September 30, 2006
Monsanto makes Roundup, a broad-spectrum herbicide. Monsanto's patent on Roundup expired in September 2000, but it still exercises monopolistic control of the market through tying arrangements with its still-patented Roundup-resistant seeds: buy the seeds, and you must buy Roundup. Spray the cropland growing the resistant seeds, killing the weeds, but the crop is unscathed. The whole scheme is now under attack on two fronts: anti-trust and patent validity.
September 29, 2006
To Be Continued?
Rumors are swirling that the patent office may be rethinking its continuation curtailment campaign. Also rife is speculation of shuffling the deck chairs on the Patent Titanic. Some scuttlebutt at the agency water cooler....
Financial firms advise fiduciary fun, playing house for companies to transfer patent ownership to offshore shells as a tax dodge. According to the Wall Street Journal, Merck saved itself $1.5 billion doing that. And other companies have had their fling with "tax arbitrage." The IRS, never known as the life of the party, is not amused.
September 28, 2006
It's unusual that a plaintiff in a patent infringement suit settles by paying the defendant. But that's the teeth of the agreement for Align Technology settling against OrthoClear for infringing Align's patents for non-metal dental braces, as well as a mouthful of other business malpractices which Align accused OrthoClear of.
September 27, 2006
Royal Philips Electronics, with patents that roped in licensing agreements for CD-R manufacture from optical storage makers CMC Magnetics, Ritek, Prodisc Technology, and Lead Data, has been pushing a new per-unit licensing scheme, called Veeza. The optical disc makers have resisted, fearing a hike in fees. So Phillips pulled the rug out from under them.
September 26, 2006
IBM Patent Exposure
The New York Times reports that IBM, America's patent gorilla, is going naked about its patent filings. Does showing that its patent applications are well hung really do anything? Maybe.
September 25, 2006
Page Count FTC
Last week the Federal Trade Commission (FTC) released a report towards punishing Rambus for its memory patents, which were "unlawfully acquired monopoly power by deceiving JEDEC;" JEDEC being the committee that embedded Rambus' patented technology into memory standards, thus granting Rambus its windfall. The most astonishing facet is the ignorance of the FTC regarding patent valuation.
September 24, 2006
Given the landscape, you might think that standards committees "accidentally" adopting patented technology is, well, somewhat standard. The image compression JPEG standard has been a cash cow for Forgent Networks, owner of the patent smothering JPEG. While the DRAM market itself is a cesspool of corporate corruption, DRAM standards have been a boon to patent-holder Rambus. Now IEEE belatedly tries to put its wireless communication protocol standard IEEE 802.20 back on the rails after potential surreptitious patent-peddling concerns.
The Eastern District of Texas
The New York Times reviews Marshall, Texas and the patent litigation scene there in So Small a Town, So Many Patent Suits.
September 23, 2006
Taking the Fifth
It can be disgustingly impossible to hold the government accountable. Here we have a tale of evasion by the U.S. government, that the Fifth Amendment's takings clause no longer applies to patents, sanctioned by the federal courts (CAFC 04-5100), with a vigorous dissent by renowned gadfly Judge Newman.
September 21, 2006
Publish, Then Discover
Nichols Institute Diagnostics sued Scantibodies Laboratory for infringing 6,030,790. The problem was that the inventors had published an early abstract of work later patented. The delay in patenting was caused by not realizing the significance of what they had discovered and published. Oops.
September 20, 2006
On the Rise
Ms. Yoon Ja Kim was in the know about the dough, and so we go blow to blow to show ConAgra, accused, but not rising like baking bread to infringement.
September 19, 2006
Open Source Development Labs (OSDL) has a project called Open Source as Prior Art (OSPA), intended to document its source code to improve its potential usage as patent prior art. Maybe a lot of buck for the bang, but nice idea, at least in concept. Not according to Richard Stallman, founder of the Free Software Foundation.
September 17, 2006
Japan's Toshiba settled Friday with Micron Technology over a flash NAND memory chip battle that had raged for four years. While the settlement figure went undisclosed, Toshiba walked away from a lot of trouble with a smile.
The USPTO has released the 8th edition, Revision 5 of its Manual of Patent Examining Procedure (MPEP), the patent bible. But 8r5 is released in pdf format only; no hyperlinked web (html) version.
