is, inventors asserting their rights. Only rubes buy that. Companies regularly pitch junk at each other. Case in point: Dow Chemical, whose advertising tripe is "responsibility begins here," found guilty of malicious patent assertion...
Tarnished
Posted on May 30, 2008Landmark Screens had Thomas D. Kohler file a patent application in 2002 for an electronic billboard. Allegedly, after a restriction requirement, Kohler dropped claims and supposedly filed a divisional. But, according to Landmark, Kohler screwed up, lost continuity, thus losing the original priority date, making the parent and its own billboard prior art...
Reactor
Posted on May 29, 2008TubeMaster makes custom catalyst reactors. Cat Tech asserted 6,905,660. Tubemaster counterclaimed for declaratory judgment (DJ). The district court granted summary judgment of non-infringement based upon claim construction, including DJ on non-accused configurations...
Bow to Light
Posted on May 28, 2008Gertrude Neumark Rothschild developed a process necessary for making blue, green, violet and ultraviolet (high spectral) LEDs, used in many products, including flat-screen TVs, cell phone screens, computers, and traffic lights. All told, a market estimated at $7...
Another Piece
Posted on May 28, 2008Most junk patents are created by incompetent prosecutors, with an assist from incompetent examiners granting bad claims. Example in point - Arthur A. Collins got a couple of junk patents: 4,701,907 and continuation 4,797,589. '907 sunk by §112 ¶2, an unconstruable claim term...
Such As
Posted on May 27, 2008CAFC caprice is further confirmed in today's non-precedential Lawler v. Bradley. Bradley settled a patent infringement suit by Lawler by taking a license which was too complicated and unclear in its terms. 10% royalty on the actual selling price of infringed values...
Spudnik
Posted on May 26, 2008J.R. Simplot, French fry innovator, blew his porchlight Sunday, aged 99. Supplier of dehydrated potatoes to the U.S. military during World War II, post-war, Simplot pioneered frozen French fries. In 1967, a handshake deal with McDonald's founder Ray Kroc helped put Simplot on the path to becoming a billionaire...
Enhanced Execution
Posted on May 25, 2008After seven years of preliminaries, trial began last week. Cornell University, one of the eight Ivy League colleges, is suing Hewlett-Packard in Northern New York for infringing 4,807,115, claiming enhanced CPU execution. A judge experienced with patent cases flew in from Washington, D...
Politically Correct
Posted on May 24, 2008Each patent is an invention. Do you think the number of patents says something? Would knowing the top-patenting companies be a meaningful statistic? Of course not. Patents are nasty. If you strive to be a member in good standing of the Coalition of Patent Fairness (CPF), keep your business clean...
Whining
Posted on May 24, 2008Hal Wegner has his panties in a twist: Beyond the anonymous attack launched against the PTO by an "Institute for Progress", Professor Dennis Crouch in his highly reliable blog, Patently O, has now exposed a patent attorney or agent who has launched an anonymous website, "USPTOExaminers...
Puckered
Posted on May 23, 2008John Wong got 5,568,779 for TALtech, claiming a seam for wash-and-wear dress shirts that don't pucker when laundered. Wong didn't disclose all the prior art he knew of, including the prior art that was the inspiration for his invention. The district court found inequitable conduct...
Rattled
Posted on May 23, 2008Rattler Tools sued Bilco Tools and William Coyle for patent infringement, trade secret misappropriation and unfair competition. A Louisiana district court judge conducted a bench trial. Not even close. Rattler, rattled, appealed....
Self-Inflicted
Posted on May 23, 2008Tessera Technologies is crowing over its "battled-tested" (sic) victory in getting Micro Electronics to take a license under threat of ITC action. Micro Electronics didn't hire Patent Hawk, so was unable to squash Tessera's assertion. Those well-equipped with Patent Hawk ammunition are successfully fighting back...
Enablers
Posted on May 23, 2008There appears to be a rampant addiction to poor claims drafting, injecting claims with vague language, unnecessary legalese, and unbounded scope. This addiction spirals downward into a vat of confusion during prosecution, and eventually hits rock bottom during litigation as judges try desperately to resuscitate claim meaning...
Cleanup Crew
Posted on May 22, 2008Eastern Kentucky Senior Judge William O. Bertelsman needed some help with claim construction. His first stab was appealed and remanded, the CAFC unable to douse the conflagration owing to an undeveloped record. On second appeal, the CAFC again mops up and remands...
Late
Posted on May 21, 2008Golden Bridge Technology hammered Nokia and Lucent for infringing 6,574,267, claiming a mobile communication system. The district court granted invalidity in summary judgment. Golden Bridge appealed with freshly minted arguments, which the CAFC refused to consider, deeming them too little too late...
No Comprende el Postulado
Posted on May 20, 2008Squalls of claim construction confusion howl in the halls of patent courts. The problem originates with incompetent prosecutors fond of squirrely claim language, and inventors failing to appreciate that precise language is essential to breathing life into their inventions...
Careful Assertion
Posted on May 20, 2008Overreaching patent assertion can foil the whole venture, and foul the asserted patents in the process. Being circumspect about claim construction, infringement analysis, and prior art, can turn a problematic case into a winner....
Big Gorilla Cuts A Dud
Posted on May 20, 2008In an ongoing tussle in various venues, Microsoft had accused patent bad-boy Alcatel-Lucent before the ITC of infringing four patents claiming telephone/computer integration. In the first round, the ITC administrative law judge found one infringed. Today, the full commission peeled the last banana, finding non-infringement...
Punching the Clock
Posted on May 20, 2008Taiwanese memory maker Nanya Technology started a losing patent war against Fujitsu. Licensing talks over DDR SDRAM chip patents fell apart in 2005. Nanya then sued Fujitsu in this country's tropical patent hot spot - Guam, for antitrust, asserting three patents, and a declaratory judgment (DJ) motion over 15 Fujitsu patents...
Big Cheese
Posted on May 18, 2008St. Clair Intellectual Property Consultants thought it had a tiger by the tail - a tidy patent portfolio for digital camera photo storage. St. Clair started a shotgun enforcement campaign, including against Kodak. Kodak claimed it had acquired rights to the patents through agreement with the inventors' former employers, Mirage Systems...
Conflict and Cooperation
Posted on May 18, 2008Culture and law intersect at the personal level. Everybody lives in the two worlds simultaneously. But lawyers often behave as if there is no world but law. This was not a mistake made by the Founding Fathers of this nation. To be fair to us today, except for one day in September of 2001, we have not had much visceral experience with how conflicts between culture and law may result in violence...
Dispositive
Posted on May 16, 2008CAFC Chief Judge Paul R. Michel graphed a signifying, that petitioning appeal upon appeal don't amount to more than just jivin'. En banc and certiorari might as well be in a dead language as to anyone's chances of being granted....
Clotted
Posted on May 15, 2008Aventis owns 5,389,618 / RE 38,743, claiming a blood clotting drug. Amphastar and Teva filed FDA ANDAs, prompting suit by Aventis. Amphastar shot back with an affirmative defense of inequitable conduct - Aventis failed to disclose that relied-upon studies, done by a non-inventor, Dr...
Priority
Posted on May 14, 2008DuPont sued MacDermid Printing for infringing 6,773,859, claiming digital thermal printing. '859 was based on a provisional application. The USPTO mistakenly issued the patent without reference to the provisional. DuPont had that corrected. MacDermid brewed a tempest in a teapot over priority date, confusing the district court judge, who refused a motion to issue a preliminary injunction...
Squashed Mango
Posted on May 14, 20086,148,377 claims a network-based device-shared memory space. Mangosoft hoped '377 might be an express to payout from Oracle, but its only stop was local....
Another Nail
Posted on May 13, 2008Acumed successfully went after Stryker for infringing 5,472,444. After discovery, Strkyer started selling what Acumed would later, in a second complaint, accuse as further infringement. The district court dismissed the second suit as old news. Acumed appealed...
Useful
Posted on May 13, 2008The CAFC's sua sponte en banc rehearing of Bilski's claimed risk management process, so far denied as unpatentable subject matter, indicates the appeals court's desire to draw a "bright line test for determining whether a claimed invention embodies statutory subject matter," a "quest" that a BPAI judge in Bilski's case deemed "an exercise in futility...
In The Weeds
Posted on May 12, 2008Rep. Howard Berman, Chairman of the House subcommittee overseeing the USPTO, does his job in an April 29 letter to PTO Director Jon Dudas, demanding answers: did you sully the agency's reputation by consorting with RIM when it was under the gun from NTP, and you had NTP patents under reexamination?; why haven't you considered deferred examination?; explain inconsistencies in patent application projection for the future; document methodology in meeting application demand; why so pig-headedly clueless about examiner attrition?; justify managerial lurching in its various incarnations...
