December 4, 2008
Rutabaga
Samy
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.
Posted by Patent Hawk at 1:40 AM | Litigation | Comments (0)
Distinction
The
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.
Continue reading "Distinction"
Posted by Patent Hawk at 1:14 AM | The Patent Office | Comments (2)
December 1, 2008
Consequence of Silence
Qualcomm
"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. The appeals
court found "the scope of the remedy of unenforceability as applying to the
world... too broad."
Continue reading "Consequence of Silence"
Posted by Patent Hawk at 11:21 PM | Inequitable Conduct | Comments (0)
Whaling
Two
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. Judge Newman, in a 2-1 decision in
Abbott v. Sandoz
last month, read the tea leaves, leaving dissenting Judge Gajarsa wagging a
worthless finger.
Posted by Patent Hawk at 1:23 AM | Injunction | Comments (0)
November 30, 2008
Frivolous
Triune
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. Due to
prosecution estoppel, Illinois district court Judge Mihm blew off the possibility of doctrine of equivalents. He then pitched the case as frivolous, and
sanctioned Triune, granting defendants attorneys fees and costs.
Posted by Patent Hawk at 2:08 AM | Litigation | Comments (1)
November 27, 2008
Suppression
Hal
"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. [There is a] PTO burial of key
information amongst tens of thousands of at best difficult to access petitions
decisions, as well as a cover-up of PTO delay in reaching decisions on petitions
in patent (as opposed to trademark) matters."
Continue reading "Suppression"
Posted by Patent Hawk at 11:35 AM | The Patent Office | Comments (9)
November 25, 2008
Zemplar
The
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.
Posted by Patent Hawk at 1:03 AM | Litigation | Comments (2)
November 24, 2008
Brass in Pocket
RPX
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.
Continue reading "Brass in Pocket"
Posted by Patent Hawk at 1:50 AM | Patents In Business | Comments (1)
Wireless
Reed
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. Empirical proof, for
the upteenth time, that a Yale graduate can be as smart as a chewed wad of gum
stuck under a student's desk. Hundt is now helping President-elect Obama as a
transition team leader. No indication that Hundt will have anything to do with
patents. So maybe let's give the guy a break.
Posted by Patent Hawk at 12:11 AM | The Patent System | Comments (3)
November 23, 2008
Insect Screen
Anderson
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. Imagine that.
Continue reading "Insect Screen"
Posted by Patent Hawk at 1:53 AM | Prior Art | Comments (0)
November 20, 2008
Plugged
Medegen
sued ICU Medical for infringing
5,730,418, claiming "a needle-free valve for intravenous (I.V.) therapy used
to administer fluids to a medical patient." '418 solved 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. The plug was a disputed
claim term, with the district court granting a narrow construction, specific to
usage context, upon which ICU got a summary judgment of non-infringement.
Posted by Patent Hawk at 4:38 PM | Claim Construction | Comments (0)
Perfection
Throw 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!
Posted by Mr. Platinum at 9:28 AM | The Patent Office | Comments (2)
November 19, 2008
Kitchen Sink Solutions
The 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. Written by an impressive line-up of contributors, including former PTO executives, the report aspires to "stimulate a fresh dialogue on the best ways to improve the PTO's patent examining performance". But instead, it reiterates tired approaches, and contains so many suggestions, probably due to the large number of contributors - all with differing opinions, it is difficult to determine where to even begin this proposed conversation of change.
Continue reading "Kitchen Sink Solutions"
Posted by Mr. Platinum at 9:47 AM | The Patent System | Comments (3)
November 18, 2008
Gamy
In
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.
Posted by Patent Hawk at 10:24 PM | Patents In Business | Comments (6)
Musical Chairs
With
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.
Continue reading "Musical Chairs"
Posted by Patent Hawk at 12:55 AM | The Patent Office | Comments (4)
November 17, 2008
Pay to Play
New
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.
Continue reading "Pay to Play"
Posted by Patent Hawk at 5:43 PM | The Patent Office | Comments (0)
November 15, 2008
Process Flavor de Jure
The
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. Post-Bilski, the BPAI still let Beauregard software
claims pass §101 muster.
Continue reading "Process Flavor de Jure"
Posted by Patent Hawk at 12:16 AM | § 101 | Comments (4)
November 13, 2008
Bad Brew on Good Chemistry
6,365,687
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. Giulio Natta and Dr. Karl Ziegler won the Nobel Prize in
chemistry in 1963.
Continue reading "Bad Brew on Good Chemistry"
Posted by Patent Hawk at 6:40 PM | Prosecution | Comments (0)
November 12, 2008
Discipline
Patent 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. Even a driving violation conviction must
be reported to the PTO.
Posted by Patent Hawk at 2:36 PM | The Patent Office | Comments (2)
November 11, 2008
Jack It
Patently-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.
Posted by Patent Hawk at 2:28 PM | The Patent System | Comments (4)
November 9, 2008
Getting Physical
Non-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.They are clearly not a series of steps or acts to be a process nor are they a combination of chemical compounds to be a composition of matter. As such, they fail to fall within a statutory category. They are, at best, functional descriptive material per se.
Continue reading "Getting Physical"
Posted by Patent Hawk at 4:29 PM | Prosecution | Comments (35)
November 7, 2008
Lame Blaming About Claiming
CAFC 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."
Continue reading "Lame Blaming About Claiming"
Posted by Patent Hawk at 2:02 PM | § 112 | Comments (12)
November 5, 2008
Embarrassing
Blogger
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, attorney for those being peed upon, in what Rick
richly called the "Banana Republic of East Texas." When Frenkel, like some
hapless gay Marine, was outed, thin-skinned Albritton sued Cisco for "shame,
embarrassment, humiliation, mental pain and anguish," along with a "seriously
injured business reputation." Cisco blew back with a comeback that Albritton
should have seen coming.
Continue reading "Embarrassing"
Posted by Patent Hawk at 12:52 PM | Patents In Business | Comments (0)
November 4, 2008
Genus Overclaim
Dr.
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. "A patentee of a
biotechnological invention cannot necessarily claim a genus after only
describing a limited number of species because there may be unpredictability in
the results obtained from species other than those specifically enumerated."
Continue reading "Genus Overclaim"
Posted by Patent Hawk at 9:47 PM | § 112 | Comments (7)
PCTs Down Under
Add 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.
Continue reading "PCTs Down Under"
Posted by Mr. Platinum at 9:09 AM | International | Comments (0)
Divining Bilski
Bilski 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. Only Judges Newman and Rader had a clue. As Judge Newman put
it:
This exclusion of process inventions is contrary to statute, contrary to precedent, and a negation of the constitutional mandate. Its impact on the future, as well as on the thousands of patents already granted, is unknown.
From one judge to another, that's harsh language. None more harsh.
Continue reading "Divining Bilski"
Posted by Patent Hawk at 1:41 AM | § 101 | Comments (16)
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