November 30, 2006
Maurice Mitchell Innovations LP sued Intel in December 2004 in the Eastern District of Texas for infringing 4,875,154, which claims bus switching for a CPU. The problem was that the disclosure wasn't fully wired for the claims.
USPTO management secured a 7% across-the-board pay raise for examiners effective the last pay period of the year.
November 29, 2006
Even before the Supreme Court further mucks up the § 103(a) obviousness standard via its Teleflex v. KSR ruling, fear by the appeals court of the Supreme Court mucking up the obviousness standard has already warped interpretation of the law.
November 28, 2006
Supreme Court Obviousness Motivation
Excerpts from the oral arguments before the Supreme Court in KSR v. Teleflex, KSR seeking to upend the § 103(a) obviousness standard; the following excerpts giving a flavor of the proceedings.
Lost In Translation
Last Friday the Supreme Court of Korea affirmed patent infringement by Microsoft of Korean patents for automatic Korean to English translation, used in the local version of Microsoft Office.
November 21, 2006
French monopolist Alcatel, sucking in $18 billion in annual revenues, is unabashedly aggressive. Alcatel has an ongoing patent battle with Foundry Networks, and has now added Microsoft as a mark for some of the same patents. This is in addition to the patent suit over video-decoding technology that Lucent Technologies, an Alcatel acquisition, has asserted against Microsoft for its Xbox video game machine.
November 20, 2006
Anticipation Needn't Be Effective
Generic drug-maker Impax filed an ANDA to make riluzole tablets, which are used to treat amyotrophic lateral sclerosis (ALS). In doing so, it was heading for a confrontation with patent holder Aventis Pharmaceuticals. So Impax preemptively slammed Aventis patent 5,527,814 for a declaratory judgment of noninfringement, invalidity, and unenforceability. Impax got nowhere crying noninfringement or inequitable conduct, but, on appeal, its prior art argument got traction with the CAFC (05-1313), after having failed with the district court. The CAFC ruled that, to anticipate, a prior art reference only has to enable creation of a drug for treatment, but need not go so far as to indicate that treatment using the drug would be effective.
November 19, 2006
USPTO management insists on cracking the whip, destroying morale among examiners in the name of productivity.
November 18, 2006
Function Over Form
PHG has two design patents for medical labels: D496,405 and D503,197. PHG sued St. John, a competitor, for its medical label sheets, and got a preliminary injunction from the district court. St. John had argued that the design patents weren't valid, because they had a functional aspect. The appeals court took a look (CAFC 06-1169), and decided St. John might have gotten short sheeted.
November 16, 2006
Optivus Technology and Loma Linda University Medical Center sued Ion Beam Applications (IBA) for violation of the Florida Deceptive and Unfair Trade Practices Act, violation of the California unfair competition law, violation of the Lanham Act, and for intentional interference with prospective economic advantage. Oh, yeah, and patent infringement: 4,870,287 and 5,260,581. A slightly mixed ruling by the CAFC (05-1518), but the patents were hit with prior art death rays.
Tackling Chinese Infringement
China's State Intellectual Property Organization (SIPO) offers low cost patent enforcement: though limited in power, it's fast and cheap. And it's underused by American and European companies, who more regularly go with costly lawsuits.
November 15, 2006
Abrasix/AstraZeneca successfully sued Mayne Pharma for infringing 5,714,520, 5,731,355, & 5,731,356, covering the intravenous anesthetic Dirprivan®, getting literal and doctrine of equivalents (DOE) judgments in district court. Mayne appealed, and got a crucial claim construction reversed, but that did not overturn the DOE infringement. (CAFC 06-1118)
November 13, 2006
Akeva sued Adidas for two athletic shoe patents: 6,662,471 & 6,604,300, specifically improved heels. In a non-precedential ruling, the CAFC (06-1090) affirmed a district court claim construction restricting the meaning of the term "secured" to its specific usage in the specification.
