Patent Law

Milking Bilski

Posted on November 01, 2008
Bilski 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, 2008
Software 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, 2008
Bernard 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, 2008
Earlier 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...

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Belated Inventor

Posted on October 28, 2008
Oren 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, 2008
The USPTO proposed rules on information disclosure statements (IDS) and on applications with Markush claims will not be published as final rules by the current Administration, PTO Deputy Commissioner for Patent Operations Margaret Focarino announced last Friday...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, 2008
Aaron 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, 2008
Green 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, 2008
As 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, 2008
Sandoz 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, 2008
Net 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, 2008
A 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, 2008
One 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, 2008
Wal-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, 2008
The 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, 2008
Patents 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, 2008
Donald 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, 2008
As 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, 2008
Technology 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, 2008
Last 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, 2008
Straight 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, 2008
A 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, 2008
Cohesive 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, 2008
Predicate 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, 2008
The 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, 2008
The 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, 2008
Advanced 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, 2008
CAFC 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, 2008
Patent 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...

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