February 28, 2007
Continuation Limits Dead
Classic gossip chain: Hal Wegner reports from "a highly reliable source" that USPTO Under Secretary Jon Dudas, in a swing through Silicon Valley last week, assured computer industry leaders that the proposed limits on continuations are, "in the words of one observer" - "dead as a doornail."
February 27, 2007
Filler Thriller 2
In its second appearance before the Court of Appeals (CAFC 2006-1407), Aquatex v. Technique Solutions, applying the doctrine of equivalents in light of prosecution estoppel, and functional equivalence, are the issues at hand. Can Aquatex have its 6,371,977 patent claims for fiberfill apply to non-synthetic material? A surprising conclusion of ineptitude.
February 24, 2007
A Ring of Settlement
Cell phone chip impresario Qualcomm and rival Broadcom inked a partial settlement that puts only part of their herds of thundering lawyers grazing.
February 23, 2007
The Cup Not Runneth Over
Nouri Hakim sued Avent for infringing 6,321,931 and 6,357,620, which claim a spill-proof drinking cup. Avent dodged the infringement stains by a narrow claim construction and some Italian prior art. Hakim appealed (CAFC 05-1398), but had no juice.
February 22, 2007
Microsoft would like nothing more than to eviscerate patent enforcement. Unlike its erstwhile hardware brethren, IBM, Microsoft has struggled rather fruitlessly monetizing its own patents. Constantly hammered for infringement, astonishingly dim in handling settlement negotiations, Microsoft as town crier may have found a willing audience in its appeal to the Supreme Court of its loss to AT&T, though no credit to the bozo Microsoft had as its mouthpiece. Now it's lost the first round in its wide-ranging battle against Alcatel-Lucent, nailed with a tab of $1.52 billion. But that's just the start of it.
February 21, 2007
All Bets Are Off
For all appearances at oral arguments today before the Supreme Court, AT&T looks unlikely to be able to enforce 35 USC § 271(f) against Microsoft, who ships infringing code overseas. Justice Stephen Breyer outright told Seth Waxman, AT&T's attorney, "I don't see how to decide for you." More significantly, the patentability of software itself may be at risk.
Sevenson Environmental Services sued Shaw Environmental for infringing patents related to hazardous waste treatment. Shaw countered that it was immune under 28 U.S.C. § 1498 as a government contractor. District court summary judgment affirmed by the appeals court (CAFC 06-1391).
February 20, 2007
Who Done It
MyMail sued a bunch of Internet service providers (ISPs), including America Online, for infringing 6,571,290, which claims "fungible intercourse over a network". After claim construction, the district court granted summary judgment of non-infringement. MyMail appealed (CAFC 06-1147), a tilting at windmills, as it had already conceded defeat in claim construction.
February 19, 2007
Bernard Bilski helped the USPTO set up an appeals court review of statutory subject matter - 35 U.S.C. §101. Bilski claimed a method of economizing in managing risk; more simply, simply a method of doing business. Self-admittedly, the claims aren't tied to any physical structure, don't recite a transformation of matter, nor even of computer data. The patent appeals board rejected Bilski's claims as unpatentable. A case with considerable intrigue, it raises the question of whether the patent office is attacking its pendancy problem by attempting to scotch business method patents.
February 15, 2007
IP Law 360 reported 2006 litigation trends in the computer technology and financial services industries, from its survey of court dockets. As might be expected, Microsoft was hammered hardest. Telecom companies are now just starting the IP tussle over VOIP, the nascent revolution. And financial service companies are just now getting into the game.
February 14, 2007
In case you missed it, Kevin Noonan's blog post yesterday "Science Fiction in The New York Times," about Michael Crichton's NYT op-ed folly, is highly recommended. Related is H.R. 977, intended to stop genetic patents; coverage by Stephen Albainy-Jenei at Patent Baristas.
Intent to Deceive
Cargill, in its assertion of canola oil patents against Canbra Foods and Dow Agrosciences, slipped on oily slicks: on-sale bar and inequitable conduct.
February 13, 2007
Patents for Business
M. Henry Heines, partner at Townsend & Townsend, has written an informative backgrounder about the business of patents, from nuts-and-bolts introduction to patent management to strategic issues. The book: Patents for Business: The Manager's Guide to Scope, Strategy, and Due Diligence, lays out the essentials that managers need to know about developing and managing a patent portfolio.
DataTreasury, owning patents for auotmated check processing that has become Federal law, sued and settled with EDS, at least in part one of their two-part dispute. EDS had counterclaimed. EDS wanted to see the counterclaims through in its preferred venue, going for the kill in the second, separate, unsettled matter. The district court said no, and the CAFC concurred.
February 12, 2007
PUBPAT Targets Opsware
Dan Ravicher's PUBPAT has struck again, targeting Opsware's 7,124,289 with an ex-parte re-examination request to the USPTO. '289 "claims methods for automatically configuring or installing software on a plurality of computing devices having different respective sets of software and/or configurations of operating parameters." PUBPAT hammers '289 with multiple prior art references; Dan's brewed a harsh dose for '289. (press release)
Patent Monkey is a new, free patent search site by spokesperson and co-founder Paul Radcliff, erstwhile patent examiner. If offers PDF downloads, including bulk downloads. It also has the unique feature of showing current patent status. It's a very promising start. What Patent Monkey currently lacks is a boolean search engine; its advanced search page is a blank, with the message "coming soon".
Patent Reference is a new site that aims to be a smorgasbord patent reference. The site is currently in beta, and it shows. Hopefully the user interface will mature.
February 9, 2007
Dippin' Dots owns 5,126,156, which claims a process for making ice cream. "The Dippin’ Dots brand is known to patrons of amusement parks, stadiums, shopping malls, and the like." After Dippin's distributors turned competitors, Dippin' flipped into patent enforcement, suing left and right. Counterclaim included antitrust, on what defendants called a fraudulently acquired patent. Claim construction, infringement, prior art (including a newly minted definition of "obvious"), inequitable conduct; it's all in the dip. (CAFC 05-1330)
February 8, 2007
Patent Reform (Again)
In a retread of the Patent Reform Act of 2005, the U.S. Congress House Judiciary Committee is holding a hearing on patent reform next Thursday (Feb. 15). Though basically a revisiting, the differences between now and 2005 is that Democrats are now in charge, and something may get passed.
February 7, 2007
USPTO In The Dough
President Bush recommended that the USPTO keep its piggy bank for the fourth straight year. If approved by Congress, the USPTO budget for 2008 would be around $1.9 billion, up 8% from 2007.
The USPTO Board of Patent Appeals and Interferences (BPAI) last month laid out a rare precedental ruling regulating direct testimony conduct during patent interference cross-examinations. (Pevarello v. Lan, Patent Interference 105,394)
February 5, 2007
FTC Reins in Rambus
The Federal Trade Commission issued its final opinion in the Rambus antitrust case, setting maximum licensing royalty rates for Rambus' DRAM patents.
Medtronic sued BrainLAB for infringing four patents claiming "image-guided surgery products that enable the precise localization of surgical instruments used during surgery." In its own surgical operation, BrainLAB removed a jury-implanted infringement tumor, using careful claim construction, narrowing to non-infringement, that the judge approved as a matter of law. Medtronic's appeal was to no avail.
February 4, 2007
In the February 5 BusinessWeek article "To Patent or Not to Patent?," Vivek Wadhwa sketches some patenting points. Did you know that "intellectual property law is notoriously confusing"?