June 30, 2006
Prosecution Estoppel Aide
Momentus Golf sued Swingrite Golf for infringing 5,582,407, a "golf club swing aide." Swingrite swung a district court summary judgment of non-infringement based on prosecution estoppel which narrowed claim scope. Momentus drove to the appeals court (CAFC 05-1614), which gave the district court a mulligan.
June 29, 2006
BusinessWeek has an in-depth profile of Intellectual Ventures in its most recent issue.
June 28, 2006
Palm has agreed to pay Xerox $22.5 million to settle its long-running unistroke patent infringement suit.
June 27, 2006
Fast Track Patenting
On Monday, the USPTO announced an "accelerated examination" program to go from application to grant (or denial) within one year, appeal notwithstanding. The catches are that the applicant bears the examination burden of searching & explaining the prior art, and elucidating enablement & definiteness, as well as limiting the claims under examination.
June 26, 2006
Becoming Less Obvious
This morning, the Supreme Court granted KSR's writ of certiorari in its appeal from infringing Teleflex's patents. At issue is whether prior art anticipation is obvious absent any suggestion or motivation to combine references. Many patented inventions are combinations of what had been previously been known, but the combination applied in a way hitherto unknown.
Agfa and Creo compete in the computer-to-plate (CTP) large-scale printer market. Against Creo, Agfa asserted the patents of its "Galileo" system, for creating printing plates of different sizes: 5,655,452; 5,738,014; 5,788,455; 5,791,250; 5,992,324; & 6,000,337. Creo accused Agfa or inequitable conduct, for failing to disclose similar commercial prior art printing systems, including Creo's. Agfa patents are now found on the obituary page. [CAFC 05-1079]
June 25, 2006
Gemmy Industries and Chrisha Creations compete in the holiday decoration business. Oddly, being competitors, both companies used the same independent sales representative, who tipped Chrisha off to Gemmy's newest products. Gemmy went after Chrisha for imitating Gemmy's inflatable holiday figures, charging copyright and patent infringement (6,644,843), as well as tort claims. Chrisha rebounded with claims of unfair competition & commercial tort, plus winning a summary judgment of patent invalidity owing to the one-year on-sale bar, after Gemmy filed a statement by its president testifying to selling the product over a year before filing for the patent.
June 23, 2006
Busy Day at the CAFC
While the Supreme Court lazily demurred in the LabCorp appeal on Thursday, the Federal Circuit Court of Appeals (CAFC) let loose with four patent rulings.
June 22, 2006
Labcorp's appeal to the Supreme Court (in Metabolite v. Labcorp) was closely watched by all involved in patent law, as it may well have decided the limits of patentability. In a peculiar hush, the Court brushed it aside; the dissent (SC 04-607) was deafening.
June 21, 2006
HP has more than 4,000 patents related to printing supplies, many of those relating to printer ink delivery. Like razors & razor blades, selling ink is more profitable than selling the printers that use them. Hence, HP maintains worldwide monitoring for patent infringement, particularly those related to refilling ink cartridges by other companies that offer generic ink. HP let it be known that Walgreens and Office Max are being jawboned.
June 20, 2006
There'll be a barrel full of howling prosecutor monkeys if the U.S. patent office tries to trim its examination sails by limiting continuations and claims. For multi-faceted applications, declare your own divisions.
Time Warner Strikes Back
June 19, 2006
The Weige Alliance Strikes Back
After a rare China court appeal victory by Pfizer to protect its patent protection for Viagra, an alliance of 13 Chinese generic drug makers have stiffened, appealing to a higher court for the right to thrust into the virility market.
The Supreme Court turned away (05-489) an appeal by GlaxoSmithKline (v. Apotex) for the CAFC upholding an invalidity ruling on a GlaxoSmithKline patent for Paxil®, an antidepressant. The CAFC had ruled, "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." The U.S. Solicitor General had declared the CAFC ruling correct.
June 18, 2006
Hal Wegner reports: "The PTO appears to be moving doggedly ahead with its proposed continuation rules to limit the number of continuation applications by rulemaking without statutory reform. This promises to subject the agency to unprecedented criticism from the practicing bar and key industry segments, particularly biotechnology."
June 17, 2006
VoIP is a cataclysmic technology for landline telephony. Vonage is the early market leader, but, after recently bruising itself with the second-worst IPO in U.S. history, may be cut down by patent infringement, as freshly rabid Verizon joins Sprint Nextel in assertion, while other VoIP patent battles rage and loom.