Multiples
Posted on May 12, 2008Malcolm Gladwell in The New Yorker idyllically fuses discovery with invention in his thematic presentation of a strawman: "In The Air: Who says big ideas are rare?" The ostensible topic is that discoveries and inventions are often made contemporaneously by multiple people...
Pitiable
Posted on May 11, 2008Professors James Bessen and Michael J. Meuer (BM), who should be thoroughly discredited for their tripe, appear to have duped many people who should know better. What they demonstrate to the discerning is how little patent emperors have no clothes....
Nadir
Posted on May 11, 2008The phrase "with all due respect" is common to arguments traversing claim rejection. But how much respect is due for utter breakdown of "examination on the merits"? This is not a rhetorical question....
Going Solo
Posted on May 11, 2008Last month, seven major telecommunications patent holders: Alcatel-Lucent, Ericsson, NEC, NextWave Wireless, Nokia, Nokia Siemens Networks and Sony Ericsson, agreed to limit patent licensing fees, so as to engender continuing evolution of 3G mobile technologies, and limit litigation...
Feathering the Nest for Inventors
Posted on May 11, 2008Sensible patent reform should focus on feathering the nest for inventors in the United States. There is nothing more important to our long-term prospects within the global economy....
Broken and Unbroken
Posted on May 10, 2008Referring to patents, the Economist thinks it "a pity" that a "rewrite" of "broken laws" is "back on the shelf." Wrong. The patent statutes are not what's broken, with one ghastly exception. It's the USPTO and the courts that are broken...
IP is not an Asset: Inventors were meant to be Free
Posted on May 10, 2008Earlier this week, Peter J. Wallison argued that conventions in fair value accounting may in part be the cause for the recent bubble markets. Specifically, Wallison pointed to the convention (implemented under FASB 157) that requires assets to be carried at "market" values, even when those assets are not being held for trading purposes...
Claim Stink
Posted on May 09, 2008Lucent sued Microsoft, Gateway, and Dell for infringing 5,649,131 and 4,701,954, claiming two very different technologies. '131 claims a communications protocol between a web server (host) and a terminal. '954 is for digitizing speech. Another claim construction tussle, again illustrating the awkward immaturity of claim construction case law, floundering on the bedrock of bad claim language, pitiable prosecution, and disingenuity by the patent owner...
Dead, For Now
Posted on May 09, 2008The Economist: "On May 5th the Senate removed the bipartisan Patent Reform Act from its calendar."...
Kiosk Mirage
Posted on May 08, 20086,105,007 is a bastard child. Its parent was for interfacing to a loan processing system, user interfaces requiring "varying degrees of human interaction." '007 was more Cylon, seeking "to capture a system that processed financial accounts 'without human intervention...
Out of Gear
Posted on May 08, 2008Solomon Technologies took Toyota to the ITC over 5,067,932, accusing the transaxles on Toyota's hybrid models. An ITC judge found no infringement, and the asserted claim not enabled. Solomon appealed....
Squealing
Posted on May 08, 2008It's official. Elvis Costello to the contrary, clown time is not over. The USPTO is appealing dénouement of illegality accorded its proposed examination rule changes....
What Adam Smith taught the Founding Fathers
Posted on May 08, 2008As evidenced by his lecture on discoveries and inventions, Abraham Lincoln had a deep understanding of the patent system. It is amazing how his lecture, which is now well over 150 years old, can seem so fresh today. He and Charlie Munger have inspired me to undertake a historical review of other important lessons of the imminent dead...
Toothless Vampire
Posted on May 06, 20084,579,530 "claims a method of fabricating porcelain veneers for teeth." Most of its teeth were pulled during reexamination, leaving only one independent claim. Owner PSN Illinois asserted '530 against Ivoclar Vivadent. The patent had no bite...
An Inconvenient Truth
Posted on May 06, 2008The New York Times gives pesky perfectionist professor John F. Duffy his 15 minutes of fame. Duffy had the temerity to finger the criminal gang commonly known as Congress for passing a law in 1999 letting the USPTO director appoint appeal board judges...
EPO Oppositions & Appeals
Posted on May 05, 2008From HLBBshaw: "After grant of a European patent, there is a nine-month window in which a person may file centrally at the EPO a notice of opposition to the patent, alleging that the patent was wrongly granted. Oppositions are relatively common because they represent an economically attractive way of removing an IP obstacle to a planned commercial activity over a substantial market place...
Righting Whitening
Posted on May 04, 2008Procter & Gamble sued Johnson & Johnson for patent infringement over Listerine Whitening ® Quick Dissolving Strips, marketed as superior to P&G's Crest Whitestrips ®, because they dissolve more quickly. You wouldn't want to have patience in whitening your teeth, because you need a smoke, or cup of coffee, or some other neurotransmitting tooth-staining jones you can't shuck off, you vain but weak-willed Pavlovian simian...
Finite Genus Killer
Posted on May 03, 2008Xerox filed a patent related to electrophotography. The examiner piled on §103(a) combos. Appeal before the BPAI, arguing against 'obvious to try.' The issue was whether a "claimed species is obvious over prior art which discloses a genus containing the species...
Appeal Brief Summary
Posted on May 02, 2008In the past few years, patent examiners increasingly nitpick, sticklers for the rules and beyond. Appeals are burgeoning, as are non-compliance notices for appeal briefs under MPEP 1205.03. A common area for complaint is the summary: either too little or too much...
Patent Prosecution Highway - Bridge Two
Posted on May 02, 2008After recent finalization of the Patent Prosecution Highway across the Pacific, construction will soon begin on a route spanning the Atlantic. The USPTO and EPO have announced a cooperative program to "leverage fast-track patent examination procedures already available in both offices to allow applicants to obtain corresponding patents faster and more efficiently", adding another bridge to the developing global patent prosecution highway network...
Stranded R&D
Posted on May 02, 2008In 1980, Congress passed the Bayh-Dole Act. Overnight with its passage, universities and government-funded R&D labs gained a comparative advantage in funding R&D. Universities and government labs have a cost advantage in that many had already spent tens of billions of dollars setting up research labs for non-commercial purposes, including teaching and curious exploration...
Garbage In
Posted on April 30, 2008Jon W. Dudas, USPTO numero uno: "We are getting more and more unpatentable ideas, worse and worse quality applications." Craven worm lying through his teeth, or imbecile trying to impress the rubes? You be the judge....
Every Patent Affects Two Different Markets
Posted on April 30, 2008There are two different markets relevant to every valuable patent. First, there is the market for the R&D work that results in the patent. Prices in this market are set by the opportunity costs for the time of scientists and engineers who are capable of theorizing about and experimenting with the technology...
Paying for Garbage
Posted on April 30, 2008The New York Times reports $4.3 million spent in the past 15 months lobbying at the wounded Patent Act. The anti-patent Coalition for Patent Fairness alone forked out $2.5 million, lining the pockets of Sen. Leahy & Sen. Hatch. Pro-patent rival Coalition for 21st Century Patent Reform spent $1...
To Naught
Posted on April 29, 2008Rambus, having participated in proceedings leading to the industry standard for dynamic memory chips, patented portions of it. As chronicled in the Patent Prospector, that bit of seeming unseemliness has not been altogether well received during Rambus' patent enforcement campaigns...
How Patent Reform is like a Sombrero
Posted on April 29, 2008With much of the intense pressure to put patent reform into law past, now is an opportune moment in time to step back and reflect on the bigger picture of patent law in the United States. What bigger picture is there to be seen? Our vision of the patent system, and of the need for its reform, can be understood better upon consideration of the sombrero...
Grinding
Posted on April 28, 2008Congress Daily reported last Thursday that "more than 20 high-tech and financial services industry executives, as well as corporate patent counsels," met "with Sen. Orrin Hatch, R-Utah... to discuss controversial components of a bill that would overhaul the U...
Nothing Doing
Posted on April 28, 2008CAFC Judge Linn wondered out loud last week about the quality of BPAI, the patent appeals board. Small wonder. Last year, John Duffy opined that a 35 U.S.C. §6, enacted in 1999, is unconstitutional under Article 2. The 1999 Act allowed the PTO Director to appoint BPAI judges, but Article 2 requires that such "inferior" officials be appointed, at the least, by a department head, which the PTO honcho is not...
