Patent Law

Patent Slips on Non-Slip Surface

Posted on May 24, 2010
Microthin.com sued SiliconeZone computer mouse pad patents 5,942,311 & 5,997,995, which claim "a thin, non-slip mat or pad made of plastic" and a method of making the same, respectively.  After claim construction, the district court, by summary judgment, found the asserted claims, claim 1 of each patent, anticipated by 5,738,325...

Take The Gamble

Posted on May 23, 2010
Nevada IP holding company Patent Rights sued "out-of-state gaming companies" on its home turf, for infringing 6,475,087 and 6,860,814, which claim "casino-style gaming machines." The Nevada courts dismissed the cases for lack of personal jurisdiction, and "denied Patent Rights' request for jurisdictional discovery...

Misguided Missile

Posted on May 19, 2010
Another patent applicant groans like Tom Jones: "Stop Breaking My Heart." Does this lyric sound familiar? "The applicant argues that these rejections were based on a misunderstanding of the [prior art] references, and lacked sufficient findings by the Board...

Sales Assistant Killed

Posted on May 18, 2010
Jerome Johnson got thoughtful while working "at a farm equipment dealership." 5,367,627 claims a computerized sales assistance system for finding particular parts. Jerome sold the patent to Orion in 2004. Orion sued Hyundai and 20 other automakers...

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The Napkin of Death

Posted on May 15, 2010
Esquel Enterprises filed a DJ against TAL Apparel over 5,568,779, claiming methods of making garment seams that reduce pucker. A finding of inequitable conduct, and attorneys fees award was reversed on appeal. On remand, Esquel got the same result. TAL appealed...

Crafty Stand

Posted on May 14, 2010
The labyrinth of possibilities makes patent licensing a byzantine form of contract, particularly regarding standing. Case in point. AMF licensed ear implant patents 5,609,616 and 5,938,691 to AB, while retaining certain rights, including the "secondary right to sue to enforce the patents...

Mule Kick Trick

Posted on May 13, 2010
Interferences are the mule kick of the shambolic first-to-invent patent regime that only the U.S. clings to. In this episode, Jos Timmermans provoked an interference by copying claims into 11/085,744 from Jones J. Robertson's LED lighting patent 6,860,628...

Prosecutor Grift

Posted on May 10, 2010
We see it all the time. Inventors who paid tens of thousands of dollars to respectable law firms who took their money and either got them worthless patents, or strung them out with useless applications that even the patent office wouldn't grant. They come to Platinum Patents with a prosecution mess, or tantalized by infringement of their invalid patent, knock on Patent Hawk's door looking for a hookup to contingency...

Extension

Posted on May 10, 2010
Three recent cases before the CAFC went to challenges to patent term extension. Photocure challenged the PTO's denial of term extension in Photocure v. Kappos, and won. In Wyeth v. U.S., Wyeth unsuccessfully challenged the FDA's "determination of the date on which the approval phase of its phased regulatory review process begins for purposes of calculating patent term extensions...

On the Mat

Posted on May 08, 2010
David T. Pelz tried to patent a golf training mat (11/066,554). Non-final rejection purely on anticipation prompted Pelz to amend the preamble. The language in the claims: "consisting essentially of," and "include," speak volumes to a deft prosecutor of the claims being in the weeds...

Swept Away

Posted on May 07, 2010
Rolls-Royce's 6,071,077 and United Technologies (UTC) reissue application 09/874,931 had a head-on collision in the PTO that bounced into court under 35 U.S.C. § 146. The patents go to fan blades used in jet aircraft. The lame-brained patent Board misconstrued claims (too broadly, naturally: "the Board interpreted the claim to embrace both a forward and rearward sweep angle"), and found an interference, ruling in favor of UTC...

Intent?

Posted on May 06, 2010
Emcore sued Optium for infringing laser-based optical fiber communication patents 6,282,003 and 6,490,071. Optium charged Emcore for inequitable conduct because Emcore failed to cite to the patent examiner a relevant article. Emcore did not dispute that the inventors knew of the prior art...

Stapled

Posted on May 05, 2010
Don't mess with Staples. "Staples has won three suits in recent months that, taken as a whole, demonstrate its resolve to aggressively defend against patent infringement claims it believes are without merit. The suits involved three popular products sold under the Staples brand name...

Black Hole Swab

Posted on May 04, 2010
Allegra D. Hemphill was granted 4,557,720 for a "vaginal swab." "Ms. Hemphill has prosecuted a number of actions and appeals based on the '720 patent, none of which has been successful." She tried again in 2007 against Kimberly-Clark and Proctor & Gamble for their sanitary napkins products...

Sanctioned

Posted on May 03, 2010
Starting in 1998, Medtronic sued multiple parties over multiple surgical instruments patents, BrainLAB being one of them. Defendants summary judgment motions of noninfringement were denied. Before the case went to the jury, BrainLAB renewed its JMOL motions, which the district court again denied...

