August 31, 2006
There has been acrimonious disagreement at the Patent Office over the Millennium Agreement, a 2001 contested contract that was supposed to maintain a 10%-15% pay scale differential between examiners and your average government bureaucrat; the point being, to retain highly educated and skilled examiners, thus minimizing turnover and maximizing patent quality. It hasn't worked out that way, because agency management reneged.
August 30, 2006
One might get the impression, for all the ruckus over KSR v. Teleflex in front of the Supreme Court, that 35 U.S.C. §103(a), the prior art obviousness clause, is broken. Not so. §103 is badly drafted, but it has teeth as currently interpreted by the Appeals Court. If you think its teeth need further straightening, consider this orthodontics case: Ormco v. Align (CAFC 05-1426).
August 29, 2006
Unbiased rational logic is a rare bird. Our minds offer a veneer of abstraction processing over a reptilian brain bathed in emotional opium. With regard to patent law, the bias towards impermissible hindsight in denigrating invention is incontrovertible. To wit, the vast majority of amici briefs in KSR v. Teleflex have been displays of wishful thinking at best, corrupt rhetoric at worst; regardless, confusion of delusion that hindsight can be hindered by anything other than objective evidence.
August 27, 2006
The Washington Post reports today "an angry backlash from the academic computing community" for Blackboard asserting its freshly minted 6,988,138 against Desire2Learn. The worry is, of course, the broad claims of '138. Not reported is whether the academic computing community has enrolled for anger management help.
August 25, 2006
Patented News Vans
This is but the first shot of what may become an all-out patent war on news vans: those mobile TV studios-in-a-van, with a satellite uplink, for on-the-spot news coverage. Indiana-based Trans Video Electronics (TVE) sued Echostar Tuesday in Northern California for infringing 5,903,621 & continuation 5,991,801. The entire TV news business is worried.
Average patent pendency is now at 27 months, with high-tech wait times nearly double that. Some inventors have waited 12 years before getting their patent grant. There is a serious shortage of examiners, and turnover is high: only 45% of current employees have been there for over five years. But the patent office has a plan for the next five years.
Netflix sued Blockbuster for patent infringement in April, and Blockbuster retorted in countersuit that Netflix was just attempting monopolization via unenforceable patents; unenforceable owing to inequitable conduct: that Netflix didn't disclose known prior art. Netflix tried, unsuccessfully, to get the judge to dismiss the countersuit.
August 24, 2006
Apple Gets Creative
Apple Computer rather graciously ended its dispute with Creative Technology, apparently perceiving merit in Creative's iPod-related patents; gracious to the tune of $100 million.
August 23, 2006
Memory Mudfight Stayed
The ongoing DRAM brouhaha between Hynix and patent-holder Rambus is chilling out, pending a Federal Trade Commission (FTC) decision in its antitrust investigation against Rambus.
August 22, 2006
The Microsoft Way
On Friday, Eastern District of Texas Judge Leonard Davis upped the ante by $25 million that Microsoft must pay for willfully infringing z4's product activation patents, as well as paying an additional $2 million towards z4 legal fees. The judge's opinion, largely unreported in the press: Microsoft is an incredible weasel.
Timeline Grinds Microsoft
In 1999, Microsoft took a limited license with Timeline for its patented database technology. The scope of that agreement has been contentious, the term "agreement" used loosely, as Timeline & Microsoft have wrangled in court over it ever since. Now Timeline has terminated the license, accusing Microsoft of breaching its terms by inducing infringement, and is suing Microsoft for damages.
August 21, 2006
Sailing Towards Patent Reform
The strongest push for patent reform came from large computer technology companies; as serial patent infringers, troubled at continually facing the prospect of injunctions granted by the CAFC nearly automatic like a dog. The solution worth bribing for - get Congress to pass a new law gutting patent enforcement. Then came the Supreme Court in eBay v. MercExchange, "case law" being the accurate euphemism, which took the wind out of the sails for legislative patent reform.
August 20, 2006
In the months following the Supreme Court eBay v. MercExchange decision, recent rulings demonstrate a revised trend in granting injunctions, most notably recognizing marketplace clout. Granting a permanent injunction to TiVo against competitor EchoStar, though stayed for the time being, illustrates the power injunctive relief can provide.
August 18, 2006
Cook Biotech, exclusive licensee, and Purdue Research Foundation, owner of 5,554,389, sued ACell for infringement. In the appeal (CAFC 05-1458), there was a significant issue of claim construction, an interesting insight into seeking damages, and an applied corollary to the "all limitations" rule in figuring infringement under the doctrine of equivalents.
August 16, 2006
The Scruggs brothers planted, without license, Monsanto genetically modified, herbicide resistant, soybeans and cotton. Monsanto asserted 5,352,605; 5,196,525; and 5,322,938 against them. Ornery, the Scruggs went down fighting, in trial and on appeal (CAFC 04-1532).