Sleep Lite
Posted on April 28, 2008LiteCubes sued Canada-based GlowProducts for infringing 6,416,198, as well as copyright infringement. '198 claims a light that looks like an ice cube. After found infringing, GlowProducts filed a motion to dismiss for lack of subject matter jurisdiction...
21st Century Schizoid Everyman
Posted on April 26, 2008Sitrick v. Dreamworks stirred muddy water. Marc Brown of McDermott Will & Emery worries: "Without realizing it, a recent series of Federal Circuit decisions has established a standard for enablement that may arguably be higher than any patent can meet...
International IP Dictionary
Posted on April 26, 2008Research and Markets announced an international intellectual property law dictionary for ?266. Covers patents, copyright, and trademarks, both U.S. and international terms. For patents, has a "Short History of Patent Law in the United States," and "Charts on Sources of United States Domestic Patent Law...
Judicial Disappointment
Posted on April 25, 2008In an otherwise less than remarkable non-precedential decision by the CAFC, Circuit Judge Richard Linn took the opportunity in a concurring opinion to express "disappointment" and "concern" over the current state of the patent system, suggesting that "the circumstances that led up to this appeal may be more symptomatic of certain failures of the patent system than merely reflective of the peculiar facts of this case"...
Lincoln's Famous Words
Posted on April 24, 2008On February 11, 1859, Abraham Lincoln gave a lecture to the inhabitants of Jacksonville, Illinois on the topic of discoveries and inventions. His most famous words from this lecture are the last few that were recorded:"Next came the Patent laws...
Objectively Baseless
Posted on April 24, 2008Dominant Semiconductors, being found to infringe a number of LED patents owned by OSRAM GmbH, filed suit against OSRAM alleging unfair competition, intentional interference with contractual relations, interference with prospective economic advantage, and trade libel arising from OSRAM's communication to customers regarding Dominant's possible infringement...
Three Strikes
Posted on April 23, 2008Bayer Bioscience appealed to the CAFC in a third round of the battle against Monsanto, pleading for the reversal of the district court decision granting attorney fees to Monsanto under 35 U.S.C. § 285, warranted due to Bayer's exceptional inequitable conduct...
Antecedent Basis
Posted on April 22, 2008They killed the bunny patent. It's enough to make you cling to your guns and religion. Energizer tried to zap Chinese battery makers using the ITC, but the ITC pulled the plug. Twice. On appeal, a non-precedential decision, owing to all-around discord in the panel...
Facile Treatment
Posted on April 21, 2008Here we go again. "There should be greater penalties in respect of patent holders who make unjustified threats of legal proceedings. "Patent trolls" should not be allowed to flourish and to hold public and private investors in research and development to ransom...
A New Kind of Patent Boutique?
Posted on April 20, 2008The state of the legal profession is in flux. The exogenous forces of globalization and technology are straining and breaking the traditional business frameworks for the provision of legal services. How might the future look?...
Avoiding Consistency Traps
Posted on April 20, 2008"A foolish consistency is the hobgoblin of little minds." -Ralph Waldo Emerson At Patent Prospector, we're not shy about speaking out when we see academics, business people, or government officials doing silly things. Because of that, it's really a pleasure to be able to give kudos to the same people when praise is deserved...
Beaming Down
Posted on April 20, 2008Finisar sued DirecTV in East Texas for infringing 5,404,505, garnering from a jury a $78.9 million reasonable royalty damages award for willful infringement. The district court tacked on $25 million while denying injunctive relief. On appeal, a claim construction error vacated the verdict, as well as raising from the grave potentially invalidating prior art...
Made in China
Posted on April 19, 2008China's free-for-all in intellectual property is becoming past tense. The number of patents and patent lawsuits has doubled in the past five years. Over 850,000 Chinese patents are now active. The big winners are Chinese patent lawyers....
Unforseeable
Posted on April 18, 2008Honeywell sued Hamilton Sundstrand over 4,380,893 and 4,428,194. One of asserted claims had been an unamended dependent rewritten into independent form, triggering presumption of prosecution estoppel, though why that should be is the locus of dispute...
Abandoning His Post
Posted on April 18, 2008John Whealan, former solicitor of the USPTO, has been soliciting PTO-favorable legislation for the past year, "assisting" Sen. Leahy in bungling patent reform. In a signal of defeat for the bill, S. 1145, Whealan, who has been on leave from the PTO, is abandoning his temporary post with the Senate May 1...
Tilt
Posted on April 18, 2008Peter Detkin of Intellectual Ventures, at an IP Symposium in San Jose this week: "Small inventors, defined as those entities that have less than 500 employees, are responsible for 60% of US patents, while the remaining 40% are granted to large companies...
Lazy Man Insults His Customers
Posted on April 17, 2008The USPTO is storing up trouble. PTO honcho Jon Dudas said Wednesday that patent applications are "skyrocketing," but quality is suffering "as corporations and individuals increasingly seek to turn intellectual property into a legal asset rather than a means to technology innovation...
Hospital TV
Posted on April 17, 2008Zenith has a couple patents (5,495,301; 5,502,513) for TV remote controls for hospital room use. Zenith sued PDI for infringement. PDI won a summary judgment of prior art invalidity on claim 1 of '301, and non-infringement on both patents. Zenith appealed...
Bank Holdup
Posted on April 17, 2008Wells Fargo inked a software license agreement with WMR in December 2003. In 2004, a patent license agreement (PLA) followed. In early February 2006, WMR sold four patents to DataTreasury: 5,265,007; 5,583,759; 5,717,868; and 5,930,778, patents encompassing what would become federally-mandated digital check processing under the law known as Check 21...
Sauce for the Goose
Posted on April 16, 2008The USPTO electronic filing system (EFS) requires that all submitted pdf documents have embedded fonts. EFS provides acknowledgment receipts for all EFS customer submissions. The receipts are not compliant with EFS standards, as they don't have the requisite Arial font embedded...
Ravenous Hordes
Posted on April 16, 2008The USPTO is hosting a webcast on Wednesday, April 30, 2008, at 3:00 p.m. ET "to discuss recent disruptions in the availability of Public PAIR" owing to "service disruptions caused by bulk downloading of data by the public, commonly referred to as 'data mining...
First Action Interview Pilot
Posted on April 15, 2008The USPTO is launching a new pilot program granting examiner interviews prior to a first office action on the merits. The PTO claims the program will "reduce pendency and improve patent quality" by "enhancing information exchange between applicant and examiner and promoting early resolution of outstanding issues"...
Complex Work Unit Pilot
Posted on April 15, 2008The USPTO has a new pilot program, guaranteed to become standard practice, to facilitate electronic document submission for what it calls "complex work units:" chemical structure drawings, mathematical formulae, three-dimensional protein crystalline structure data, and table data...
i-©®eaTM
Posted on April 14, 2008The above title reads like junk email in a foreign language that your computer can't decipher. How appropriate, because that's the name of the USPTO's new curriculum to teach rug rats about intellectual property. i-©®eaTM educates educators to educate "tweens" (ages 8-11) "to be creative and invent...
Dropped Dish
Posted on April 14, 2008The CAFC brushed off an en banc appeal rehearing request from Dish Network for a $74 million award to TiVo for patent infringement, as well as a permanent injunction. Dish had also gone the reexam route, but that only bullet-proofed the patent (6,233,389)...
Color Within the Guidelines
Posted on April 14, 2008The USPTO recently published updated Written Description Training Materials, as a revision to training materials from 1999, to reflect changes in case law and technology....
CIP Junk
Posted on April 14, 2008PowerOasis had a dysfunctional family of patents, notably 6,466,658 and 6,721,400. The patents claim telecommunications access via a vending machine. PowerOasis went after T-Mobile, who successfully broke the family lineage, that these CIP children weren't entitled to their parent's birth date...
Platinum Patents
Posted on April 13, 2008Patent Hawk is delighted to announce Platinum Patents, the prosecution branch of Patent Hawk. The same folk who have been wreaking havoc on patents for years for litigation defense, facilitating monetizing patents for patent holders, and providing patent intelligence to gain an unfair competitive edge, now offer prosecution services for inventors...
Dulling the Edge
Posted on April 13, 2008The International Federation of Professional & Technical Engineers, damning S. 1145: It would threaten our nation's competitive edge in a number of significant ways - including allowing foreign based companies to challenge the U.S. patents of American manufacturers...
