October 30, 2006
Historically, some standards committees have been naive, blind to adopting a standard incorporating patented technology, with the result that adoptees of the standard had to fork out patent license fees to a company having kept its mouth shut until the standard was set and widely adopted. This happened with standards for images (.gif & .jpeg), DRAM, and wireless communications. Now, at least one standards setter has set a standard in being patent savvy.
October 29, 2006
Amazon's 2006 Q3 earnings report, filed with the SEC last Thursday, revealed that Amazon settled with Cendant in its infringement assertion of 6,782,370, an ecommerce recommendation patent. A year ago, Amazon settled a similar suit from Soverain Software for $40 million, another settlement revealed through SEC filing. Is this an omen for the IBM assertion against Amazon? Does the pope wear a robe?!
As reported in the Patent Prospector last month, Ms. Yoon Ja Kim lost an appeal in enforcing her patent, RE36,355, against ConAgra. Ms. Kim's admirable spunk is displayed herein by her comments regarding her concerns.
October 27, 2006
Aussie Dr. Alexander O'Neil invented a urinary catheter (4,652,259) that reduced the risk of urinary tract infection by limiting the length of the catheter sheath to stop short of a natural pressure barrier in the bladder. Dr. O'Neil also stopped short of disclosing the known best mode in his 1979 patent application, finally rectifying the specification in his 1985 CIP. But O'Neil had published an article with specifics in 1982. [CAFC 05-1241]
October 24, 2006
Patent Stock Index
The Ocean Tomo 300 Patent Index launches Wednesday on the American Stock Exchange. It is the first major stock index based solely on corporate IP in the past 35 years. This is yet another chip on Ocean Tomo's growing pile of patent monetization mechanisms.
October 23, 2006
Big Blue Whacks Amazon
Patent powerhouse IBM has filed suit against Amazon in the Eastern District of Texas. IBM first notified Amazon in September 2002 of its "licensing opportunity", but Amazon balked. As IBM isn't exactly known as Mr. Sloppy, Amazon is either out to lunch, has hidden cards to play, or a bit of both.
Chinese Patent Spats
The Financial Times reports that Chinese companies, learning the ropes, are becoming increasingly assertive about patent rights in the U.S.
October 22, 2006
Patent Pendency Pending
The deck chair shuffling on the ship of patent pendency revealed a bit more configuration clarity this past week. IDS & ten-claim limits in, continuation limitations out. No sitting place in evidence for concern about patent quality.
October 19, 2006
Halliburton has successfully drilled for multi-billion dollar contracts in Iraq, thanks to its Dick Cheney connection. But drilling on the patent front, it couldn't gel, its claims too fluidly fragile to be construed. The indefinite claim term lost in lubrication: "fragile gel."
20/20 Take 2
While others rattle on with their own bias, Professor Gregory Mandel of Albany Law School attacks hindsight bias with empirical research and well-reasoned analysis. "Humans are cognitively unable to prevent knowledge gained through hindsight (here, that the invention was achieved) from impacting their analysis of past events, as required for the proper ex ante analysis. Because of this hindsight bias, individuals routinely overestimate the ex ante predictability of events after they have occurred." Mandel's paper is crucial reading for anyone not blinded by their own bias to hindsight.
October 18, 2006
Hush Hush Patenting
Under the Invention Secrecy Act of 1951, the government may impose a secrecy order on patent applications whenever the disclosure "might be detrimental to the national security." Secrecy can be imposed even when the application is filed by an individual or company without government sponsorship or support. In such instances, the patent grant can be withheld.
October 16, 2006
Reissue Reissue Issue
Medrad was granted 5,494,036, "Patient infusion system for use with MRI." But the patent itself needed an infusion, so, within two years of issue, Medrad filed for a reissue. It got the reissue (RE 37,602), but in the process, neglected to file a reissue declaration (per 37 C.F.R. § 1.175). Asserted, it fell on the procedural error. So, Medrad filed for a reissue of the reissue (RE 36,648). But that didn't fly in court either, because the basis of the 2nd reissue was procedural, deemed outside the scope of the reissue statute (35 U.S.C. § 251). In the appeal (CAFC 06-1082), § 251 is interpreted as offering broad relief as a curative for prosecution error.
NE Asian Patenting Tsunami
WIPO reports patent activity worldwide for 2004. The most common press report is how the Chinese have got patent fever, but the Mainichi Daily News naturally angles that Japan continues to file the most patents.