November 12, 2006
§103(a) has become a scourge of prosecution (some would say it has been for years). With the CAFC pretzel preening in anticipation of the Supreme Court going bananas with KSR v. Teleflex, examiners feel even more emboldened to sling obviousness rejections with aplomb.
November 11, 2006
Patent Death in Japan
Streamlining patent litigation in Japan has spelled its demise. After creating a specialized IP court system, the net effect has been to snuff patent enforcement.
November 10, 2006
USPTO management continues to display astounding disregard for both patent quality and retaining patent examiners. Agency management's current proposal to slam examiners is flat-goal production quotas.
November 9, 2006
Apparatus versus Process Use
The appeals court ruled today in Abbott Labs v. Baxter Pharmaceuticals. This was the second round of appeals of Abbott's assertion of 5,990,176 (CAFC 06-1021). In the first round, the CAFC remanded with a different claim construction. In this episode, Abbott appealed noninfringement, and Baxter cross-appealed validity. What the appeals court found was old news: new uses for known processes may be patented, but a prior art device cannot be patented, even if new uses of it are found.
November 8, 2006
SRI sued Symantec and Internet Security Systems for infringing four patents related to real-time network surveillance. The defendants found some damning prior art by the inventors in what SRI termed "dumb luck." Dumb indeed.
November 7, 2006
One of the 6,000 patent examiners is selling on eBay the commemorative keyring that was provided as an end-of-fiscal-year gift to PTO employees. The keyring was only half of the gift; the other half was a chicken kabob pita sandwich. No word on the whether there was pity for the pita.
That USPTO top management are Republican troglodytes should come as no surprise; their "the floggings will continue until morale improves" management style gives them away. A Democratic Congress could lame some of the agencies "reforms," such as limiting continuations.
November 6, 2006
This claim has been making the rounds. A wily prosecutor snuck one in to see if the inventor bothered to read the claims. Apparently not.
NTP Pops Palm
NTP, who successfully squeezed $612.5 million from Blackberry-maker Research in Motion in the patent drama of the year, has slapped Palm with an infringement suit for email delivery to its Treo handheld. The quick odds assessment by the market left Palm shares down 8%.
November 5, 2006
Furnace Brook owns 5,721,832, and is slinging it to see what it will stick on. After getting tossed in summary judgment for its overreaching assertion against Overstock.com, Furnace is on fire, sending out lowball solicitations to license. These clowns are going to give patent trolls a bad name.
November 3, 2006
The Media Trap
Paul McDougall of Information Week gets the Bad Patent Article of the Week award. Congratulations Paul! Paul titled his little ditty, "How To Avoid The Patent Trap," but of course the article isn't about that; it's a hodgepodge of Paul's confusion, carping, misinformation, and miscellaneous tidbits, with, admittedly, a couple worthy paragraphs. Let's get bitchy...
Windows Kisses Linux
Microsoft played a radically different card in its dealing with Linux Thursday. Novell struck a deal with Microsoft to pay ongoing royalties to 2012 to avoid the risk of having the SUSE Linux ox gored by Microsoft's patent portfolio, particularly a mutual covenant not to harangue each others customers and developers with patent assertions; no mention of not suing each other.
November 2, 2006
Accelerated Examination Hell
Having just attended the USPTO webinar on accelerated examination (AE), my impression is that the program is an admission of failure by the agency, poorly thought through, expensive, and fraught with risk for the applicant. AE use should be circumscribed to business necessity, such as to secure additional funding. And AE should only be employed where a backup continuation or divisional exists, but that only partly mitigates the risks.
November 1, 2006
Forget Cashes Out
Forgent Networks, who forged filthy lucre from 4,698,672, which covered the JPEG image compression standard, put out a terse press release today, announcing having settled all outstanding assertions. Enforcement being an increasingly bumpy ride, claim construction not going its way, and with a reexam dragon breathing down its neck, Forget declares victory and goes home.
Patent pendency isn't just for examination any longer. The spirit of Soviet Union bureaucracy, already embraced by USPTO management, has infected their online web service, EFS. At least the agency is sending out emails acknowledging a problem.