Pipeline Stage
Posted on April 02, 2008MEC sued Texas Instruments and Intel for infringing 5,471,593, losing on summary judgment, for invalidity owing to terminally sloppy claims drafting (indefiniteness), and noninfringement. On appeal, the claims slop was sifted to definiteness, but, because the district court had properly construed "pipeline stage" as temporal, rather than positional, noninfringement was affirmed...
And = Or
Posted on April 01, 2008Mylan tripped the ANDA wire, triggering a lawsuit from Ortho-McNeil for infringing 4,513,006, covering topiramate, an accidentally discovered anticonvulsant. Mylan got a migraine over a claim construction that defined "and" as "or." In a rare fruitless incantation, Mylan invoked the sacred patent killer Obzilla, who was scared off this episode by a rare sighting of hindsight reasoning...
Time for a Change
Posted on April 01, 2008I read it on the World Wide Web; it must be true. The patent system is broke. Patents are being bought by fake companies who are not even doing what the patent is for. Then, these fakes, make what they call shell companies, like seashells, nobody home, with no real business but patent monkey business, sue companies that make the products we all love...
Zune Rocks
Posted on April 01, 2008Non-patent entry; pardon my enthusiasm. Zune, the late-entry portable music player from Microsoft, is wonderful. Apple's iTunes software is aggravatingly slow, and has a clunky interface compared to Zune. iPod device controls, particularly volume, are a touch difficult while on the run (literally)...
Media "Briefing"
Posted on April 01, 2008The Coalition for Patent Fairness hosted a media briefing conference call this morning to discuss the Patent Reform Act (S.1145), and its place on the agenda of Congress, which reconvenes next week. The briefing was brief in content, but not duration...
Thwarted
Posted on April 01, 2008Judge James C. Cacheris in the Eastern District of Virginia, on killing the examination limits railroaded into existence by the USPTO: Because the USPTO's rulemaking authority under 35 U.S.C. § 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as "otherwise not in accordance with law" and "in excess of statutory jurisdiction [and] authority...
Anti Trust
Posted on March 31, 2008The American Antitrust Institute (aai) is a lobbyist corporation backed by undisclosed lucre, doubtlessly large corporations. Their spiritual mentor is Teddy Roosevelt: rough rider, trust buster, who once observed: "Every reform movement has a lunatic fringe...
Commissioner Cack
Posted on March 31, 2008In an interview with C/Net News, USPTO Commissioner Jon Dudas: What's, in lots of ways, more disturbing is in over half the cases where we say this isn't patentable, people just file again and get back in line. We want to make certain that people can't apply with a very broad patent application, which they know will get rejected...
An Algorithm Shy
Posted on March 30, 2008Australia-based Aristocrat threw away money getting gaming machine patent 6,093,102, and then threw away money trying to enforce it. Means-plus-function with no unction. From the CAFC, a crash course in means-plus-function claims for computers: the claimed function is bounded by the specifically disclosed algorithm...
Mixed Claim Types
Posted on March 29, 2008Both the USPTO and the courts proscribe claims mixing statutory claim classes as both unpatentable subject matter under §101 and indefinite under §112 ¶2. But, as is often the case with claim construction, the line may seem fuzzy. Herein a guide....
Rogue Blogger
Posted on March 29, 2008BeavisWeek has a well written story by Michael Orey, Busting a Rogue Blogger, about a dross patent blogger who pulled the wool for a while. "Cisco General Counsel Mark Chandler even cited the blog as a good independent source of information while in Washington lobbying for changes to patent law that would rein in trolls, unaware he was plugging the work of a Cisco employee...
Greenhorn Parade
Posted on March 29, 2008Every competent manager knows, if you have a morale problem with the troops, step one is simple: ask the troops. Instead, Margaret Peterlin, Deputy Doodah for the USPTO, is tickled pink to ask the kids in a local bidness skool what they think....
Sound Invention
Posted on March 28, 2008Thomas Edison has been credited with inventing sound reproduction, duly granted U.S. patent 200,521 on an 1877 filing. Newly revived is the work of "Édouard-Léon Scott de Martinville, a Parisian typesetter and tinkerer who went to his grave convinced that credit for his breakthroughs had been improperly bestowed on Edison...
Bum Trip
Posted on March 28, 2008In an apparent non-sequitur, Avistar Communications is blaming Microsoft for its woes in having to slash its workforce by 25%. Avistar had hoped to license its patent portfolio to Microsoft. Ever the jester, Microsoft's response was to hoist a USPTO reexamination petard on all 29 of Avistar's patents...
Reverse Gear
Posted on March 28, 2008After getting the hard word from a Congressman, the ITC has reversed an administrative judge's stay in pursuing Tessera's claims of infringement against Motorola, Freescale Semiconductor, Qualcomm and other DRAM suppliers....
Rats
Posted on March 28, 2008Agrizap's 5,949,636 claims an electrocution rat killer. As CAFC Judge Moore rhapsodized: When the hapless pest makes contact with a high voltage electrode and a reference electrode, its body creates a leakage current that completes an electric circuit and triggers a generator...
She Lit a Candle and Showed Me the Way
Posted on March 27, 2008Patent examiners act as gatekeepers between inventors and the pearly entrance to patent glory. With the patent office hell-bent on rejection, achieving salvation can come down to knowing thy gatekeeper. Enter USPTO Examiners, a spanking new website, offering deliverance while boasting "We Examine the Examiners...
Busybody
Posted on March 27, 2008Mother hen AIPLA is clucking over the Eastern District of Texas. 28 U.S.C. §1391, the venue statute, grants broad latitude: any venue where a "defendant is subject to personal jurisdiction at the time the action is commenced." Not good enough for AIPLA...
Killing the Crap Shoot
Posted on March 26, 2008Over a third of patent cases are reversed and remanded on appeal. Faulty claim construction is the reason half the time. As it is, district court trial resembles a $3-$5 million roll of the dice. Hal Wegner's prescription: "One of the single most important reforms of the patent system is a direction from the legislature that all patent cases should be handled by a pool of patent-experienced trial judges...
Rambus Rambles
Posted on March 26, 2008Memory chip patent holder Rambus saw its stock soar 39% on news that a San Jose jury dismissed charges from competitors Hynix, Micron, and Nanya, that Rambus rigged the playing field by getting patents on the SDRAM memory standard. This is a turnaround from a 2001 jury verdict validating a fraud charge from Infineon, and a 2006 FTC ruling of deception, now on appeal...
Clown Time Is Over
Posted on March 25, 2008The wrinkle with Frenkel got the heave-ho, snuffing the anonymous blogging disco at Cisco. "A few Cisco employees used poor judgment... We believe we have learned a valuable lesson from this regrettable situation." Zorro don't live here no more...
On Behalf
Posted on March 25, 2008Connecticut Congressman Christopher Shays wrote the Chairman of the ITC last week, carping about the ITC sitting on its thumbs during a PTO reexam while Tessera's patents wither on the vine. Administrative Law Judge Essex entered an order staying the action at the request of the defendants...
Protecting IP in China
Posted on March 25, 2008The USPTO is offering a two-day seminar on protecting intellectual property in China. The program is free and will take place April 2-3 in Houston, TX. So, throw your Chi-pod in your Louis Vuitton knock-off and skip down to the Lone Star State....
Dim Lantern
Posted on March 24, 2008AG Design sued Trainman Lantern for infringing 7,118,245. The west Wisconsin district court judge granted a preliminary injunction on the likelihood of infringement under doctrine of equivalents (DOE), the accused device missing a claimed feature of multiple plug-in ports...
Skewering Rubes
Posted on March 24, 2008The trolls of patent policy are academics. Over-credentialed chowderheads. Charts and graphs depicting meaningless statistics, the meaning sucked out by being out of proper context. Jumping to conclusions like frogs on hot sand, all the while paying lip service to the complexity of reality...
Amateur Hour
Posted on March 23, 2008WikiPatents and the USPTO-condoned Peer to Patent projects are attempts at solutions looking for a problem. The implicit conjecture is that patent examiners are limited in their search capabilities, and a helping hand is just what they need. Nothing could be further from the truth...
Praise the Dudas
Posted on March 22, 2008Jeff Wold of IAM Magazine praises Jon Dudas for bringing home the bacon: "What the Patent Prospector and other Dudas critics fail to acknowledge is that fee diversion has ended on his watch." Wrong attribution....
Undocked
Posted on March 21, 2008Computer Docking Station Corp. (CDSC) took Dell, Gateway, and Toshiba to dock for infringing 5,187,645, but bombed out: summary judgment of noninfringement, upheld on appeal. Prosecution estoppel was the death knell: "the patentee disavowed an interpretation of "portable computer" that would encompass a computer with a built-in display or keyboard...
