Patent Law

Bad Brew

Posted on February 17, 2008
Economist 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, 2008
Yes, 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, 2008
Senators 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, 2008
Keith 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...

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Shifting Liability

Posted on February 14, 2008
Money 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, 2008
The 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, 2008
Back 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, 2008
Patent 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, 2008
The 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, 2008
Over 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, 2008
Enablement 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, 2008
Petition 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, 2008
Transocean, 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, 2008
CIBA 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, 2008
WARF, 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, 2008
In 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, 2008
As 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, 2008
The 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, 2008
The 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, 2008
An 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, 2008
Patent 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, 2008
Dakota 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, 2008
Wilson 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, 2008
Senate 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, 2008
Linux 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, 2008
USPTO 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, 2008
In 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, 2008
The 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, 2008
USPTO 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, 2008
Two 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...

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