June 15, 2006
Principles of Equity
z4 Technologies won a jury award of damages against Microsoft ($115m) and Autodesk ($18m) for infringing software piracy patents 6,044,471 and 6,785,825. Microsoft's infringement was found willful. But the same Eastern District of Texas court has ruled (6:06-CV-142), in light of the recent eBay case, that a permanent injunction against Microsoft is not within "the principles of equity."
June 14, 2006
Game Call Totality
Primos sued Hunter's Specialties for infinging 5,520,567 & 5,415,578, for a product used by "outdoor enthusiasts" to deceive wildlife. Trial didn't go well for Hunter's: literal infringement, willfulness, inducement of infringement ('567), and infringement under the doctrine of equivalents ('578). The appeal didn't go well either. [CAFC 05-1001]
Facing down a patent infringement suit by Netflix for online video rentals, on Tuesday, Blockbuster Video threw a temper tantrum in a 44-page counterclaim.
June 13, 2006
Stun-gun maker Taser sued competitor Bestex Monday for infringing 5,078,117, which claims a compressed gas "projectile housing". Bestex shot back with a counterclaim that Taser's supposedly non-lethal weapons were something more.
June 12, 2006
Panduit sued HellermannTyton for infringing 5,998,732. They settled. Then HellermannTyton pushed Panduit's button with a modestly revised design of the original infringing product.
PTO Inequitable Conduct?
NTP continues to pitch a fit over alleged shenanigans by the U.S. patent office in reexamining the NTP patents that netted $612.5 million from RIM.
June 9, 2006
Creative Technology, world leader in sound cards, has stumbled into a patent hornets nest. In response to suing Apple Computer over Creative's so-called Zen patent: 6,928,433, Apple is stinging Creative with multiple patent infringement suits.
June 8, 2006
Return of Unistroke
Xerox has had a hellacious struggle enforcing 5,596,656, the notorious "unistroke" patent. Xerox targeted 3Com’s “Graffiti”, used in the Palm PDAs. In this episode of a continuing saga, the patent lives to fight another day, as Xerox successfully appeals (CAFC 04-1470), at least partly, an invalidity summary judgment, because of "genuine issues of material fact remaining in dispute."
June 7, 2006
Solicitor General Deflated
Tom Goldstein, representing Teleflex in the KSR v. Teleflex obviousness petition before the Supreme Court, filed a supplemental brief deflating the Solicitor General's (SG) certiorari recommendation as vacuous.
June 6, 2006
IT Industry in Fear of Patent Trolls
"The global IT industry lives in fear of sharp operators that file patents and sue others that use the technology or device covered by it to force lucrative settlements. These so-called patent trolls have no production lines or staff of their own - they are usually merely a handful of patent lawyers. Sometimes they simply buy patents from bankrupt companies."
Beijing No. 1 Intermediate People's Court on Friday upheld the validity of Pfizer's patent for Viagra in China, overturning a 2004 decision by China's patent review board. Pfizer's shares stiffened up on the news.
June 5, 2006
Back in 1995, Dow Chemical sued Pactive for infringing 5,424,016 & 5,585,058, which went to accelerating release of a blowing agent from a plastic foam. Pactiv put up something of a fight with invalidity and unenforceability counterclaims, but backed down and settled, with Pactiv signing a licensing agreement and paying royalties. In 2002, Pactiv spontaneously ceased payment.
June 4, 2006
Net2Phone Dials Skype
6,108,704 has some broad claims for point-to-point network communication. Its owner, Net2Phone, is embarking on an enforcement campaign that promises to be center ring of this season's patent press circus, now that the NTP v. RIM match has folded its tent. First shot, Net2Phone dials eBay-owned Skype in a NJ court filing.
June 1, 2006
Liquid Dynamics (LD) sued Vaughan Company for infringing 5,458,414. In the first round, LD successfully appealed an erroneous claim construction. Upon remand, a district court trial found Vaughan willfully infringed, and then in a subsequent bench trial, trebled damages and awarded attorneys fees because of "Vaughan’s behavior as a litigant," as well as then issuing a permanent injunction. Naturally, Vaughan appealed (CAFC 05-1105).
HP, Seiko Epson, and Lexmark settled out of court when Research Corporation Technologies (RCT) came knocking for infringing its image processing patents. Microsoft fought back, putting RCT's patents six feet under, and making RCT pay for the burial.