February 27, 2006
Posilac is a cow growth hormone sold by Monsanto, one of those nasty things naturalists who are smart enough not to drink milk complain about being in milk. But I digress. 6,692,941 covers that bovine somatotropin. Too bad for Monsanto, having the product, but not the patent.
Inequitable Conduct - Intent
S&G Tool Aid sued Astro Pneumatic Tool for threatening its customers with patent infringement (5,259,914), over a portable car sticker remover. S&G went whole hog, seeking declaratory judgment of non-infringement, inequitable conduct, unfair competition, tortious interference, false marking, and violations of the Lanham Act & New Jersey Fair Trade Act to boot. S&G got an inequitable conduct summary judgment ruling out of district court, "determining that there was clear and convincing evidence of materiality and intent to deceive" the patent office. The appeals court said (CAFC 05-1224), not so fast.
February 25, 2006
Patent Trolls Feed on Technology
It must be true. I saw it on TV. CBS News got the skinny on how the patent system is broken, resulting in patent trolls pillaging companies with their patents on "technology ideas." Say it ain't so.
February 24, 2006
RIM's Horns of Dilemma
In the long-awaited NTP v. RIM hearing before Virginia district judge James Spencer, Spencer lamented RIM's bullheaded refusal to settle, and admonished RIM for providing an "inconsistent" argument against ordering an injunctive shutdown of wireless email for Blackberry devices. Fueled by the combative ego of leader Jim Balsillie, RIM just doesn't get it.
SmithKline Beecham, maker of Paxil®, an anti-depression drug, is now self-medicating over the CAFC (04-1522) invalidating one of its patents, 6,113,944, claiming a process for making the drug. '944 was a follow-on, but not a continuation, of the original patent for the drug, 4,721,723. The appeals court ruled that "once a product is fully disclosed in the art, future claims to that same product are precluded, even if that product is claimed as made by a new process."
February 23, 2006
China Patent Bootstraps
People's Daily Online reports that over 90% of Chinese companies have no patent application experience, and only .03% have any intellectual property rights.
February 22, 2006
Patent Office Blows Patent Reform Raspberry
Patent Commissioner John Doll's viewpoint on the need for Congress to pass patent reform legislation: no thanks, we've got it under control. To patent applicants, Doll says: "do some work for us."
Seiko Epson has a well-established corporate policy of proactive patent licensing. That proactivity is again evidenced by suing 24 companies before the U.S. International Trade Commission (ITC), and in Portland, Oregon district court for design and utility patent infringement over printer ink cartridges. Up to 30 patents are involved in these actions.
Lawman Armor sued Winner for infringing design patent 357,621, which claimed an ornamental design for the sliding hook portion of a vehicle wheel lock. After claim construction, the aptly-named Winner successfully moved for summary judgment of non-infringement based upon invalidity. The appeals court (CAFC 05-1253) locked it up.
February 19, 2006
While the number of patent litigations has doubled between 1991 and 2004 before dropping 11% last year, the percentages of outcomes remain steady: most cases settle.
February 17, 2006
In 2001, Mag-Nif sued Royal Sovereign for 5,902,178 & 6,165,063, claiming devices which sorts coins by denomination into different tubes through chutes. They settled. But Mag-Nif became unsettled with Royal Soverign's new "FS-3D" coin sorter. Ultimately, the CAFC had to sort it out (05-1346).
On The Good Foot
Why pay $160 for a pair of Nike AirMax 360 running shoes? So cushy. What cushions the shoe so well is covered in at least 19 patents that comprise Nike's "Shox" cushioning technology, launched in 2000. Now Adidas is about to take a lesson in patent infringement. Class opens (where else) in patent plaintiff paradise: the Eastern District of Texas.
February 15, 2006
Curtiss-Wright Flow Control, accusing Velan of infringing 6,565,714, caught a break with a preliminary injunction. On appeal (05-1373), the CAFC had a qualm with the claim term "adjustable," finding the trial court's construction way outside the context of the specification, and so broad as to be meaningless; thus vacating the injunction and remanding. What's more, we learn the secret formula for Coke.
Indisputable Inequitable Conduct
Ferring B.V. sued Barr Labs for infringing 5,047,398, claiming an oral antidiuretic. Barr was granted summary judgment for inequitable conduct, as both materiality and intent were indisputable. The appeals court concurred (05-1284).
February 14, 2006
The Fountain of Junk Patents
Got a call from a U.K. solicitor (attorney) for a prior art search. Any art up to the day before the patent filing date would invalid the patent. By comparison, what we quaintly regard as prior art is a statutory sham designed to create junk patents, particularly in rapid-development industries such as software. The U.S. patent emperor is scantily clad, and Congress is the tailor.
