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August 31, 2006

Cheapskate PTO

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.

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Posted by Patent Hawk at 6:26 PM | The Patent Office | Comments (2)

August 30, 2006

Obviousness Aligned

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).

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Posted by Patent Hawk at 12:00 PM | Prior Art

August 29, 2006

Impermissible Hindsight

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.

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Posted by Patent Hawk at 1:42 PM | Prior Art

August 27, 2006

Blackboard Rattles

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.

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Posted by Patent Hawk at 5:12 PM | Litigation | Comments (1)

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.

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Posted by Patent Hawk at 3:29 PM | Litigation


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.

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Posted by Patent Hawk at 2:41 PM | The Patent Office

NetFlix Rebuffed

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.

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Posted by Patent Hawk at 12:00 AM | Inequitable Conduct

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.

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Posted by Patent Hawk at 2:18 AM | Patents In Business | Comments (1)

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.

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Posted by Patent Hawk at 1:19 PM | Litigation

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.

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Posted by Patent Hawk at 11:59 AM | Litigation

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.

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Posted by Patent Hawk at 12:02 AM | Patents In Business

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.

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Posted by Patent Hawk at 12:02 AM | The Patent System | Comments (1)

August 20, 2006

Irreparable Harm

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.

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Posted by Patent Hawk at 12:28 PM | Injunction | Comments (2)

August 18, 2006

Tissue Issues

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.

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Posted by Patent Hawk at 12:33 PM | Case Law

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).

Continue reading "Seedy"

Posted by Patent Hawk at 12:24 PM | Antitrust

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.

Continue reading "Carded"

Posted by Patent Hawk at 4:10 PM | Litigation

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.

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Posted by Patent Hawk at 3:20 PM | Claim Construction

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.

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Posted by Patent Hawk at 12:00 AM | Patents In Business

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).

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Posted by Patent Hawk at 10:16 PM | Case Law

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).

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Posted by Patent Hawk at 11:57 AM | Case Law

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.

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Posted by Patent Hawk at 12:47 AM | Patents In Business

August 7, 2006

Norwegian Wood

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?!

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Posted by Patent Hawk at 3:45 PM | Inequitable Conduct

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.

Posted by Patent Hawk at 11:18 AM | The Patent System

Selective Memory

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.

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Posted by Patent Hawk at 1:01 AM | Litigation

August 4, 2006

Bad Deceiver

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.

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Posted by Patent Hawk at 10:52 AM | Inequitable Conduct

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."

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Posted by Patent Hawk at 12:45 PM | The Patent Office

August 2, 2006

Dependent Claims

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.

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Posted by Patent Hawk at 6:21 PM | Claim Construction

Sneaky Rambus

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.

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Posted by Patent Hawk at 10:47 AM | Patents In Business | Comments (1)

August 1, 2006

U2 Plays At The ITC

In a rare infringement assertion, Microsoft filed a complaint today with the International Trade Commission (ITC) against Belkin over patented U2 peripheral interface technology.

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Posted by Patent Hawk at 5:19 PM | Litigation

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.

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Posted by Patent Hawk at 4:39 PM | Litigation