October 12, 2006
Medtronic, a medical device maker, filed a declaratory judgment action against Guidant, more precisely, the interests holding RE 38,119, a re-issue of 4,928,688. Reissue is the issue, and in a non-precedential CAFC ruling (05-1515), the boundaries of recapture are encapsulated.
At the turn of the century, Silicon Valley debutante Transmeta shipped a low-power microprocessor, the Crusoe, a promising debut for the laptop and portable device market. The product promise was never realized. Intel's Pentium III shipped shortly before, making billions to Crusoe's millions. Now Transmeta claims Intel tucked into its Pentium Transmeta's patented technologies.
October 11, 2006
On the Path to Obviousness
Dennis Crouch reports in Patently-O on second-round briefs in KSR v. Teleflex, the first case on obviousness before the Supreme Court in 30 years. Dennis crafted a wonderful summary of the issue that is essential reading. But of course there's Patent Hawk's two cents...
October 10, 2006
Power Integrations zapped Fairchild Semiconductor for willfully infringing four patents. Tuesday, a Delaware jury awarded almost $34 million in damages, at a strikingly high 15% "reasonable" royalty rate.
Claim Construction Incongruity
Hal Wegner makes a provacative point that the CAFC reviewing claim construction de novo as a question of law totally ignores the fact-based inquiry required for claim construction. Is claim construction a finding of fact, or the product of legal analysis rooted in fact?
October 9, 2006
Feeling emboldened to publicly state that it slacks off whenever it wants, owing to a recent East Virginia district court victory in Sony v. Dudas, the patent office announces that reexamination will be limited to whatever the examiner feels like reexamining. Nothing has changed.
October 8, 2006
October 6, 2006
Among many others, Eon-Net sued banker Flagstar Bancorp for infringing 6,683,697. As the court put it, "In this case, as in its various other infringement actions, Eon-Net followed services of the complaint with a cheap offer of settlement." (Western District of WA C05-2129MJP).
October 5, 2006
Broadcom and Qualcomm have been entangled in litigation for years, filing suits and countersuits in venues all over the country. Broadcom tried to get the ITC on its side, but the issues are so complex, the assigned administrative judge backed off, postponing a decision. Down in San Diego, Qualcomm home court, Judge Anthony Battaglia asked the chairmen of the two companies, Broadcom's Henry Samueli and Qualcomm's Irwin Jacobs, to hunker down and reach an agreement for 10 pending lawsuits. To naught.
Jet Ski Smash
Kawasaki Heavy Industries just sued Sea-Doo jet ski manufacturer Bombardier Recreational Products for infringement of five patents - a broad spray of claims. Kawasaki doesn't just want damages - they want trebled damages for willful infringement, preliminary and permanent injunctive relief, attorneys fees, and a court order impounding and destroying the infringing products.
October 4, 2006
Some patented levity: the San Jose Mercury News yesterday published "Wacky ideas get respect at the U.S. Patent Office."
Dyeing the Prior Art
Every obviousness case it gets nowadays, the CAFC polishes its chops by elaborating its flexible interpretation of anticipation via prior art combination, preening to the Supreme Court for the upcoming KSR v. Teleflex battle. In Dystar v. Bann (and Patrick), a patented dyeing process was found valid and infringed by the district court judge, who scalded the defendants a whopping $90,000 in damages (that's right, $90,000). Reeling, they appealed (CAFC 06-1088).
October 2, 2006
Rocket Docket Bill Passes House
H.R. 5418, for a pilot project of throwing spare change at federal district courts to streamline patent litigation, passed by voice vote in the House today.
Aero Products, which makes & sells inflatable air mattresses, sued Intex Recreation for patent (5,367,726) and trademark infringement. Aero won both, and Intex appealed (CAFC 05-1283). There was a claim construction dispute of interest, as well as an award of double damages on appeal.
October 1, 2006
Polished Look for Dumb Algorithms
For all the carping about junk patents, there's one patent that's never controversial: patent leather. The Seattle Times reminds that, "One of the shining stars of the fall fashion season is patent leather." This story courtesy of Google News, whose fancy algorithms aren't smart enough to distinguish news stories about patents from those on patent leather.
The Denver Business Journal, in an article largely about Denver possibly hosting a satellite office of the PTO, reported last week: "About 3,000 people work as patent examiners...They're hiring a thousand examiners a year, and they still can't keep up with demand... The heavy workload has resulted in an attrition rate as high as 30 percent for first-year hires."
Acacia Gets Personal
Acacia Technologies issued a press release late last week of its acquisition of a web personalization patent: technology for learning user preferences and automatically personalizing a user's online experience. Once considered an invasion of privacy, web personalization has taken off in recent years.