February 13, 2006
Jackson Lenford of Right to Create bemoans that the USPTO is the only U.S. government agency to make a profit, and will be allowed in FY2007 to keep what it earns. "If... the USPTO relies only on funding from patent applicants, it is beholden to no one but patent holders, and becomes the poster-child example of regulatory capture." The only capture in this is a mind like a steel trap.
February 12, 2006
Never Reset, Never Surrender
China Daily reports a woe-is-me story of Zhejiang Dongzheng Electrical, a self-proclaimed innovator being pummeled by U.S. running dog Leviton over 6,246,558, covering fault protection of resettable circuit devices. Like a raccoon on the highway at night, taking a page from the playbook of patent litigation-savvy Research In Motion (RIM), Dongzheng vows to fight on.
February 10, 2006
AT&T claims a patent lock on MPEG-4, the current standard for squishing high-quality video into grainy images, and is putting the squeeze on MPEG purveyors while Ma Bell spins in her grave.
Crackberries thumb away emails on their Blackberries while awaiting proceedings beginning February 24 in Virginia district court before a fed-up Judge Spencer towards an injunction against RIM for infringing NTP patents; an injunction which would shut down RIM's Blackberry wireless email service in the U.S. for all but government workers, unless RIM pulls a workaround rabbit out of its hat, which RIM says it has.
February 8, 2006
Dr. John Mercer was the supposed inventor of 5,767,678 & 6,232,780, claiming technology for horizontal drilling by which utility lines can be laid, patents assigned to Digital Control. These patents were asserted against The Charles Machine Works (CMW), aka DitchWitch, which tried burying Mercer's patents by inequitable conduct, and may yet succeed.
Issa's Rocket Docket
Some details are emerging of Rep. Congressman Darrell Issa's nascent bill to accelerate and improve patent litigation quality in U.S. district courts. In essence, beginning with a pilot program, the plan is to create voluntary patent rocket dockets in districts, an extension of what has already occurred through supply and demand.
February 7, 2006
Litigation Big Fish
IP Law 360 reported the patent firms with the most new litigation cases in 2005. The purely quantitative statistical survey looked at the number of times a firm was hired as patent counsel in new cases.
February 6, 2006
International Patent Filings Update
The World Intellectual Property Organization (WIPO) issued press release 436 from Geneva on February 3. Yep, it's the one we've all been waiting for. No weapons of mass destruction, but worthwhile reading if you're inclined to know the annual summary status of international patent filings.
U.S. Patent Court
Rep. Darrell Issa (R-Ca) is mulling a patent trial court for the United States. Britain established its Patent County Court in 1988, and Japan set up its Intellectual Property High Court in April 2005. The European Commission is contemplating a continent-wide patent court system. Should the U.S. follow suit?
February 3, 2006
As Monty Python once quipped, no one expects the Spanish Inquisition, but here it is. In a second round of protracted litigation to establish priority of invention, i.e., legal first-to-invent status, Medichem v. Rolabo square off before the CAFC (05-1179, -1248) over the credibility of lab notebooks related to discovering the patented process for making loratadine, the active ingredient in the blockbuster allergy medication Claritin®. This is the second ruling in as many days from the Appeals Court relating to the anachronistic alchemy of having patent priority determination subject to tortuous legal complications at ungodly cost. More simply put, here's another compelling argument for a first-to-file patent priority regime.
February 2, 2006
PubPat Clogs the Patent Office
In what promises to be another public flogging, the patent office is going to reexamine Forgent Network's JPEG patent (4,698,672), which has less than a year of life left in it, and has yielded over a $105 million in licenses from over 40 companies, with another 44 currently on the docket for infringement, all of whom have had a chance to douse the patent with invalidity assertion before the courts. Officious PubPat, which specializes in rubbing patents' noses in reexam, instigated, and the patent office, feeling the need nowadays to be ever so politically correct, bit.
First to Invent
The bizarre patent interference case of Brown v. Barbacid, going on now for over 10 years, with miles to go, vividly illustrates the difficulty with this country's first-to-invent rule. The brouhaha is over who invented an enzyme assay first, arguing over the adequacy of lab notebooks. Is this any way to decide date of invention? Only the U.S. thinks so. What's wrong with a simple patent filing date? Nothing, says the rest of the world.
February 1, 2006
Pason Systems faced down Varco over a preliminary injunction for infringing 5,474,142, owing to an unfavorable claim construction in district court that dimmed the prospect of Varco eventually succeeding. Varco got the Appeals Court (CAFC 05-1136) to drill deeper.