Willfully
Posted on March 20, 2008Australian patent-holding company QPSX Developments 5 sued Nortel, Juniper Networks, Lucent, Cisco and Alcatel in June 2005 for infringing 5,689,499, in the east Texas. All settled but Nortel. Nortel lost....
Old & Inexperienced
Posted on March 20, 2008Marketing Displays Inc. (MDI) has numerous patents on promotional signage, including "menuboards," "used in the fast food restaurant industry to depict a restaurant's menu items and prices." Competitor LSI filed a declaratory judgment action in Eastern Kentucky for noninfringement and invalidity...
Don't Feel So Restricted
Posted on March 20, 2008From MPEP 802.02: Restriction practice is designed to require applicants to "elect a single claimed invention (e.g., a combination or subcombination invention, a product or process invention, a species within a genus) for examination when two or more independent inventions and/or two or more distinct inventions are claimed in an application...
For the Corporations
Posted on March 20, 2008Michael Meurer, interviewed in Forbes, equated the worth of the patent system to its value to corporations: For most firms, the headache of a patent lawsuit is greater than the benefit of the patents they get and can use against other people... The patent system can't work unless it provides an incentive to innovators...
Hedgerow
Posted on March 19, 2008Hedge fund Riley Investment Management has gotten uppity about Transmeta giving a $10 million bonus to John O'Hara Horsley, Transmeta general counsel. Calling the bonus "outrageous, illegal and unconscionable," Riley filed a lawsuit accusing Horsely, Transmeta executives, and board members, of gross mismanagement, breach of fiduciary duty, waste of corporate assets, and abuse of control...
Fully Funded Again
Posted on March 19, 2008The Senate last week, by unanimous approval, slipped into its 2009 budget an amendment to condemn diverting funds from the USPTO. The Senate version of the budget is sliced and diced in April, but PTO funds won't be on the plate. That means the USPTO 2009 budget will exceed two billion dollars...
Beware
Posted on March 19, 2008Mr. Shun-Kuo Su of Taiwan gives an across-the-puddle perspective in Forbes of U.S. patent deform in the making: [T]he bill would eliminate patent-holders' protection against frivolous lawsuits... These and other changes in the proposed legislation would cause inventors' costs to skyrocket...
Safe Harbor
Posted on March 19, 2008Amgen complained to the ITC about Roche importing a particular hormone as an infringement of Amgen process and product patent claims. Roche got off the hook using 35 U.S.C. §271(e)(1), the "safe harbor" statute, because the importation was allowed for drug development...
Nortel Phones It In
Posted on March 18, 2008Toronto-based Nortel Networks, known to hammer competitors with patent litigation suits, spent $560,000 lobbying for patent legislation in 2007; a Canadian company paying for the U.S. to foul its patent regime; guess they figure patents are a zero-sum game to them...
When failure = success? Patents stimulate new ventures.
Posted on March 18, 2008"If I had a world of my own, everything would be nonsense. Nothing would be what it is because everything would be what it isn't. And contrary-wise; what it is it wouldn't be, and what it wouldn't be, it would. You see?" - Alice in Wonderland The PatentlyO posts from Bessen and Meurer are taking a trip to crazy-town...
Dish Wishing
Posted on March 18, 2008Dish Network, formerly EchoStar, remains in denial, now begging the CAFC for a reversal of its upholding a $73.9 million jury damages award for infringing TiVo patents. Dish points to an expert witness they claim was self-contradictory, thus leaving infringement in doubt...
Drama
Posted on March 17, 2008Professor Dennis Crouch: "Over the past two decades, the number of patents being litigated has risen dramatically." Crouch then shows a graph that's clear as mud: one axis labeled "Patent Count;" the other "Year Complaint Was Filed...
Here Boy
Posted on March 17, 2008USPTO statistics show reexamination to be an effective tool for bringing questionable patent claims to dock: 64% of claims are amended, 10% cancelled; 26% emerge unscathed. S. 1145 eliminates inter partes reexamination (Sec. 5), substituting a terminal one-year open season...
Crossroads Ahead?
Posted on March 16, 2008Patent holders have been hit hard the past couple of years. Declaratory judgment motions may now be filed at the drop of a hat, obliterating licensing negotiation without first suing, thus rendering litigation de rigueur. Obzilla is still wrecking havoc in combo-Tokyo, whilst Thomas Jefferson spins in his grave...
Litigation Trends
Posted on March 15, 2008What litigators already know: rocket dockets are the best bet; jury trials trump bench trials for awards; being plaintiff is advantageous. East Virginia and Western Wisconsin have the fastest rockets in their dockets, but offer only an average 50-50 chance of success...
Damages Trends
Posted on March 15, 2008Contrary to propaganda, patent damages are not burgeoning; rather, remaining fairly constant. On average, awarded damages in software cases are less than for mining patents, and almost a third less than telecom patent cases. Juries award larger damages, but that may be a statistical anomaly for the types of cases tried before jury rather than at the bench...
Half Blind
Posted on March 15, 200835 U.S.C. §284 sets patent award "damages adequate to compensate for the infringement but in no event less than a reasonable royalty for the use made of the invention by the infringer." Georgia-Pacific v. United States Plywood enumerated 15 factors upon which royalty determination may be made, and has become the bedrock of damages case law...
Failure
Posted on March 14, 2008James Bessen and Michael Meurer take a swing at the U.S. patent system in their new book, Patent Failure: "Innovators have grown frustrated with the failings of the American patent system." The book is fiction, based on fallacious premises and sophistic analyses...
Patents, Property, and Corporations: a Historical and Economic Reminder
Posted on March 14, 2008Economists Bessen and Meurer have published a book, Patent Failure, detailing the results of their study of the economic benefits of the patent system. In their own words, a central theme in the conclusions from their study is that "patents often fail to perform effectively as property rights...
Davids Against Goliaths
Posted on March 13, 2008Digital media, digital imaging, and wireless communications are the patented technologies owned by three small inventors who have recently filed lawsuits against major corporations....
Never put patents in a corner!
Posted on March 13, 2008"Many of life's failures are people who did not realize how close they were to success when they gave up." -Thomas Edison As regular readers know, the author is aware of imperfections in the current patent system in the United States. In that regard, he was very pleased to read about what looks like some good work done by a couple of economists on the patent system...
Guitar Hero
Posted on March 13, 2008Gibson, the electric guitar maker, owns 5,990,405, claiming a system for simulating user participation in a pre-recorded musical performance, much like Activision's "Guitar Hero" game, a billion-dollar hit in North America alone, selling 16 million copies...
Down & Outed
Posted on March 12, 2008Rick Frenkel had a juvenile impulse to blog anonymously. The juvenility was not so much anonymity per se, it was blogging as he did - trying to out others with staying masked. The inevitable occurred - Frenkel pissed off attorneys, including the legendary Ray Niro, who put a bounty out for Frenkel's identity after Niro took umbrage...
Inequitable Conduct Policy
Posted on March 12, 2008Former USPTO Commissioner Harry Manbeck, now with Rothwell, Figg, Ernst & Manbeck, has written the Senate Judiciary Committee with a wise perspective on one ill-considered decimation proposed in the folly codified as S. 1145: "I believe that it would be a mistake to eviscerate the [inequitable conduct] doctrine as it now stands...
They Call This Reportage?
Posted on March 11, 2008Mareen Farrell gives a garbled account of the patent scene in Forbes: "They Call This Intellectual Property?" Farrell surmises the source of pendency: "Blame part of the pile-up on pesky filers of overly obvious patents." With no sense of perspective, Farrell mentions KSR, but then rails about silly patents issued before the PTO made patent grants as scarce as hen's teeth...
Reaction to Reaction
Posted on March 11, 2008Last week, in reaction to the 2007 Patent Deform Act being stalled, the Coalition for Patent Fairness (CPF) signaled false compromise. Now, defenders of patent sensibility react. From the Coalition for 21st Century Patent Reform - "This proposed language from the Coalition for Patent Fairness does nothing to move patent reform closer to adoption...
Did Bayh-Dole end Corporate R&D?
Posted on March 11, 2008Thirty-years ago, many large corporations had entire in-house divisions devoted to R&D. Think of IBM's Watson and ARC Labs, AT&T Bell Labs, and Xerox PARC. Since that time, these R&D labs have greatly diminished in size or disappeared altogether. At the same time, the pace of innovation in the United States has not been slowed...
