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May 30, 2006

Obviousness

In Teleflex v. KSR, the U.S. Solicitor General (SG) filed a vacuous brief in support of patent examiners and judges deciding a patent's validity on whim, with no supportive evidence.

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Posted by Patent Hawk at 9:07 PM | Prior Art | Comments (2)

Tumbling Dice

Reflection on the Supreme Court's mud sling on injunctions in eBay v. MercExchange appears to embolden infringers to fight on. The knock-on effect may be to raise damage awards, fueling outcry for patent reform.

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Posted by Patent Hawk at 12:31 AM | Injunction

May 28, 2006

Patent Crisis of the 1830s

David French, an Ottawa patent attorney for Milton, Geller, has written a fascinating paper on the U.S. Patent Crisis of the 1830s, historical continuity, and parallels to today's patent reform issues.

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Posted by Patent Hawk at 1:45 PM | The Patent System

May 26, 2006

JPEG Compressed

As expected in the normal course of such affairs, the patent office issued a non-final rejection of the 19 broadest claims (of 46) in its reexamination of 4,698,672, the notorious JPEG patent; a reexam prompted by the self-appointed guardian of the patent public interest: PUBPAT.

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Posted by Patent Hawk at 2:15 PM | Prosecution

Interference Inoculation

An interference occurred between 5,770,212 (Falkner) and 08/459,040 (Inglis), both with claims going to preparing a vaccine against poxvirus. The Patent Board of Appeals & Interferences (PBAI) ruled that Inglis was senior party; that is, Inglis deserved the earlier priority date. Falkner appealed (CAFC 05-1324).

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Posted by Patent Hawk at 12:37 PM | Interference

May 25, 2006

Patent Prosecution Highway

Aiming at an international pendency problem, the U.S. and Japan's patent agencies are joining in a patent prosecution cluster farce, together building a so-called Patent Prosecution Highway, hoping applicants filing for patents in both Japan and the U.S. will jump through hoops to get granted claims on either side of the puddle fast-tracked on the other side, whatever that amounts to. Prosecutors: start your engines, and prepare to sit in traffic.

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Posted by Patent Hawk at 12:27 AM | Prosecution

May 24, 2006

Patent Skimming

Mitchell Medina, an evangelical minister with a taste for offshore patent holding companies, is funding his Kenya ministry with patent extortion. Medina has 17 U.S. patents, including one for retrieving dog poop (5,403,050). How apropos.

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Posted by Patent Hawk at 12:53 PM | Patents In Business

May 23, 2006

Rocket Docket Bill

H.R. 5418 arrived late last week, aimed at improving patent jurisprudence at the trial court level.

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Posted by Patent Hawk at 12:40 AM | The Patent System

May 21, 2006

Foul Play?

Symantec filed a complaint in Seattle court Friday against Microsoft for infringing 6,826,661, and for stealing trade secrets. Symatec's attorneys observed, "Over the course of nearly a decade, Microsoft has deliberately and surreptitiously misappropriated Symantec's valuable data storage technologies." This is no slight miscommunication, even as the principals ho-hum the affair in the press.

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Posted by Patent Hawk at 11:40 PM | Patents In Business

May 20, 2006

Cracking The Whip

In a push to have pendency punk'd, the whip comes down at the patent office. As Lynyrd Skynrd put it, "what's that smell?"

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Posted by Patent Hawk at 1:10 AM | The Patent Office

May 19, 2006

Snow Plow

Frank Iraci received 4,807,375 for a electronic adjustment device to automatically raise a snowplow when a truck with an attached snowplow backed up. The device has had considerable market acceptance, but Frank had a tough time plowing his way through court to a meager return against infringer Meyer-Diamond.

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Posted by Patent Hawk at 2:37 PM | Litigation

Injunction Juncture

Speculation is bubbling about what impact the MercExchange v. eBay Supreme Court ruling is going to have. With regard to injunctions, the general forecast is muted, though it may cast a long shadow over posturing and the quality of asserted patents.

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Posted by Patent Hawk at 12:37 AM | Injunction | Comments (4)

May 17, 2006

Xboxing

Monday, Microsoft counterclaimed with 10 software patents against Lucent in its Xbox patent suit. Constantly barraged for patent infringement by non-product companies, Microsoft howls for patent reform. A quieter affair, this is just business as usual.

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Posted by Patent Hawk at 10:33 AM | Litigation

May 16, 2006

Means-Plus-Function Claims

Applied Medical Resources sued United States Surgical for infringing 5,385,553, a surgery facilitating device, the latest suit in a long line of litigation. In its ruling, the CAFC enunciated a precise process for determining infringement of a means-plus-function claim.

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Posted by Patent Hawk at 10:03 PM | Claim Construction

Patent Office Corruption

NTP alleged that Research in Motion (RIM) sought to illicitly influence the patent office's reexamination of NTP patents during the NTP-RIM patent spat that finally settled with RIM paying NTP $612 million. Sure, RIM chief Jim Balsillie is that kind of guy. But, according to NTP, top officials at the patent agency, including USPTO head Jon Dudas, violated federal rules in colluding with Balsillie, and, naturally, trying to cover it up.

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Posted by Patent Hawk at 12:09 AM | The Patent Office | Comments (1)

May 15, 2006

Injunction Mud

The U.S. Supreme Court, in a deceptive unanimous decision, has muddied the basis for granting a permanent injunction against patent infringers, with self-subversive concurring opinions tacked on. In the closely watched case of MercExchange v. eBay, eBay will be allowed to continue to infringe, at least for now.