Dependent Claim Koan
What is the value of a dependent claim whose limitations are anticipated by the prior art? Considering the current obviousness standard, most recently enunciated in Alza v. Mylan, is there good reason to assert, or even draft, such dependent claims? After all, if the independent claim is done in by prior art during litigation, the dependent claim practically falls as well. Comments welcome.
September 14, 2006
Keith Whittle & Theo Cummings were Cincinnati chums. Theo, a patent attorney, helped Keith, gratis, get his patent for body protective pads, with optional heating, used for sports & construction work. As a result, Keith got 6,588,019. But the patent Keith got wasn't all that he expected, and he got sore about it.
September 13, 2006
Rocket Docket Stuck on the Launch Pad
After revisions following a July markup, Rep. Issa's rocket docket patent bill passed the House Judiciary Committee unanimously Wednesday. But it's unlikely to become law this year, because the Senate companion bill, shepherded by Sen. Orrin Hatch, is a sleeping sheep.
Microsoft's Patent Web
Microsoft has a set of web services specifications that it wants widely adopted as a standard. To smooth that path, Microsoft has promised not to assert any of its patents against developers who adopt the specification. Of course there's a catch.
MIT sued Abacus Software, Corel, Microsoft, and Roxio for infringing 4,500,919, claiming a color processing system for making copies, specifically, using the right color combination from a limited palette of inks. The district court found non-infringement based on a contested claim construction. The CAFC differed on the construction (05-1142).
Dennis Crouch & Peter Zura in the past few days have been kicking around the question: why so much patenting when so few patents are worth anything? Sophisticated studies cited by these esteemed bloggers raise paradoxes and postulate justifications, when, in fact, corporate patenting is both systemic and systematic, as in, automatic like a dog.
September 12, 2006
Last week's CAFC obviousness ruling in Alza v. Mylan highlighted the importance of expert witness testimony in informing the court as to what constituted one "skilled in the art," a standard for permissible prior art combination, standing on the ridge above the slippery slope to impermissible hindsight. Another Appeals Court ruling cautions in the priming of expert witness testimony as discoverable.
September 10, 2006
The Alza v. Mylan Labs decision last week, where the patent for anti-incontinence Ditropan® was knocked off for obviousness, using the same patent overcame during prosecution, no less, may be a harbinger for other drug patents skating on thin ice. The Economist this week raises an eyebrow on drug patents under attack.
September 7, 2006
Ronald A. Katz Technology Licensing LP is a patent tiger. Time Warner Cable and a slew of other companies are feeling the bite of 17 communications patents; suit filed in Delaware. Also snarled on are AOL, Cablevision, and Qwest, for patents related to automated customer service, conference calling, voicemail, and pay-per-view, with a flock of claims like a murder of crows.
Supreme Court On Open Source Software
Information Week's Charles Babcock writes in the September 4 issue, "Supreme Court To Hear Arguments On Software Patents And Open Source." Did you know that KSR v. Teleflex is about open source software?
September 6, 2006
Implicitly & Expertly Obvious
Mylan Labs & Impax filed drug applications (ANDAs) for generic versions of the orally taken anti-incontinence drug oxybutynin. That triggered a patent infringement suit by Alza, which holds the relevant patent: 6,124,355.
The district court found non-infringement, and invalidity by anticipation and obviousness in light of the prior art. Getting another bite at the apple to assure the Supreme Court for its upcoming KSR v. Teleflex case that the status quo is copasetic, the CAFC honed its obviousness chops (Alza v. Mylan 06-1019).
September 5, 2006
Cindy Michel got a patent for ergonomically engineered underwear: 5,157,793. But the patent maintenance fees didn't fit her, so she bitched before the U.S. Court of Federal Claims, silly girl. Regardless of whether the emperor has clothes, ergonomic or not, Cindy lost her patent for not paying for its maintenance.
September 2, 2006
Gee kids, aren't patents fun! Save 'em, trade 'em, collect 'em. Amass a portfolio and assert against major corporations until they cry for patent reform. Rock the cradle, but don't try for an injunction, the courts won't bite on that anymore; just politely demand millions in compensation.
But, gosh dad, what if I'm not smart enough to invent? I want to play! Well, son, you can; just get a stick and poke at the little patent varmints. Now, Wiki Patents Community Patent Review hands you the stick. Piss away your time playing amateur prior art searcher. You'll feel good that you're improving patent quality, helping the great and powerful Patent Wizard of Oz. Pay no attention to that man behind the curtain; maintain the illusion that all is well while you serve the motherland.