January 24, 2012
No Credit
Dealertrack sued Huber and
Finance Express, along with other auto
dealers, for infringing its network-based credit application processing
patents: 6,587,841
& 7,181,427.
A biased Judge
Guilford in Central California inexcusably construed "network," which
had been broadly disclosed, as "not including the internet." Defendants
drove away with non-infringement. Other inanity ensued, only some of
which was corrected by the CAFC on appeal.
Posted by Patent Hawk at 7:43 PM | Claim Construction
January 22, 2012
Power Balance
The tripartite balance of power
between the President, Congress, and Supreme Court is only partly
constitutionally enshrined. The courts were cut out of a clear share.
The Supreme Court stole its power base fair and square in Marbury
v. Madison (1803), when it
unilaterally declared to have the authority to review acts of Congress
and determine whether they are unconstitutional and therefore void. The
bluff never got called. But that owes to the Supreme Court being very
selective in punching its weight against the other branches. In Golan v.
Holder (2012), SCOTUS 6-2 refused to call Congress on enacting
copyright provisions retroactively. The new patent act has a slice of
that same cheese, but any challenge is likely only to add to its
ripening. The U.S. police state does as it pleases, the branches of
government holding hands, velvet gloves over mailed fists.
Posted by Patent Hawk at 7:13 PM | Case Law
January 19, 2012
A Kodak Moment
By failing to keep up with the
times, Eastman Kodak drove itself into the ground, declaring
bankruptcy. By stark contrast, competitor FujiFilm has done quite
well for itself, including making wonderful digital cameras. Kodak's
death rattle turned into a whine: "Kodak Chief Financial Officer
Antoinette McCorvey said Apple, RIM and HTC Corp. took advantage of
Kodak's weakened financial condition to drag out litigation over
alleged violations of the company's intellectual property." Take a
picture of this - a decent patent portfolio is no salvation from
clueless management, with which the world is brimming, in every sector
of commerce and government. The exceptions prove the rule. Kodak was no
exception. Those same companies that held Kodak off patent licensing at
arm's length will be the ones ponying up to buy Kodak's patent
portfolio on the cheap in a bankruptcy auction, to use to bludgeon
competitors like a money pinata, just as Kodak tried to.
Posted by Patent Hawk at 1:16 PM | Patents In Business
January 15, 2012
Blood Sample
New Jersey based Abbot sued
competitor Epocal for infringing blood test patents 6,845,327
and
6,896,778,
which it scurrilously claimed to own, though Epocal is the assignee.
Epocal was founded by Dr. Imants Lauks. Lauks had done contractual work
for Abbott's predecessors. The district court rightly found the
contracts that might have given assignment to Abbott expired, as
did the majority of a CAFC panel (CAFC 2011-1024).
In dissent, Judge Bryson displayed his muddle-headed misunderstanding
of contract law, or
more simply his corrupt bias for Abbot, a U.S. corporation, up against
a Canadian
competitor, by arguing perpetual assignment.
Posted by Patent Hawk at 4:34 PM | Case Law
January 11, 2012
Bleeding
Streck sued Research &
Diagnostic Systems (R&D) for infringing hematology control patents 6,200,500
and 6,221,668.
R&D counterclaimed a declaratory judgment action of noninfringement
and invalidity. The two competitors were innovating in stride, but
Streck had the edge, at least with the favor of the courts, which is
really all that matters.
Posted by Patent Hawk at 2:02 PM | § 112
January 9, 2012
Frozen Out
Celsis In Vitro sued Life
Technologies Corp. (LTC) for infringing 7,604,929,
which claims methods for freezing hepatocytes, "an art well-known for
its unpredictability." LTC got a preliminary injunction, which was
appealed, arguing non-infringement and obviousness (CAFC 2010-1547).
The bias was strong against LTC. LTC's infringement expert "really
didn't offer anything in the way of opinions to address the proper
interpretation of the patent's claims." Its claim construction
arguments were "hokum." Its
cited prior art was entirely off point ("not a single one of the
astonishingly large body of literature was devoted to the [relevant]
subject [matter]"). LTC's obviousness expert, having been found making
much of "a wisp of a term that is buried in [an] article," was
"unpersuasive." LTC's obviousness arguments were "nothing more than
second guessing and hindsight." LTC is frozen out.
Posted by Patent Hawk at 8:42 PM | Injunction
January 4, 2012
Senselessy Sassy
MarcTec sued Johnson &
Johnson for infringing 7,128,753
& 7,217,290,
which claim surgical implants. MarcTec sought a claim construction of
"plain and ordinary meaning." That sassy remark cost $4.7 million. The
plain meaning blithely ignored the specification and prosecution
history of a narrowed lynchpin term ("bonded"). Plaintiff expert
witness testimony was declared "junk science." After claim construction
and a summary judgment finding of noninfringment, the judge found the
case exceptional under 35
U.S.C. § 285, finding the assertion
"baseless" and "frivolous," in "bad faith," and awarding J&J all
expenses and attorneys fees. The CAFC affirmed (10-1285).