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Posted by Patent Hawk at 12:49 PM | Injunction | Comments (9)

May 14, 2006

Patent Payoff

Bruce Bigelow of the San Diego Union Tribune newspaper wrote a well-researched article May 14 about profit-optimizing business strategies revolving around patents, and the concept of an IP community.

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Posted by Patent Hawk at 5:41 PM | Patents In Business

Patent Pejorative

A patent propaganda coalition is forming, euphemistically named: The Coalition for Patent Fairness. CPU-reliant (common misnomer: high-tech) companies want to incite self-interested change of patent laws, lobbying Congress to gut patent enforcement. Expect to hear even more about the patent pejorative in the woodpile: patent trolls.

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Posted by Patent Hawk at 12:00 AM | Patents In Business | Comments (1)

May 11, 2006

Host Interface

Inpro II Licensing sued T-Mobile & Research in Motion for infringing 6,523,079, losing on a narrow claim construction of "host interface," and doing no better on appeal (CAFC 2006, 05-1233). Inpro should have known better.

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Posted by Patent Hawk at 12:14 PM | Claim Construction

May 10, 2006

Patent Auction Plus

CNET News reports that the April Ocean Tomo auction results improved in after-auction selling. While only 26 of the 78 patent portfolios went off the block during the auction, accruing $3 million, five lots in after-auction sales nabbed another $5.4 million. According to Ocean Tomo, that's a transaction rate of nearly 40%; not a bad batting average.

Posted by Patent Hawk at 9:05 PM | Patents In Business

Discovery Chill

The wake of the CAFC ruling May 4 regarding privilege & discovery in TiVo v. EchoStar is even now being felt. The trend will be for law firms and in-house counsel to be very circumspect in their communications, even internally, surrounding patent infringement opinions; a lot less will be discoverable documentation, email included.

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Posted by Patent Hawk at 11:48 AM | Litigation

Amish Attitude

Andis Kaulins has declared "A Constitutional Chaos" over granting patents for high-tech inventions. "Software patents... are garbage." The patent office is "clueless," as is the entire U.S. legal community, including Congress and the courts.

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Posted by Patent Hawk at 12:06 AM | The Patent System | Comments (2)

May 9, 2006

Up the Creek

Old Town Canoe sued Confluence Holdings for infringing 4,836,963, which goes to a process for making plastic boat hulls by rotational molding. Confluence got a summary judgment of non-infringement based upon claim construction, but lost counterclaim motions on invalidity and enforceability. So the parties appealed the rulings that went against them. The CAFC (05-1123) found the district court had been hasty in some of its summary judgment rulings, glossing over disputable facts. And a well-reasoned dissent argued that the whole case was overdone.

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Posted by Patent Hawk at 2:24 PM | Litigation

May 8, 2006

Privilege & Discovery

In the TiVo v. EchoStar case which TiVo recently won, the issues of document revelation with regard to opinion counsel & attorney-client privilege, and discovery of work-product documents, came into play. In a ruling May 4, the appeals court (Misc-803o) clarified: [1] if relying upon opinion counsel to avoid willful infringement, attorney-client privilege is completely waived for the relevant subject matter; [2] work-product discovery is limited to determining the "infringer's state of mind". The court stated: "The attorney-client privilege and the work-product doctrine, though related, are two distinct concepts and waiver of one does not necessarily waive the other." "[D]ocuments analyzing the law, facts, trial strategy, and so forth that reflect the attorney’s mental impressions but were not given to the client... [are] not discoverable."

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Posted by Patent Hawk at 11:22 PM | Case Law

May 6, 2006

Trolls, Toads & Rats

Some weekend rambling about patent trolls, toads and rats, beginning with patent troll James Fergason, aiming to help other patent trolls. Way to go James.

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Posted by Patent Hawk at 12:12 AM | The Patent System | Comments (5)

May 5, 2006

The Post Office, Patent Infringer

Paymaster Technologies sued the U.S. Post Office in 2002 before the U.S. Court of Federal Claims for infringing 5,292,283. Like any ornery patent infringer, USPS fought tooth and nail, finally losing before the appeals court yesterday (CAFC 05-5025).

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Posted by Patent Hawk at 9:05 PM | Litigation

May 3, 2006

RIM's Countermove

Wednesday, RIM filed a countersuit against Visto in a different Texas district, seeking declaratory judgment, and attempting to change venue. Huh?

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Posted by Patent Hawk at 11:10 PM | Litigation

May 2, 2006

Canon's Cheap Shot

St. Clair Intellectual Property Consultants, with a portfolio of 22 U.S. patents, many oriented towards digital cameras, is having much success in its enforcement campaign, racking up jury wins against Fuji for $3 million, Sony for $25 million, and most recently Canon for $34.7 million. Eastman Kodak, HP, and Nokia are on the docket. The Canon case was nothing short of outrageous.

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Posted by Patent Hawk at 4:34 PM | Litigation

May 1, 2006

RIM Shot Again

Visto, a maker of wireless email software, has asserted four patents against hapless Research In Motion (RIM). RIM is already blathering about non-infringement and invalidity. NTP, which successfully pinned a $612.5 patent infringement tab on RIM, holds a minority stake in Visto.

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Posted by Patent Hawk at 3:26 PM | Litigation