November 30, 2005
Research in Motion (RIM) was dealt a double blow today in its attempts to settle its infringement fiasco with patent holder NTP. U.S. District Judge James R. Spencer "finds the parties do not have a valid and enforceable settlement". RIM had hoped that a half-page term sheet signed by both parties in March, allegedly settling the dispute for $450 million, was legally binding. That supposed deal fell apart in June. Neither RIM nor NTP have disclosed details of that tentative settlement agreement or why it broke down.
November 29, 2005
Pfizer Trumps PUBPAT
Pfizer patent 5,969,156, related to its blockbuster cholesterol-lowering drug Lipitor, survives a re-examination prompted by the Public Patent Foundation (PUBPAT). PUBPAT claimed victory in narrowing the patent's scope.
Frank Hayes of Computerworld and Peter Zura of 271 patent blog have caught patent visibility fever. The concept is creating a public database of software prior art. Frank went so far as to suggest that Microsoft waste money on it. Hey guys, get a clue.
IP Innovation sued eight companies for patent infringement of 4,877,404. Five settled, but three fought on. The Appeals Court (CAFC 04-1571), in affirming the district court's summary judgment of non-infringement, vindicated the defendants' fighting spirit.
November 28, 2005
PBAI Claim Mixup
eBay has been granted a hearing before the Supreme Court in its effort to avert a permanent injunction for infringing patents belonging to MercExchange. At issue is the general use of injunctions for patent infringement; the Appeals Court thought it appropriate in its March ruling (03-1600).
November 27, 2005
The Power of the Dark Side
Last week, organizations allied with Linux ballyhooed their bequeathed acquisitions of patents. Purists against patents railed at the futility and wrong-headedness of this approach. This commentator was assailed as insane for suggesting that Linux programmers raise their sights to patenting their inventions.
November 25, 2005
The Perfect Crumb
Ms. Ruth M. Siems, 74, first-named inventor on U.S. patent 3,870,803, one of the creators of Stove Top stuffing, introduced in 1972, died Nov. 13 of a heart attack at her home in Newburgh, Indiana.
November 22, 2005
Sugared Preliminary Injunction
The district court granted a preliminary injunction in Pfizer & Warner-Lambert v. Teva & Ranbaxy for infringement of 4,743,450, which Teva Pharmaceuticals & Ranbaxy Pharmaceuticals appealed. And lost. CAFC 05-1331.
November 21, 2005
Don't Mix Claim Types
IPXL Holdings assertion of patent infringement against Amazon.com for its one-click checkout didn't click with the courts. What especially missed the click track was tacking a method onto a system claim. MPEP § 2173.05(p)(II): "A single claim which claims both an apparatus and the method steps of using the apparatus is indefinite under 35 U.S.C. 112, second paragraph."
November 20, 2005
Presiding over the current phase of the NTP v. RIM patent infringement imbroglio, fed-up U.S. District Judge James R. Spencer may rule this week whether the $450 million unconsummated settlement between NTP & RIM was, in fact, consummated, and if not, within a short time thereafter, whether to proceed with an injunction against RIM to halt its Blackberry wireless email service to lesser mortals, excluding, of course, U.S. government workers, who rely on their Blackberries for "essential government services", as if those exist in the form of wireless email.
November 19, 2005
Patent Penguin Exposed
Some of those who care about open source are decrying the charade of touting patent protection for Linux via measly cast-off patent pledges from corporations like IBM. As Florian Mueller, founder of the NoSoftwarePatents campaign that successfully opposed a European patent bill earlier this year, ineloquently put it, "those announcements by the OIN and the OSDL grossly overstate the effectiveness of those partially ill-conceived approaches. By misleading people they don't put us any closer to a real solution, but even further away from one."
November 18, 2005
Clonetech Gets Clobbered
Invitrogen v. Clonetech Labs is a patent law ecosystem unto itself: conception, enablement, written description, and infringement. The factual bases are extensive, resulting in a CAFC 47-page opinion (04-1039), but teasing out the legal reasoning in evaluating the facts is the focus here.
De Novo Mongrel
Smarting from its en banc loss in Phillips v. AWH after winning earlier, AWH has petitioned the Supreme Court to address whether the appeals court has the right to de novo review of claim construction.
November 17, 2005
MicroStrategy sued Business Objects for infringement of its 6,260,050 patent, to which the district court granted summary judgment of non-infringement, hinging on claim construction. Interestingly, MicroStrategy won its claim construction argument, but lost the interpretation of it with regard to infringement (CAFC 04-1572).
Research In Motion (RIM) is claiming satisfaction with its workaround to patent infringement of NTP patents, claiming that an injunction would not affect its Blackberry customers from receiving their wireless emails.
November 16, 2005
Something's amiss. Daniel Ravicher of the Public Patent Foundation (PUBPAT) today took a re-examination shotgun and pointed it Forgent Networks JPEG patent cash cow: 4,698,672, claiming invalidity in light of other, similar patents generated by Compression Labs, specifically 5,451,012, and inequitable conduct for not citing those other patents. Two possibilities: Danny's off base, or attorneys representing more than 80 companies & law firms didn't do their homework.