Appeallusion - Part II
Posted on March 11, 2008As previously reported, the current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion of high-quality examination at the PTO. Let's glance at rates that better demonstrate the unfortunate reality....
Cells Unstemed
Posted on March 11, 2008WARF is a patent holding company for the University of Wisconsin scientific community. Three WARF stem cell patents that had validity aspersions cast by "public interest" busybody Dan Ravicher of PUBPAT have survived USPTO reexamination, albeit with some amendment...
Pooked
Posted on March 09, 2008Physicists are realizing that dark energy holds the universe together. It's old feed for wranglers at the corporate software corral that dark energy keeps the cattle in the pen. So, Novell Vice President Miguel de Icaza last week whining that Novell striking a patent licensing deal with Microsoft was like bedding the dark-side beast sounded less than intriguing; in fact, it sounded just like whining...
Uncompromising Damages
Posted on March 09, 2008The Coalition for Patent Fairness and Financial Services Roundtable last week wrote Senators Leahy, Hatch, and Specter, tweaking a smidge their insistence on damages apportionment as a sure means to clog the courts, maximize litigation cost, and eviscerate patent enforcement...
Gold Standard
Posted on March 08, 2008A patent discloses an invention that is useful, valuable, and innovative; a patent that protects invention with the broadest possible claims, but still novel and non-obvious over the prior art; claims applicable under the doctrine of equivalents, untainted by prosecution estoppel; a patent that cites the most relevant prior art...
Patent Looting
Posted on March 07, 2008A mob of more than 180 German police and customs officials goose-stepped into Europe's largest gadget uber-fair, and hauled off 68 cartons of booty alleged to be patent infringing. While "innocent until proven guilty" is the lip service, guilty until proven innocent is the reality worldwide; the raid was instigated by "criminal complaints by the holders of patent rights in the run-up to CeBit...
CIP Not A Divisional
Posted on March 07, 2008Teva's ANDA for a generic version of Pfizer's Celebrex, an arthritis treatment, predictably met with infringement assertion: 5,466,823; 5,563,165; and 5,760,068. Teva lost, and appealed, whereupon the CAFC found double patenting in the '068. Safe harbor for divisionals under 35 U...
Cock-up
Posted on March 06, 2008Tessera stock shot up 16% after it sank in to the motley fools commonly called "investors" that the non-final rejection in Tessera's patent exam was not equivalent to falling off a cliff. As Scot Griffin, general counsel for Tessera, reminded: "Claims of a patent can not be invalidated in reexamination until the process is fully complete, including all appeals...
Punted
Posted on March 05, 2008The power of patents to stock punters was apparent on Tuesday as Tessera Technologies shares were battered in the wake of a non-final office action in a patent reexamination; the price ravaged 39%, losing $8.99, closing at $14.07. Like a kindergarten "time out," share trading was halted mid-day after a free-fall of 52%; trading in massive volume...
Contra-Validity
Posted on March 05, 2008Bayer tried to take Barr down for its aspirant generic version of oral contraceptive Yasmin®; using 6,787,531 as the preventive pill. Following trial, springing from the bushes of a 96-page opinion, Obzilla claims another victim....
Appeallusion
Posted on March 05, 2008The current affirmance rate of the USPTO Board of Patent Appeals and Interferences (BPAI) yields the illusion that examiners deserve a pat on the back for a job well done, but behind every illusion lies reality. Let's peek at the man behind the curtain...
End Software Patents
Posted on March 04, 2008A fantasy propaganda site called End Software Patents (ESP) seeks an end to what doesn't exist: software patents.</p...
Bang for Bucks
Posted on March 04, 2008Senators Leahy & Hatch keep pounding their old tom-toms for the Patent Deform Act, but it's just to pacify their patrons; the dancers have moved to another tune. A Patent Prospector confidential source reports: The latest from Washington is that (Senate Majority leader) Reid has said the bill won't come to the floor before April...
Grasp by Analogy
Posted on March 03, 2008On the Supreme Court, Justice Antonin Scalia can't resist indulging in sarcasm as modus operandi. Contrast that with the poised maturity of persnickety Justice Ruth Bader Ginsberg, who revels in the devils in the details. Justice Stephen Breyer: "The point is to try to focus on a matter that is worrying me...
Visto Victorious
Posted on March 03, 2008A week before trial, Microsoft has settled with Visto assertion of three Visto data sync patents; terms undisclosed, of course. In 2006, Visto won $7.7 million in damages against Seven Networks for the same patents. Meanwhile, Canadian chowderhead Research in Motion (RIM), aiming to pay as much as possible, goes to trial in July against four Visto patents...
New Rules
Posted on March 02, 2008While not to date considered a rocket docket, the patent litigation rulebook crafted in the Northern District of California has been an inspiration for other districts: the Eastern District of Texas and Southern District of New York included. Effective March 1, 2008, North California has a revised rulebook in play...
Practice Makes Perfect?
Posted on March 02, 2008Statistics is a craft; running the numbers is the easy part. The tough bit comes down to data quality: how reliable is the base of data employed? Heterogeneity is the bane of statistical reliability: comparing apples to oranges tells you nothing about either apples or oranges...
Crippling
Posted on March 01, 2008Using the San Jose Mercury News for a soapbox, Daniel Leckrone, head of the patent prospecting TPL Group, ripped into proposed legislation currently withering on the vine in the Senate. If passed in its existing form, the bill masquerading under the euphemism "Patent Reform Act" will stifle growth and prosperity for the average U...
Money Changes Everything
Posted on March 01, 2008MercExchange's patent assertion against eBay's "Buy It Now" feature resulted in a Supreme Court ruling that, using a four-factor test, essentially denied injunctive relief unless the patent holder was a direct competitor to an infringer. Thursday, eBay announced that it bought three patents from Merchange for an undisclosed amount, including 5,845,265, the centerpiece of the matter...
Narrow Escape
Posted on March 01, 2008WARF, son of Mogh, has again evaded death at the hands of Romulans: this episode, one posing as a USPTO patent examiner. 7,029,913, claiming in vitro culturing of Klingon stem cells, passed reexamination....
Pedaling Exhaustion
Posted on March 01, 2008John Osborne at Morgan & Finnegan argues for reversal in his article: "Justice Breyer's Bicycle and the Ignored Elephant of Patent Exhaustion: An Avoidable Collision in Quanta v. LGE "- The parties and amici in Quanta v. LGE have proposed either (1) eliminating any ability to restrict downstream use of a product made under a patent (Petitioners) or (2) allowing an essentially unfettered right to restrict a purchaser's use rights by contract (Respondent)...
U Turn
Posted on February 29, 2008Micron sought declaratory judgment in Northern California against memory-chip competitor MOSAID, the day before MOSAID filed in East Texas. Northern California district court pitched the DJ matter. Micron appealed. The appeal ruling is a textbook of current case law for declaratory judgment jurisdiction and district court discretion...
Checking Out
Posted on February 28, 2008The "upgrade" to Movable Type (MT) 4 was a bilious bumble. Basically, it blew chunks, and it was no self-revelation that I make a cantankerous janitor. MT seemingly gave no consideration to backward compatibility. Among other tedious wankings, subscription notification went to hell in a bucket without leaving a "thank you" note...
Screening
Posted on February 28, 2008The University of California and Abbot went after Dako for infringing DNA screening patents 5,447,841 and 6,596,479. After a district court priority blunder, and turning aside a preliminary injunction motion, claim construction gave Dako a noninfringement out; until appeal...
Shorted Out
Posted on February 27, 2008Tessera, semiconductor miniaturization maven, took a half-dozen companies to task before the International Trade Commission (ITC), including Motorola, Qualcomm, Freescale Semiconductor, and ATI, a unit of Advanced Micro Devices (AMD). Monday morning, just before the ITC trial was scheduled to begin, Administrative Law Judge Theodore Essex brought the tent poles down, pending reexamination outcome of the asserted Tessera patents...
Fish Tank
Posted on February 27, 2008Myth tells us that fish grow to the size of their tank. Reason suggests, related to a USPTO examiner, this myth may prove out....
Willful
Posted on February 26, 2008Monday, the Supreme Court snubbed certiorari for the CAFC en banc Seagate decision that practically eviscerated willful patent infringement. Nor reason was given. To seek enhanced damages, the Seagate standard requires that a patent holder prove that an infringer was "objectively reckless" in knowingly infringing a patent...
Down Boy
Posted on February 26, 2008Medtronic's lawyers were hammered for malpractice in patent suit against BrainLAB last week. Now a different legal crew barking for Medtronic has been slapped a $10 million fine for similar malfeasance....