Dun In

Posted on April 29, 2010
Judson A. Bradford had some ideas for collapsible shipping containers. So he patented. 5,725,119 came first. Then 6,230,916, a divisional of '119. 6,540,096 was a CIP of '916. Enforcement went nowhere: noninfringement. But the CAFC revived Bradford's prospects owing to a too-narrow claim construction...

Dogged

Posted on April 28, 2010
Dr. Hannis Stoddard went to the animal shelter to retrieve his lost dog. Apparently taken by what he saw, "Dr. Stoddard made it his mission to implement a better system of dealing with the identification and processing of recovered animals." So he started Avid Identification Systems...

Attention Deficit

Posted on April 27, 2010
6,919,373 is a drug patent that claims a treatment regime for folks with short attention spans. The claims specifically go to "an ascending release rate over an extended period of time." A bench trial found '373 not infringed, and "invalid for lack of enablement because the specification does not enable the full scope of claim 1, which covers both osmotic and non-osmotic dosage forms...

Unclear

Posted on April 22, 2010
Nissim sued ClearPlay for patent infringement. They settled by ClearPlay taking a license, paying ongoing royalties. Nissim got upset that ClearPlay wasn't playing it straight, so Nissim sued to enforce the agreement, as well as tattling to ClearPlay's customers...

Short Straw

Posted on April 20, 2010
09/310,880 (Harari) traced its priority date linage back to June 8, 1988. 5,828,601 (Hollmer) was filed December 1, 1993, with no antecedent. So how do these two get into an interference, and Harari's claim to invention draws the short straw? USPTO incompetence!...

Stuck

Posted on April 18, 2010
RE36,885 claims a hypodermic safety syringe. '885 is fifth in a family dating back to 1990. MBO amended claims in the parent application, and in a succeeding CIP, to overcome prior art. In a cousin to the reissued '885, MBO argued over the prior art. The examiner allowed the claims, but MBO abandoned that application to pursue 5,755,699, which would later reissue as '885...

Keep It Secret, Keep It Safe

Posted on April 16, 2010
A patent and/or its publication may be withheld indefinitely when deemed "detrimental to the national security" under the Invention Secrecy Act, 35 U.S.C. § 181. An applicant/patentee may seek compensation for secrecy withholding under § 183, beginning with "the date of first use by the Government...

Manipulative Practices

Posted on April 15, 2010
"In 2003, Congress enacted the counterclaim provision of the Hatch-Waxman Act in order to prevent manipulative practices by patent holders with respect to the Orange Book listings. These practices were designed to delay the onset of competition from generic drug manufacturers...

Floored

Posted on April 14, 2010
The rampaging incompetence of the USPTO is dammed only by appeal to the courts. Time and again, the PTO's "broadest reasonable interpretation" of claims is hell and gone from reasonable. Case in point: 4,944,514, owned by Suitco Surface, which got a hard buffeting from the patent board in reexam, but reprieve from the CAFC...

Waving Goodbye

Posted on April 13, 2010
Anascape sued Nintendo and Microsoft over 6,906,700, which claims multiple controller input with tactile feedback. '700 is a CIP of 6,222,525. As such, '700's earliest possible priority date for its claims depends upon spec support within '525. And so '700's validity, as invalidating prior art lies between the '525 filing date and the '700 filing date...

Located

Posted on April 13, 2010
Global Locate took SiRF and others to the ITC to stop the defendants from importing products infringing six of its GPS patents, which claim methods for improving signal reception. Global Locate prevailed. The defendants appealed. At issue were standing, infringement, and whether GPS-based methods were patentable subject matter under the Bilski standard...

Outbid

Posted on April 10, 2010
Close-call patent litigation cases are not unusual, but many are exercises in denial. In this episode, Bid for Position bid for doggedness over 7,225,151, which claims a method for conducting a continuous auction. Having lost on non-infringement by a clear-cut claim construction, appeal makes Bid's grasping lawyers look doggedly witless...

Inventor Hard On

Posted on April 08, 2010
Vanderbilt University was cocksure that it contributed to the patents behind Cialis®, the currency-squirting erectile energizer. So it sued ICOS, current owner of 5,859,006 and 6,140,329, under 35 U.S.C. § 256, to correct inventorship. The district court decreed that Vanderbilt was pumping dog water...

Open Wallet

Posted on April 06, 2010
Florian Mueller reports that IBM "breaks the taboo and betrays its promise" to the open-source software community. Allegedly, IBM threatened to sue TurboHercules, an open-source  mainframe emulator company, for patent infringement. Naive to a fault, TurboHercules founder Roger Bowler opined: "I can state with confidence that our emulator is in no way an enemy of IBM's...

Scared

Posted on April 05, 2010
The 2007 Supreme Court ruling in MedImmune, Inc. v. Genentech set the stage for declaratory judgment actions at the sound of a snort from a patent holder. Or so those weak-in-the-knees over infringement reckon. Innovative Therapies (ITI) worried itself into a DJ action over five patents held by competitor Kinetic Concepts (KCI)...

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