Patent Law

No Transaction

Posted on December 17, 2009
Bless his heart, Henry Gleizer couldn't let go of his automated transaction patent application, taking his appeal all the way to the CAFC. What wasn't obvious to Henry was that obviousness isn't just obvious, post-KSR, it's monstrously obvious. Gleizer was affronted with the ease of combination to stomp his claims...

Expert?

Posted on December 16, 2009
Experts are the litigation equivalent of hired guns. They are only as good as the guidance given by the attorneys providing their payday on what bullets to shoot where. A case in point is Intellectual Science and Technology v. Sony. 5,748,575, one of five patents left standing on appeal, claims concurrent reading of computer CDs...

So Unlike Concrete

Posted on December 13, 2009
In an extremely messy patent case involving claim construction (and correction), noninfringement, invalidity, laches, indefiniteness, trade secrets, and topped with several business torts, Ultimax Cement had its quick-set concrete patents crumble by a sledgehammer summary judgment at district court, and so Ultimax sought repair at the CAFC...

Fig Leaf

Posted on December 13, 2009
The USPTO proves itself a political creature (again) with a pilot program to fast-track so-called green technology patent applications. "Every day an important green tech innovation is hindered from coming to market is another day we harm our planet and another day lost in creating green businesses and green jobs," spouted agency Director David Kappos...

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Proviso Surgery

Posted on December 10, 2009
The four-corners rule for contract law is straightforward. What is often not straightforward is the clarity of contracts. Thus hinges the case of Tyco Healthcare v. Ethicon Endo-Surgery. The upshot, in a contentious dispute over patent assignment & license, was that Tyco lacked standing to sue, and so the case was dismissed without prejudice...

Actually Factual

Posted on December 08, 2009
Source Search Technologies (SST) sued LendingTree over 5,758,328, which claims an online vending system employing request for quote (RFQ) posting to select potential vendors, to which the vendors respond. "The '328 patent claims to solve the "too much" or "too little" information problem commonly associated with running searches over a network or system...

Barred

Posted on December 05, 2009
It used to take a kick in the pants to file a declaratory judgment (DJ) action. Then the January 2007 Supreme Court MedImmune ruling lowered the bar, followed by the spring chicken CAFC Sandisk decision. Untested was how low the bar was. HP tested it, and found that "a lowered bar does not mean no bar at all...

Imperfect Web

Posted on December 03, 2009
Tom DiStefano got his quota-fulfilling bulk email patent, 6,631,400, when the PTO was still grinding out junk patents. Sued for infringement, InfoUSA snuffed the spam patent in summary judgment under obviousness after claim construction. With common sense, the CAFC licked the stamp that put that patent out of everyone else's misery, allowing a flood of spam email to go unpatented...

Retiring

Posted on November 28, 2009
CAFC Chief Judge Paul R. Michel, now 68, is retiring when the cherry blossoms next bloom in the nation's capitol. Having written 800 opinions, he is considering starting his own IP think tank. "Once I'm a retired judge, I can make a public nuisance out of myself...

#1

Posted on November 23, 2009
Quantity over quality is expressed in the quintessential American hanker of wanting to know who's number 1, which is the surmised measure of who is best. If there ever was a justifiable bifurcation between quantity and quality, it lies with patents. Year after year, IBM gets the most U...

Fatigued

Posted on November 20, 2009
6,100,287 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, 2009
In 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, 2009
The 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, 2009
The 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...

Sharpened

Posted on November 10, 2009
Samsung 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...

Incoming

Posted on November 10, 2009
J. 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...

Out of Hand

Posted on November 08, 2009
The 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, 2009
Inventors 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, 2009
Philips 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, 2009
GE 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, 2009
Edwards 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, 2009
Leland 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, 2009
Advanced 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, 2009
In 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, 2009
Janssen 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, 2009
Teva 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, 2009
Kara 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, 2009
Dr. 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, 2009
Vita-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, 2009
AsymmetRx 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...

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