May 30, 2006
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.
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.
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.
May 26, 2006
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.
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).
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.
May 24, 2006
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.
May 23, 2006
Rocket Docket Bill
H.R. 5418 arrived late last week, aimed at improving patent jurisprudence at the trial court level.
May 21, 2006
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.
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?"
May 19, 2006
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.
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.
May 17, 2006
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.
May 16, 2006
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.
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.
May 15, 2006
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.
May 14, 2006
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.
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.
May 11, 2006
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.
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.
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.
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.
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.
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:  if relying upon opinion counsel to avoid willful infringement, attorney-client privilege is completely waived for the relevant subject matter;  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."
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.
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).
May 3, 2006
Wednesday, RIM filed a countersuit against Visto in a different Texas district, seeking declaratory judgment, and attempting to change venue. Huh?
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.
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.