November 15, 2005
Open Source Fig Leaf
In a gesture to generate warm and fuzzy feelings that Linux has a pretense of intellectual property protection, the "global consortium" Open Source Development Labs has opened its Patent Commons. The Patent Commons is a set of searchable databases listing the "more than 500 patents pledged to date".
Getting A Grip
Surprisingly, the district court couldn't get a grip on the claim term "hand-grip size case" for claim 1 in 6,043,663, owned by Joseph Kapusta, who sued Gale Corporation for infringement of a TV cable test instrument. The appeals court (CAFC) made it look easy (05-1091).
November 14, 2005
The Patented Internet
Causing quite a stir, e-commerce pioneer Amazon has recently scooped three patents, two for consumer reviews (6,963,848; 6,963,850), and one for categorizing query results (6,963,867). That's just a tiny tip of the reality iceberg that the Internet is heavily patented.
Business Methods Patents
The United States Patent and Trademark Office released a set of interim examination guidelines for assessing the patentability of business method patents.
November 11, 2005
Supreme Crackberry Uncle Sam cried to the district judge in the NTP v. RIM case today: "please Daddy, don't take my Blackberry." The U.S. government claimed that "essential government services" could be impaired if wireless services for Blackberries were cut off because of a patent infringement injunction.
Patent Law Seminars
Law Seminars International is sponsoring two upcoming CLE workshops on patent law. The presenters are veteran prosecutors, litigators and corporate counsel.
The Patent Reform Act of 2005 proposes provisions that would change the granting of patents from the so-called first-to-invent system to a first-to-file system. The first-to-file provisions of the Act violate Article I, Section 8, Clause 8 of the United States Constitution, which limits Congress to granting patents only to "Inventors". A system enacted by Congress for granting patents to anyone other than a good faith inventor would be unconstitutional.
Linux Patent Momentum
Tarmac is being laid for a new Linux patent runway: IBM, Sony and Philips have joined forces with Linux distributors Red Hat and Novell to create Open Invention Network (OIN), a company for sharing Linux patents, royalty-free. This could be a harbinger of a huge shift in the software business, as the press is playing it up, or it could just be this year's software buzz.
November 10, 2005
You can only wonder what Boris Volfson has got parked in his garage. What he has in his file cabinet is USPN 6,960,975 (pdf). If you want to sell your anti-gravity powered spaceship with hollow superconductive shield, you better first take a patent license from Boris. Either that, or go intergalactic to evade infringement. As to the patent office granting this, it's a spacetime anomaly indeed.
November 9, 2005
RIM's Silver Lining
Yes, it looks grim for RIM. U.S. District Court Judge James Spencer began this morning the process of deciding whether to enforce an injunction against Research in Motion Ltd. for its Blackberry handheld devices. "I intend to move swiftly in this," Spencer said. "I've spent enough of my life and time on NTP and RIM." But ultimately, it's most likely that RIM will pay NTP and settle the matter.
November 7, 2005
Child's play over a child's car seat goes awry. The Court of Appeals made a rather bizarre ruling in Dorel v. Graco (05-1026), agreeing with the district court in crucial claim construction, but then overruling non-infringement on summary judgment.
November 6, 2005
Patent Notification Smart Response
Receiving a patent notification letter offers options: 1] no response; 2] delayed response, including requesting time for investigation; 3] initiate negotiations; 4] avert further infringement by discontinuing sale of infringing products; 5] initiate a declaratory judgment suit. As to the most appropriate response, consider the source. But always validate.
November 4, 2005
Fisher-Price sued Graco Children's Products, and its parent, Newell Rubbermaid, for patent infringement regarding a collapsible infant swing (6,520,862). The district court threw the case out in summary judgment owing to the asserted claims being indefinite. The appeals court (CAFC 05-1258) had a different swing, giving the patent holder the benefit of the doubt in readily understood technology.
November 3, 2005
Nestec, a subsidiary of Swiss-based Nestlé, has filed patents (WIPO application) in every major market worldwide for "coffee beer". Nestec's non-alcoholic coffee beer smells like strong coffee, has a caffeine kick like a mule, and foams like beer when poured.
November 2, 2005
Supreme Court Chief Justice John Roberts recused himself from further proceedings in the appeal of the Laboratory Corp. of America v. Metabolite Laboratories patent suit, after taking part in the early stages. Big John acknowledged he shouldn't have touched the case to begin with.
November 1, 2005
R&D leading to IP Strategy at Corning
As reported by MIT Technology Review, over the last four years Corning focused a significant percentage of its R&D on a new way of cleaning up Diesel exhaust. While dirty, this is does not appear to be a sexy business. Regardless, it does provide an interesting example of a firm willing to dump the status quo, give up a lucrative market, invest heavily, and establish a proprietary position through IP in a growing market.