April 30, 2005
A Close Shave of Claim Construction
Gillette owns 6,212,777, for wet-shave safety razors with multiple blades. Specifically, claim 1, the only independent, cited "a safety razor blade unit comprising a guard, a cap, and a group of first, second, and third blades." Gillette sued Energizer Holdings for patent infringement for coming out with a four-blade razor product. Count the blades, and therein the problem lies.
April 29, 2005
Paying for Patents on 3G Phones
The British market research firm Informa announced on Thursday that patent royalties on 3G mobile devices could significantly impact the wireless industry and, in particular, hurt smaller device vendors (those without patents).
April 28, 2005
Behind The Catcalls For Reform - Post-Grant Opposition
Corporate crusaders for patent reform seem to have political momentum for post-grant patent opposition through a so-called "administrative procedure", separate from infringement litigation. The obvious motivations are for infringers to short-circuit the infringement litigation process, become the plaintiff, and save themselves money, all at the expense of the patent holder. As an ace hole-card, it also weakens the commodity market for patents. Most significantly and insidiously, it corrupts the patent system.
April 27, 2005
Behind The Catcalls For Reform - Granting Junk Patents
There are two supportive bases for patent reform: 1) a presumption of junk patents - that is, that many granted patents are invalid in light of the prior art; 2) the cost of enforcement - actually, from the so-called corporate reformers' viewpoint, the cost of defense. In this installment, disabusing the notion that the patent office grinds out junk.
April 26, 2005
Patent Infringement Damages Out of Line
Last Saturday, in advocating changes in patent law to grant leniency for patent infringement, Sanjay Prasad, Chief Patent Counsel for Oracle, asserted that the courts have been awarding damages for infringement that are out of line with the patent's real value. "No reasonable business person would ever agree to" pay those sums in licensing fees, Prasad observed at a conference sponsored by the Association for Competitive Technology, to which a murmur of "duh" was heard in the room. "There's a large distortion between the value provided realistically, and how that comes out in court." Sanjay presented no evidence to support his assertion.
April 25, 2005
The Compressed Picture
Dialing back to 1986, here's claim 1 of 4,698,672 - a little ditty about run-length encoding data compression that's spelled big money.
April 24, 2005
Patent Economics: Part 5 - Theories
There are several different interrelated theories about patents. Some consider a patent as a natural right, to be able to own and profit from one's invention. In securing a property right, a patent solves the inventor's dilemma, providing a commercial platform for promoting technological innovation, even though some see patents as an obstacle to innovation. Certainly a patent is a business tool, as it offers potential for profit through licensing, and the prospect of a defensive shield against patent assertion by others (countersuit).
April 22, 2005
The medical device maker Medtronic announced that it had a chiropractic adjustment, and is feeling much better. The condition arose from patent infringement, and, apparently, sitting on a fat wallet. Oh, what a relief it is.
Ever wonder what could happen if the patent office made a mistake in publishing a patent claim? Can it be fixed?
In Hoffer v. Microsoft (04-1103), the district court felt powerless to correct an obvious misnumbering by the patent office, but the appeals court had some whiteout.
April 20, 2005
§112 Rocket Science
Space Science/Loral received a patent (4,537,375) for saving fuel in rocket thrust maneuvers to maintain orientation and attitude of a satellite in space. Gravitational tugs by the earth, sun, and moon require positional adjustments. Things just don't sit still in space.
The claimed maneuver was a two-step process: fire thrusters once, consider what that did, then adjust if necessary. Lockheed convinced the district court in a summary judgment motion that there was not sufficient disclosure of the considering and adjusting portions of the claim. The Court of Appeals fired their thrusters with a different attitude.
April 17, 2005
Patent Economics: Part 4 - Incentives
There are at least four incentives that justify a system of granting patents. These incentives are: (1) an incentive to invent; (2) an incentive to disclose; (3) an incentive to commercialize, and (4) an incentive to workaround. The core argument in justifying a patent system is that these incentives would be lessened or lacking without patents.
April 15, 2005
Jackass Kicked in Texas
Kermit Aguayo and Khanh Tran are having a bad day. Their patent, 5,283,943, claiming automated surface mount placement of components on printed circuit boards, got shot down by a jury in South Texas. Every stinking claim invalid.
For those of you holding a patent grant and dreaming of El Dorado, before sallying forth for an enforcement action, hire a professional prior art searcher first to suss out whether the patent color is gold or brown (and reeking).
Patent Economics: Part 3 - The Inventor's Dilemma
Given that substitution inherently limits the monopoly power of patents (as explained in part 2 of this series), here we consider how patents provide economic benefit to a patent owner and society. Consider the counterfactual case of invention in a society that does not offer a patent grant. An inventor without access to patent protection faces the inventor's dilemma.