The lawyers who devised and implemented the strategy went unmentioned.
Posted by Patent Hawk at 2:30 PM | Case Law
January 1, 2012
Hostage
The Wall
Street Journal reports that mobile phone patent cases before
the ITC "hold the economy hostage," because the ITC's sole power is "to
ban imports of foreign products that infringe on U.S. patents." The ITC
was granted this power in the notorious (for its economical
insensibility) 1930 Smoot-Hawley Tariff Act, the passage of which
rightly sent the stock market into a nose dive. More generally, in this
age of rapid technological advancement, patents, regardless of
technology, impose an unjustified tax on consumers and smaller
companies, demolishing competition and snuffing start-up prospects. The
ITC has a built-in bias against foreign-based corporations. The corrupt
courts, including (especially) the CAFC & Supreme Court, find
ways to let the largest corporations prevail (in all cases except where
the corruption would be most egregiously apparent, in which case the
toll to the infringing corporation is lowered). This costly crooked
game needs to be abolished.
Posted by Patent Hawk at 5:19 PM | Patents In Business
December 25, 2011
The Art of the Patent
A
patent disclosure often describes the drawings, which are required
"where necessary for the understanding of the subject matter sought to
be patented." 35
U.S.C. 113. Kevin Price celebrates the art form in The
Art of the Patent. The book is a nicely done picture book,
and well thought out, though slight. The text is juvenille, written for
junior high school level, both in content and gee-whiz attitude. The
opportunity to explain the craft of patent illustration is foregone.
This would have been a much better book with more maturity, and truer
appreciation of skill by exposition, rather than mere illustration.
That might have made the book a reference worth returning to, rather
than something consumed in a sitting or two, and then left on the
shelf. That said, it is the perfect book for the lobby coffee table of
a patent prosecution firm. Perhaps that was the target audience all
along.
Posted by Patent Hawk at 11:43 AM | Prosecution
December 22, 2011
Assembly
Consider
an apparatus claim to an "assembly," with structures "bonded" to each
other at surfaces (4,884,631).
One would construe the claim to be of a single thing. But the courts
are disingenuous, exercising bias by nuanced misconstruction. In this case,
that the claimed assembly "must be separate parts," when the claim
clearly states otherwise. The asserting plaintiff: a mere patent
holder. The defendants: household name corporations Sony &
Lenovo, neither American, but both large corporations facing a
court-despised species: "patent troll." Now there's an excuse for
injustice.
Posted by Patent Hawk at 9:33 PM | Claim Construction
December 18, 2011
Terminal Disclaimer
The
patent office's failure to deliver renders the post office an amateur
shambles, leaving the PTO pros at incompetence. Then there are the
courts, which use case law as a subterfuge, rather than the creation
of a body of consistent case law, as the legal profession naturally
expects. In understated outrage, Hal Wegner considers a recent case of
chemical obviousness before the patent board (BPAI).
Continue reading "Terminal Disclaimer"
Posted by Patent Hawk at 1:06 PM | Prosecution
December 12, 2011
Stabilising Coat
The
corrupt plutocratic governance in this country saves its
skin from mass revolt by long-con shading: maintaining the
appearance of playing it jake, while keeping the dice loaded for the
money players when it matters. The courts in patent cases
do this through nuanced rulings, with the assistance of double-speak
case law. When a dumb judge steps over the line of indiscretion, it is
checked by slicker fixers from above. Case in point: New
Jersey Judge William ("Little Willie") Martini, who likes his martini
dry, but made a ruling that was all wet.
Continue reading "Stabilising Coat"
Posted by Patent Hawk at 1:28 PM | Case Law
December 8, 2011
Patent Debris
Construction Equipment Company (CEC) sued Powerscreen for infringing 5,234,564,
which claims a construction site debris sifter. "The district court
ruled that the '564
patent was valid, enforceable, and willfully infringed by Powerscreen,
and entered final judgment... The Federal Circuit affirmed the district
court's judgment. Constr.
Equip. Co. v. Powerscreen Int'l Distrib. Ltd., 243 F.3d
559 (Fed. Cir. 2000), cert. denied, 531 U.S. 1148 (2001)." That should
have been the end of it, but it was only
the beginning. The USPTO and CAFC demonstrate an abject disregard for
the law and the constitution, as the anti-patent juggernaught rolls on,
leaving only debris from intellectual property.
Continue reading "Patent Debris"
Posted by Patent Hawk at 9:13 PM | Prior Art
December 2, 2011
Beforehand
Teva
sued AstraZeneca for infringing RE39,502,
claiming drug treatment
for lazy meat eaters (dyslipidemia).
But AstraZenaca had manufactured the patented drug first. Summany
judgment of anticipation was the defendant's remedy. Teva complained
that it deserved the patent because AstraZenaca hadn't appreciated what
it had done. No need for that, the CAFC reminds.