Relief
Posted on February 26, 2008Carlos Amado owns 5,293,615, which claims an interface method between spreadsheet and database programs. Amado sued Microsoft for its Office product infringing, and won 4˘ per copy royalty, and an injunction. The injunction was stayed pending post-trial motions, during which Amado got 12˘ per copy royalty...
On-Line Chat for Independent Inventors
Posted on February 26, 2008Every couple of months the USPTO hosts an on-line chat, allowing independent inventors to ask questions regarding the patent process. The next chat: Thursday, February 28th, from 2 to 3 PM (EST)....
Worldwide Patent Survey
Posted on February 25, 2008Joff Wild of Intellectual Asset Magazine surveyed the 2007 international patent scene, and found some patent puppies with growing pains, while old dogs are up to tricks both old and new....
Exuberance Rewarded
Posted on February 25, 2008Last February, the appeals court found Medtronic's four-patent assertion against BrainLAB worthless, upholding Colorado district court Judge Richard Matsch overturning a duped jury verdict of infringement. Back before the district court, entertaining a post-trail motion by BrainLAB to recover all attorneys fees and costs, Judge Matsch raked Medtronic's attorneys over the coals, particularly Terrence McMahon and Vera Elson of McDermott Will & Emery...
No Surprise
Posted on February 24, 2008Rick Frenkel's setup for blogging always seemed a bit queer - anonymously blogging voyeuristically, by supposedly peeking behind the curtain of non-practicing patent holders quietly enforcing their patents, as if anyone should care about that ipso facto...
Exam Plan
Posted on February 24, 2008USPTO registration exam questions have remained very similar throughout the years, some word-for-word identical, but the overall focus of the 100-question exam has shifted drastically. Is this merely the necessary result of a shift in exam format, or is it an indication of a change in focus at the PTO? Regardless, for those currently preparing for the Patent Bar, modify your study plan accordingly...
Follow the Money
Posted on February 23, 2008If you wonder why, for the Patent Reform Act, Senator Leahy is so hot to trot, it's that he got paid and bought. Of the $2.4 million packed into Leahy's political piggy bank in the past five years, three-quarters of a million came from "lawyers and lobbyists;" not surprising, given that Leahy is Senate Judiciary Committee Chairman...
Blackboarded
Posted on February 23, 2008Blackboard suing competitor Desire2Learn for infringing 6,988,138 spurred academic outrage, but a hillbilly east Texas jury paid the pointy-heads no heed, awarding $3 million in damages....
Retractable
Posted on February 22, 20086,733,328 has been treated like a commodity. It was originally assigned to Ultra Products, then transferred to Taiwan-based Transpower Technology. Transpower made Retractable Technologies LLC exclusive licensee, capable of enforcing the patent; although Dallas-based Data Drive claims to be exclusive licensee, but that Retractable could license the patent with permission...
SPEcial Powers
Posted on February 22, 2008With USPTO allowance rates at an all time low, there has been frequent analysis and speculation regarding cause and implication. There is a player in the shadows: the supervisory examiner....
Factual Fiction
Posted on February 22, 2008For now, the CAFC retains a polite fiction: "We review claim construction de novo on appeal. Cybor Corp. v. FAS Tech., Inc., 138 F.3d 1448, 1456 (Fed. Cir. 1998) (en banc);" de novo because claim construction is considered a matter of law, not a factual inquiry...
Rocket Dockets
Posted on February 21, 2008The Eastern District of Texas has become the most popular court for patent litigation. As a result, with stuffed docket, time to trial has stretched to about two years. Other districts are taking up the slack, notably the Western District of Wisconsin and the Eastern District of Virginia, but there is a potential drawback to the also-rans...
Wireless & Witless
Posted on February 21, 2008BlackBerry maker Research in Motion (RIM) and Moto Q maker Motorola sued each other Saturday for patent infringement. Illinois-based Motorola chose Delaware and the Eastern District of Texas, while Ontario-based RIM chose the Northern District of Texas...
On-Sale Bar Ruffle
Posted on February 21, 2008In reply to potential customer Sealy, a bed mattress maker, Atlanta Attachment developed a sewing machine for automatically creating gusset rufflers. There was a verbal understanding of confidentiality. Over time, Atlanta Attachment sent prototypes to Sealy, in September 2000 invoicing Sealy for the third of four prototypes ultimately delivered...
A View from Tel Aviv
Posted on February 21, 2008Bernard Frieder is a consultant to technology companies in Israel, miffed at the U.S. Congress for threatening to wreck the U.S. patent system with its Patent Reform Act of 2007. Because inventors, research organizations and startup ventures around the world rely on US patents to protect the output of their labor, changing the US patent system has global repercussions...
Loaded Gun
Posted on February 21, 2008George Margolin of the Professional Inventors Alliance had a graphic response to last week's editorial in the Washington Times by Senators Leahy, touting S. 1145, the Senate bill to deform the U.S. patent system. "All inventors strongly disagree with [Leahy], but he wouldn't know that because he has allowed few, if any, real inventors speak before his committee," Margolin conjectured...
Infringement Kimchee
Posted on February 21, 2008Korea Aerospace University Professor Lee Keung-hae invented software for automatic linguistic switching between Korean and English. Lee lost his initial patent assertion against Microsoft for its Korean version of Word, in 2000. At the time, Lee claimed $42,000 in damages...
All Good
Posted on February 20, 2008The U.S. Patent Reform Act of 2007 is a gift, a most welcome change, if you are an Indian generic drug maker. The view from Mumbai: The immediate impact of the law change will be to ease challenges on drug patents and also lower legal costs in such challenges...
Frank Piasecki
Posted on February 19, 2008Igor Sikorsky flew the first helicopter in 1941. In 1943, Frank Piasecki flew the second helicopter, the PV-2, built from junk auto parts in a Philadelphia garage. The PV-1 never made it past the drawing board. The first PV-2 flight was rambunctious: Piasecki had only 14 hours flight experience in a small Piper Cub airplane...
CAFC on Patent Reform
Posted on February 19, 2008Chief Judge Michel of the U.S. Court of Appeals, Federal Circuit (CAFC), addressing the Association of Corporate Patent Counsel on January 28, 2008, backhandedly took Congress to task for being duped by asinine academics, essentially rumor mongers, jumping to conclusions, ignorant of facts...
Preliminary Injunction
Posted on February 19, 2008A vacated pair of precedential preliminary injunction appeals put claim construction and KSR as the cruxes of justification. In Erico v. Vutec & Doc's Marketing, though hotly contested, KSR Obzilla stomps in to quash a preliminary injunction. In Chamberlain Group v...
Patents as Intangible Asset Partitions
Posted on February 18, 2008Everybody knows that corporations shield shareholders from liability for debts of the corporations. But corporations perform another function, which may be even more important for startups: corporations shield the corporate assets contributed by one shareholder from being raided by the creditors of other shareholders...
Interest
Posted on February 17, 2008As reported last week, Dr. Bruce Saffron nabbed Boston Scientific for patent infringement to the tune of $432 million. Friday, the presiding judge tacked on $69 million in pretrial interest. Saffron's lead attorney pipped: "$69 million is a nice amount...
Bad Brew
Posted on February 17, 2008Economist Robert Shapiro and health care policy maven Aparna Mathur rip into provisions of the Patent Reform Act currently swirling the bowl in the Senate. In a study published by the Biotechnology Industry Organization, the authors project the repercussions of damages apportionment, post-grant opposition, and lowering the bar for inequitable conduct...
Technical Difficulties
Posted on February 17, 2008Yes, The Patent Prospector has been off the air for a couple of days; but is once again pleased to broadcast a seamy stream of random competence in the patent world. As chronicled herein, senators, Supreme Court Justices, inventors, and run-of-the-mill patent attorneys parade as nincompoops on a tear...
Good Old Bozos
Posted on February 15, 2008Senators Leahy and Hatch, in a Washington Times editorial, cry wolf about the need for patent reform, dishing out fallacious logic and rummy rumor posing as fact. "Meaningful patent reform is crucial to America's ability to maintain its competitive edge in the world," they toot, without evidentiary basis or rational reasoning matching perceived problem to proposed solution...
Becalmed
Posted on February 15, 2008Keith Perine in the Congressional Quarterly spied the stall in the Senate version of the Patent Reform Act. The Senate is not expected to take up a measure to overhaul patent laws until April at the earliest, as agreement on the complex legislation remains elusive...
