December 29, 2006
Dispensing Claim Construction
Ventana Medical Systems sued BioGenex Labs for infringing 6,352,861, which claimed automated staining of microscope slides. The asserted stain didn't take well in claim construction: the district court found non-infringement based on a narrow construction disclosed throughout the patent and in prosecution history. By 2-1, the CAFC majority used a different microscope (CAFC 06-1074), though the dissent concurred with the district court decision. Here, in a turnabout from previous rulings, where claims would not be construed broader than the disclosed embodiments, or broader than envisioned by the inventors, the appeals court muddies the tenets of claim construction.
December 27, 2006
Engate asserted its court reporting patents, and in doing so, showed that clown time is not over at the courthouse. Atkinson-Baker & Esquire, defendants in the case, got summary judgment of "what was the plaintiff thinking?!" Ditto on appeal (CAFC 06-1140), and then some.
December 26, 2006
Generic drug makers IVAX Pharmaceuticals, Dr. Reddy's Laboratories, and Teva Pharmaceuticals filed an ANDA for the patented drug olznapine, used to treat schizophrenia. So, naturally, patent owner Eli Lilly sued for infringing 5,229,382. In a 221-page analysis following a 2.5 week bench trial, '382 was found valid and infringed. In a last hurrah, the generic defendants appealed, arguing one last time invalidity and inequitable conduct (CAFC 05-1396).
December 21, 2006
Lessening the post office load, the USPTO has initiated a pilot program of office action (OA) email notification, letting an applicant know that the action may be viewed via Private PAIR.
December 20, 2006
In 2003, Visto sued Seven Networks in the Eastern District of Texas for infringing three secure email patents: 6,023,708; 6,085,192; and 6,708,221. Seven was found guilty in April, with the jury awarding a royalty rate of 19.75% on infringing product revenue, a tab of $3.6 million. Tuesday, found willful, the tab has been doubled, and then some.
December 19, 2006
District judges in Texas smell a new crude that looks profitable: patent litigation. Judge Ward in the Eastern District penned rules that made that district seem the patent litigation capital of the U.S. Now other Texas districts are making a draw from the same deck.
December 18, 2006
IBM sued Amazon. Alcatel-Lucent sued Microsoft. Both defendants have lashed out in retaliation. Patent business as usual.
On-Sale Bar Kiosk
Plumtree Software sought, and got, a declaratory judgment against Datamize, convincing a district court to summary judgment invalidity under the on-sale bar doctrine, 35 U.S.C. § 102(b), killing 6,460,040 and 6,658,418, continuations of 6,014,137. Two issues on appeal (CAFC 06-1017): whether Plumtree had "reasonable aprehension" to file for declaratory judgment, and whether the on-sale bar doctrine had been met.
December 15, 2006
Things are running hot between L&W and Shertech, manufacturers of heat shields for autos. Starting the fracas, L&W sought declaratory judgment of non-infringement against Shertech's 5,670,264, also arguing invalidity and inequitable conduct unenforceability. Shertech naturally counterclaimed infringement, which the district court granted in summary judgment. Then a jury trial on invalidity, where only claim 7 survived.
December 14, 2006
DSU Medical sued Japanese medical supply company JMS and SE Asian manufacturer ITL for direct, inducement, and contributory infringement of 5,112,311 and 5,266,072, which claim a guarded winged-needle device that reduces the risk of getting stuck with the needle. The defendants avoided getting stuck with claims 46-47 and 50-52 of '311 by proving invalidity, but JMS got jabbed $5 million for infringing '311 claims 49, 53-54. Though long-winded in doing so, the CAFC (04-1620) wholly concurred with the trial court.
Patent Search Engines
There are a few free patent search engines available. Google, having kept the scanning gnomes up past bedtime, has all issued U.S. patents since Columbus was found to be infringing. There are also FreePatentsOnline and PatentReader, as well as the venerable USPTO search. Not exactly fun entertainment for the whole family, nor particularly industrial-strength.
December 13, 2006
People's Daily Online (China) reports that the heads of patent agencies of China, Japan, and Korea met in Beijing on December 4 and signed an agreement to share patent search databases and patent examination results. This was the sixth such powwow.
December 12, 2006
Classified Cosmetics sued Del Labs for infringing 6,589,541. Del got a district court summary judgment that the patent was invalid because it was inoperable. The appeals court [CAFC 06-1010] mused the district court ruling as inoperable.
December 11, 2006
Anonymous Dog Eats Homework
The Medicines Company filed papers today with the SEC blaming its outside legal counsel for being one day tardy in filing for a patent extension for its blockbuster anti-blood clotting drug Angiomax. Medicines hoped the Republican Congress would help them out, but they skipped town. Still, Medicines refuses to shoot the dog.
Sanofi markets Plavix®, used for heart attacks and strokes, and covered by 4,847,365. Maneuvering by the Hatch-Waxman Act playbook, Apotex filed an ANDA for a generic version, triggering an infringement suit by Sanofi. Apotex counterclaimed with invalidity. In due time, the FDA approved the ANDA. Sanofi and Apotex settled... well, except that government regulators, the FTC and state attorney generals, nixed the settlement as not copasetic.
December 9, 2006
In April 2005, Golden Bridge sued Nokia & Lucent in the patent enforcement capital of the United States, the Eastern District of Texas, for infringing 6,574,267, which claims spread-spectrum, multiple channel transmission to wireless devices. Thursday, Golden Bridge got shot out the saddle.
December 7, 2006
Patent-holding company Card Activation Technologies is continuing its aggressive enforcement campaign of 6,032,589. After putting the hard word on McDonalds and Walgreens in October, the latest to receive notice from the courthouse is Sears, who also operates Kmart.
December 5, 2006
The Thai government issued its first compulsory license of a patented HIV-AIDS drug, for a generic version of Merck's Efavirenz. Merck responded with predictable alarm at the precedent.
December 4, 2006
Ottawa-based Wi-LAN got a "way-to-go!" on the Toronto Stock Exchange after scoring a patent coup from Nokia; Wi-LAN's share price jumping 64% on the news, to $4.40 Canadian. Nokia paid $15.2 million for fully paid-up licensing to Wi-LAN's patent portfolio, while passing off its own portfolio of asymmetric digital subscriber lines (ADSL) patents to Wi-LAN.
India's Patent Law
U.S. Under Secretary of Commerce for International Trade Franklin L. Lavin went to New Delhi as a stalking horse for a delegation of U.S. corporations, and thought he'd get a little bitching in.
December 2, 2006
The Coalition for Patent Fairness
My email box on Thursday had two quite contrasting emails: one from The Coalition for Patent Fairness, a corporate lobbyist group for self-interested "patent reform;" and, in harsh rebuttal, Ron Riley of The Professional Inventors Alliance.