April 14, 2005
Microsoft - Serial Patent Rapist
If you flinched at the title, well, me too. The truth hurts. Alas, there's only one way to connect these dots. As Southside Johnny would say, "sad story, but every word is true."
April 13, 2005
Prior Art Search Techniques
Searching for patent prior art, either for patentability, or in an invalidity search, can be abbreviated, and its quality assured, by applying skillful techniques.
April 12, 2005
Claim Construction Instruction
Nazomi Communications sued Arm Holdings for patent infringement, and the Northern California District Court pitched the case on summary judgment of non-infringement based on a disputed claim construction. The rub that led to appeal was for one basic computer term - one term which gave the U.S. Court of Appeals for the Federal Circuit (CAFC) an opportunity for claim construction instruction. [Nazomi Communications v. Arm Holdings (04-1101)]
April 10, 2005
Seeds of Doubt Dispelled
Over the objections of Swiss biotech firm Syngenta AG and Greenpeace Deutschland, the European Patent Office confirmed Friday that Monsanto can patent herbicide-resistant seeds in Europe. Monsanto has over two dozen herbicide-resistant seed-related European patents. The patented seeds, applicable to corn, wheat, rice, soybean and flax, are doing a booming business. The genetic modification makes the seeds resistant to Roundup, the herbicide that makes Agent Orange seem like plant food.
April 8, 2005
Patent Economics: Part 2 - Substitution
A monopoly can only be sustained if there is no substitute for a good. For example, for a consumer wanting to rid its household of mice, in a competitive market, mouse traps are cheaper than keeping a cat. But a monopolistic mouse trap maker could charge only up to the point where it was cheaper to have a cat, or whatever else works as a substitute for a mouse trap. So, a monopolist's exclusionary power only extends as far as the limited availability of substitutes for the good over which the monopolist has control. The more substitutes that are available, the more competitive a market becomes. Substitution is a key aspect in considering patents as a monopoly.
April 7, 2005
Back From the Dead & Bigger Than Ever
Shot down in cold court Monday, badass Mosaid Technologies is back in the saddle and blazing hot patent lead again.
Play It Again, TiVo
TiVo, which makes digital video recorders (DVR), announced that it has acquired six U.S. patents from IBM. TiVo said that the acquired patents cover audience measurement, integrating Internet access with TV, automatic recording scheduling, content screening, searching, and program guide enhancements.
April 6, 2005
Patent Economics: Part 1 - Market Monopoly
This begins a series on the economics of patents. This first installment explains the economics of market monopoly, to be contrasted with patent economics in succeeding installments.
A patent is widely considered a monopoly, and though it smacks of truth, the reality is not so simple. Monopolies are generally ill-favored, as, at least in theory, they raise prices above what would naturally occur in a competitive market. Anti-patent ravers stake their rationale against patents as representing monopoly power that unduly costs society. A further contention, espoused most fervently nowadays by anti-software patent advocates, is that patents have the perverse effect of retarding innovation, rather than actually encouraging it. With some grounding in economics, specifically market monopoly, and an understanding of the economic nature of patents, one sees the "evil patent monopoly" viewpoint as gross overstatement.
USPN 6,872,645, titled "Methods of positioning and/or orienting nanostructures", just issued. Its owner, Nanosys, is tooting its tiny horn about it. 6,872,645 lays claim to nanowires longitudinally oriented along fluid-washed channels on semiconductor substrates.
April 5, 2005
Patents Move Markets
While it's not news that patents move company valuations, a couple of recent examples are noteworthy: Mosaid and Crucell N.V.
A company wanted a patentability search done, but didn't want patent prior art searched, only applications and periodicals. The concern was that a patent search could reveal patents which the company was infringing. To avoid willful infringement, the reasoning went, avoid searching patented prior art. That is not the way to go about patenting.
April 4, 2005
35 U.S.C. §122 covers publication of patent applications. Generally, patent applications are published after 18 months of filing, but an applicant my request earlier publication. Conversely, if the application is for a U.S. patent only, the applicant may launch a patent submarine, with no publication prior to issue. Why do such a thing?
April 3, 2005
Neem Saved From Biopirates
As a backgrounder, the Neem Foundation has a nice site explaining, well, you know.
On Friday, April 1, 2005, the European Patent Office (EPO) upheld an invalidity revocation of a processing patent related to the fungicidal properties of neem seeds, granted to W.R. Grace and US Department of Agriculture (USDA). The EPO rejected W. R. Grace's appeal against an initial May 2000 ruling, upholding India's plea that the medicinal plant was a part of traditional Indian knowledge.
April 1, 2005
There is a constant stream of diversion in the press - diversion from the real to news. Diversion in the form of creating the bad and howling at it, because good is not news.
The patent system is broken. Software and business methods patents are bad. Patent trolls are raping legitimate businesses. Do you smell someone cutting a self-serving diversionary stinker? If not, read on.