Shifting Liability
Posted on February 14, 2008Money is a lubricant and a salve. Banks apply the salve to others to ease their own pain: potent wads in political lobbying and campaign contributions. With the housing market in deep kimchee, the banking industry is pushing proposals to shift the risk of mangled mortgages to the Federal Housing Administration; considered far-fetched a few months ago, now more a matter of when than whether...
Apportion This
Posted on February 13, 2008The Innovation Alliance sports a study by Prof. Paul Janicke that concludes: "There is no pattern of runaway jury verdicts in patent cases." What's more: "Despite what some argue, under our system of justice, judges do not simply "rubber stamp" a jury's damage award...
Wage Slave to Own
Posted on February 13, 2008Back in 1991, the Barstow brothers, David and Daniel, patented a way to include computer events within a live broadcast. Being sports fans, the Barstow boys dreamt up the idea from wanting to watch baseball games simulated on a computer. They went after MLB Advanced Media, who got the matter tossed in district court over subject matter jurisdiction...
It's a Dud, Dude
Posted on February 12, 2008Patent monger Alcatel-Lucent sued Dell in 2003 over 15 patents; Dell counterclaimed with 6,038,597 and 6,182,275, related to Internet computer product ordering. Jury trial found Dell's patents valid and non-infringed. Dell was ordered to pay costs....
Money Matters
Posted on February 12, 2008The Coalition for 21st Century Patent Reform, whose motto is "patents matter," made no small matter of making money matter in lobbying for patent legislation: paying law firm Akin Gump $1.2 million in 2007 to grease the skids....
Stent for Rent
Posted on February 12, 2008Over a decade ago, radiologist Dr. Bruce Saffran invented a drug-eluting porous sheet, and was granted 5,653,760. Boston Scientific liked the idea. Imitation resulted in flattery costing $431.9 million, an 8% royalty on U.S. sales, and 6% on foreign sales, from 2004 through last September...
Black Hole of Enablement
Posted on February 11, 2008Enablement was spun into a black hole of uncertainty by the CAFC in Sitrick v. Dreamworks, which expanded the enablement requirement at least to the degree that an accused product must be a disclosed embodiment for a claim to be enabled. Hal Wegner: "In essence, Sitrick voids any generic claim that is fully enabled as to a preferred embodiment, but includes other embodiments not yet enabled...
No Signal
Posted on February 11, 2008Petition for CAFC en banc rehearing In re Nuijten shorted out 9-3. Nuijten had appealed encoded signal claims, disallowed by the BPAI as unpatentable subject matter under 35 U.S.C. § 101; a ruling upheld in CAFC panel. A cogent dissent signals the wire still live: the Nuijten ruling conflicted controlling precedent, and left unanswered questions about the relationship between § 101 & § 103...
Overseas Out to Sea
Posted on February 09, 2008Transocean, the world's largest offshore drilling company, has a patent portfolio for multiple-activity offshore drilling that has been a gusher, scoring licensing agreements from major competitors, including Nobel and Pride International. Now a Transocean drill has been bit: two Norwegian patents have been invalidated by a Norwegian court in Transocean's suit against Smedvig, acquired by Seadrill in 2006...
Vision Correction
Posted on February 09, 2008CIBA Vision, maker of extended-wear contact lenses, was short-sighted: its ophthalmologist, Rembrandt Vision Technologies, corrected CIBA's vision. The tab was $41 million. That's a 6+% royalty for past sales of contact lenses infringing 5,712,327, which claims contact lenses with superior water absorption...
Klingon Attack
Posted on February 08, 2008WARF, the Klingon who once served on the Starship Enterprise, has resurfaced on earth as a patent troll, albeit oversized, as patent trolls are normally dwarfish. Whatever. WARF is bashing Intel for CPU patent infringement after negotiations understandably failed: Intel does not speak Klingon...
Thwarting
Posted on February 08, 2008In the Eastern District of Virginia today, savvy Judge James Cacheris heard oral arguments on whether the USPTO may implement its proposed examination rules changes. The crucial issue is whether the changes are substantive, which they are. Textbook interpretation is that the patent office is proscribed by law from promulgating substantive changes, and from applying them retroactively, as in this instance...
Carnac The Magnificent
Posted on February 07, 2008As prescient as he is scrupulous, Grand Patent Poobah Jon Dudas predicted patent reform passage: "I'm optimistic that we'll have patent reform because what we see is that there are very real answers. We're an innovation economy. We think that the model works, but can be improved [to arrive at] a positive bill that can benefit everyone...
Cover-Up
Posted on February 07, 2008The organized crime syndicate known as the USPTO tried to thwart input in its fight to implement its illegal rule changes to examination practice. The attack is answered. Despite representing to this Court several times that the administrative record was complete, the PTO itself demonstrated otherwise when it recently and belatedly supplemented the administrative record, not once but twice...
Zen Valor
Posted on February 07, 2008The Financial Times posted an opinion piece by Patti Waldmeir that surmised Congress just contemplating patents is just about right. At such a time of uncertainty, inertia may be the better part of valour: Congress has wasted years not solving the patent problem; it is hard to see why lawmakers should rush things now, when the only problems left to resolve are the really hard ones...
The Patent Union
Posted on February 07, 2008An brotherhood of unions forge opposition to patent tomfoolery in the Senate - [P]rovisions contained in S. 1145, the Patent Reform Act of 2007, that we believe could undermine the competitiveness of U.S. industry and put our members' jobs at risk....
Why Litigate?
Posted on February 06, 2008Patent litigation is tremendously expensive. And noisy. The ruckus has stirred quite a crowd: fat geezers with political heft to match are jostling to shuffle the seating arrangements in the patent spat ballroom. The stakes for infringers can stray to six to nine figures or more...
Bad Seed
Posted on February 06, 2008Dakota farmer Loren David tried to cheat Monsanto by saving and replanting patented soybean seeds, a breach of contract as well as patent infringement. Monsanto caught him, and it's going to cost David in the neighborhood of $700,000....
Batter Out
Posted on February 06, 2008Wilson Sporting Goods owns baseball bat patent 5,415,398, but it can't get a hit to first base. In the patent's third appearance before the CAFC, Wilson strikes out as Miken Composites keeps its walk of non-infringement....
Lack of Consensus
Posted on February 05, 2008Senate Judiciary Committee Chairman Patrick Leahy recently released a Senate status summation on S. 1145, the Patent Reform Act of 2007. It shows a diversity of comprehension, misunderstanding, and uncertainty by various senators. Meanwhile, the White House chips in...
Cold War
Posted on February 05, 2008Linux godfather Linus Torvalds took potshots at patents in general and software patents in particular in a Linux Foundation podcast. Torvolds damns with faint praise Microsoft's restraint in patent assertion. From the remarks, one may conclude that casting from a pod makes one grumpy...
Patent Office on Patent Reform
Posted on February 05, 2008USPTO management posted on its internal agency website a position statement concerning changes in pending patent law. The patent office strongly opposes damages apportionment, while supporting the new post-grant opposition regime....
800 Pound Gorilla
Posted on February 04, 2008In a letter from U.S. Rep. Marcy Kaptur to the U.S. Attorney General, regarding Micrsoft's "market dominance," in context of its acquisition of Yahoo! - As part of its effort to dominate the high technology sector, Microsoft is seeking to fundamentally transform the treatment for those entities that infringe on the intellectual property of other innovators by minimizing the damages the victim could receive and to ensure that the potential for harassment would extended dramatically by allowing for virtually endless attacks on patent validity...
Busted
Posted on February 03, 2008The Electronic Frontier Foundation is a self-appointed busybody for relieving owners of their intellectual property whenever possible. Their Patent Busting Project aims at "illegitimate" computer-related patents. EFF modus operandus is filing reexamination requests on "particularly egregious patents;" namely, those where the owner raises an enforcement stink, and EFF thinks it has dug some decent prior art...
Obviousness Training
Posted on February 03, 2008USPTO examiner training in obviousness rejections has been ongoing. In review, what shines as sunlit crystal is the legacy of KSR: how disparate technologies may be combined as basis for rejection, beyond what prior art disclosed....
In A Hurry
Posted on February 02, 2008Two former patent office commissioners show themselves as shoddy analysts in their capacity as toads for the corporate special interest group Coalition for 21st Century Patent Reform. But in doing so, they prove the hoary adage that every once in a while, even a blind pig finds an acorn...
Pass the Glue
Posted on February 02, 2008In F&G Research v. Dynapoint (Taiwan), the CAFC ruled Allen D. Brufsky a scumbag: having "significantly misrepresented the facts," relyin