Posted by Patent Hawk at 1:11 PM | Prior Art
November 29, 2011
As The Wheel Turns
Docket
Navigator, which is a great patent service, reports: "The
court granted defendants' motion for a new damages trial following
remand even though defendants had not objected to the use of the 25%
rule at trial. "Given the widespread acceptance of the 25 percent rule,
it would not have been unreasonable for [defendant] to have failed to
raise the issue before the Court. . . . [T]he Federal Circuit had
implicitly upheld the use of the 25 percent rule prior to [Uniloc
USA, Inc. v. Microsoft Corp., 632 F.3d 1292 (Fed. Cir.
2011)], and Defendant had no notice that an objection to its use would
have been fruitful in light of the Federal Circuit's previous treatment
of the rule. The law does not speak in absolutes and recognizes that a
litigant might not be aware of the necessity of making an objection at
trial where the great weight of the case law suggests that an objection
is not worth making."
Spine Solutions, Inc. v. Medtronic Sofamor Danek, Inc., et. al.,
2-07-cv-02175 (TNWD November 23, 2011, Order) (McCalla, J.)."
Posted by Patent Hawk at 1:09 PM | Damages
November 23, 2011
Experience
While
the old saw of "practice makes perfect" has teeth, it's a mistake to
equate experience with quality. But some old farts will have none of that
sharp discrimination. Hal Wegner joins a lament over the green young
bucks: "A knowledgeable senior partner in a southwestern United States
firm commented: 'It is a tragedy that we license practitioners with no
real practice or knowledge beyond what can be learned in a two-day
course - particularly because most clients have no way to distinguish
between those that have experience and those that don't.'"
Posted by Patent Hawk at 12:42 PM | Prosecution
Costs
Ricoh
sued Synopsys for infringing 4,922,432.
Synopsys got off the hook seven years later on a summary
judgment motion for noninfringement. The wheels of injustice in this
country turn slowly. Costs go to the prevailing party in civil
litigation. Synopsis filed a bill of costs for $1.375 million. Ricoh
objected, all the way to the CAFC, over document copying and
translation costs, along with transcription and video costs. The
appeals court precedentially ruled: pay up. (CAFC 2011-1199).
Posted by Patent Hawk at 11:20 AM | Case Law
November 21, 2011
Kentucky Bluegrass
The
Federal bench is well stocked with judges too
stupid to rule prudentially, instead indulging their bias.
Case in point: Stephen
Byrne v. Wood Herron & Evans (WHE). Grass trimmer
inventor Byrne sued Black & Decker for infringement in Eastern
Kentucky, getting mowed
down
in summary judgment on non-infringement. The district judge showed
himself a rube in thrall to the corporation by using a plain dictionary
for claim construction rather than follow Phillips v. AWH.
Byrne then sued his firm, WHE, for not getting him the patent coverage
he deserved. The judge then showed blatant bias to the attorneys.
Continue reading "Kentucky Bluegrass"
Posted by Patent Hawk at 4:10 PM | Litigation
November 17, 2011
Lube Job
Money
oils the machinary of politics, and so it should come as no surprise
that hundreds of millions of dollars were spent lobbying the
corrupt politicians on Capitol Hill to pass the "America Invents Act,"
the greatest invention of which is the claim that there was any
improvement to existing law. There wasn't. The law still allows
Americans to patent inventions first created overseas, while
disadvantaging small entity inventors. The First Street Research Group
has done a remarkable job documenting the swirling cesspool more
diplomatically known as U.S. democracy in action, as it pertains to the
patent act. Check
it out.
Posted by Patent Hawk at 10:33 PM | The Patent System
November 15, 2011
The Troll Toll
Corporate
apologist PC
World patronizes its techno-peon readership while
appreciating those that butter its bread - its advertisers. "Patents
are a touchy subject lately thanks to all the litigation going on over
software patents. This is particularly true in the mobile arena, where
companies including Apple and Microsoft have been especially
enthusiastic in their use of patents as leverage over their
competitors. Of course, it's one thing for a company with products to
protect to begin asserting patents against others; it's quite another,
however, for companies to buy and assert patents without producing any
goods of their own." PC World considers intellectual property rights an
alienable right - copasetic for corporations, insufferable for
individuals. PC World's punch line is positively delusional, as well as
statistical fiction: "'Patent troll' is the name typically given to
firms in this latter category, and - according to a new study - they're
depriving technology businesses of more than $80 billion per year, to
the detriment of small inventors and society as a whole." Because
mega-corporations
are inherently sociopaths incarnate, they won't license or
buy patents from small inventors, instead
preferring to legally crush like them bugs after stealing their ideas if an inventor tries to enforce a patent, so inventors must sell their inventions to "trolls" to realize any return.
Continue reading "The Troll Toll"
Posted by Patent Hawk at 10:48 PM | The Patent System
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