August 15, 2006
In a classic case of overreaching, E-Pass Technologies was shot down for the second time for trying to pose a multi-function electronic card, claimed in 5,276,311, as a personal digital assistant (PDA), first suing Palm unsuccessfully, then Microsoft and HP. In the Southern District of Texas, Judge Hoyt ruled in favor of Microsoft & HP, that PDAs were not "cards," that non-infringement was so obvious as to be a matter of law, and thus granting summary judgment.
August 14, 2006
Claim Construction Black Hole
Hal Wegner uncorks an update to his 2005 paper, "The Non-Precedential Claim Construction Black Hole," elaborating on: 1) the mess of non-precedential Federal Circuit rulings related to patent claim construction; 2) the blanket of secrecy maintained by the USPTO Patent Board of Appeals & Interferences; 3) claim construction as a matter of law affords flip-flop arguments on appeal.
August 11, 2006
Wall Street Patents
The New York Times has an interesting article in today's business section about the ongoing frenzy of business method patents among financial service firms such as Citigroup and Goldman Sachs.
August 10, 2006
State Immunity XI, Take 2
The University of Texas sued 48 cell phone companies in the Western District of Texas for infringing 4,674,112, which claims predictive typing. Tegic Communications, a Washington state company that sells the software for 39 of the 48 companies, filed for declaratory judgment in the Western District of Washington. The University sought to dismiss the case in Washington on several grounds, including state immunity from suit in federal courts under the 11th Amendment. Case dismissed. Upon appeal, same result (CAFC 05-1553).
August 9, 2006
Protecting its Own
By the power of the XI Amendment to the Constitution, the United States indemnifies its states. Protected by the Constitution, a state may infringe a patent without practical remedy afforded the patent holder, the Federal Appeals Court affirmed today (05-1440).
August 8, 2006
Big Media Blowout
In one of the smaller ironies limping around, Big Media went bust, and the creditor clean-up crew is trying to scrape some revenue out of selling 6,385,592 and a continuation application; a bit shabby offering in lack of proper maintenance, but potential exists to rock e-commerce companies that offer personalized advertising.
August 7, 2006
To say that Norwegian Ole K. Nilssen went about it the wrong way would be understatement. Though not found guilty of unclean hands, the man is a disgrace. Pray tell, I am referring to five kinds of inequitable conduct. Is there a Guinness record for this sort of thing?!
August 5, 2006
Senate Patent Gutting Bill
Anne Broache of CNET News.com waxes optimistic by reporting that "the U.S. patent system could be inching closer to an overhaul long desired by the technology industry," but otherwise gives a good synopsis of the dead-on-arrival Hatch-Leahy bill, which seeks to eviscerate patent enforcement. Could be a good calling card to solicit campaign contributions, but thank goodness these corporate toads' efforts are for naught, at least this year.
Reportage is a tricky business. Situations are often not as they first appear. Corruption being endemic, intrinsic to human nature, news and history often prevail from power, either to enforce or deny. On that happy note, we turn to the domestic computer DRAM market, which seems to be a large-scale exercise in manipulation all around.
August 4, 2006
In Bayer AG v. Housey Pharmaceuticals, today the U.S. Court of Appeals (CAFC 06-1083) affirmed that Dr. Gerard M. Housey is a lying weasel, his four patents 4,980,281; 5,266,464; 5,688,655; and 5,877,007 voided for inequitable conduct. This guy made a seriously lousy impression on the court.
August 3, 2006
Dilbert at the PTO
As a confidential source inside the patent office put it, "When I worked in the private sector, I might not have always agreed with management, but at least I saw evidence of some consistent internal logic for their reasoning and decision. But here at the PTO, it's like working in a live-action Dilbert cartoon, although with a more relaxed dress code."
August 2, 2006
Pfizer sued generic drug maker Ranbaxy for infringing patents related to Pfizer's blockbuster, cholesterol-lowering Lipitor®. Ranbaxy was found to have infringed, which it appealed, and lost on one of the asserted patents. But the interesting part of today's CAFC ruling (06-1179), where Ranbaxy prevailed, concerns statutory definition of dependent claims under 35 U.S.C. § 112, ¶ 4, which requires that a dependent claim narrow the scope of the claim upon which it depends.
Rambus has been enforcing its memory patents against semiconductor companies, racking up royalties. The wondrous trick was that the claimed technology was rolled into the standard for computer memories. Today the U.S. Federal Trade Commission ruled that Rambus knew just what it was doing, and thus unlawfully gaining monopolistic rent, as economists put it, for four memory chip technologies.
August 1, 2006
U2 Plays At The ITC
Ericsson Unleashes on Samsung, Again
Filing in the Eastern District of Texas Friday, Ericsson slammed Samsung with another infringement suit, asserting 11 mobile phone patents, in a continuing string to sting the Korean company into submission.