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March 30, 2007
Actual Controversy
Generic
drug maker Teva took on
Novartis for its
Famvir® herpes drug by filing an ANDA with
the FDA. Teva figured facing five patents, but Novartis only sued for infringing
one. So Teva sought declaratory judgment "to obtain patent certainty" on the
other four. The district court dismissed, but, in light of the Supreme Court
MedImmune ruling last November, and the CAFC's
Sandisk ruling a few days ago, the CAFC (06-1181)
remanded, telling the district court to take the case. Any "actual controversy"
now lays the tarmac for takeoff of a declaratory judgment filing.
Continue reading "Actual Controversy"
Posted by Patent Hawk at 11:50 AM | Declaratory Judgment
March 29, 2007
Aced
Acer
Computer has been doing fine: sales are up, and Acer is now ranked fourth in
computer product sales in the U.S. So what does competitor
Hewlett-Packard do? Saddle up the palomino;
ride on down to the Eastern District of Tejas (HP-207-cv-00103-TJW);
draw the pistolero out of its holster, and make Acer dance.
Posted by Patent Hawk at 9:09 PM | Patents In Business
Hatch-Waxman Extension
Merck
sued Hi-Tech Pharmacal for patent infringement. Hi-Tech replied: patent expired.
Merck said it had an extension, and the district court agreed. So Hi-Tech
appealed (CAFC 2006-1401).
The CAFC ruled:
[As to] whether a patent term extension under the Hatch-Waxman Act, 35 U.S.C. § 156, may be applied to a patent subject to a terminal disclaimer under 35 U.S.C. § 253, filed to overcome an obviousness-type double-patenting rejection[: b]ecause the language of § 156 is unambiguous and fulfills a purpose unrelated to and not in conflict with that of § 253, we hold that a Hatch-Waxman term extension may be so applied.
Posted by Patent Hawk at 11:23 AM | The Patent System
March 28, 2007
Toxic Review
Now
that major corporations, such as IBM, Microsoft, and General Electric, have
bought into "community" patent application review, as a seemingly altruistic but
really self-interested way of appearing to care about improving patent quality,
they're figuring the gotcha': willful infringement. In other words, top
corporations are led by folks who have more money than brains to think
through the legal consequences of their actions.
Continue reading "Toxic Review"
Posted by Patent Hawk at 8:35 PM | Prior Art
Self Serving
IBM IP suit David Kappos mealymouths patent reformist sentiments, hard-pedaling statutory patent reform with soft-core reasoning. BusinessWeek's latest pro-corporate missive: It's Time for Patent Reform. Computer technology anti-patent sycophants at least may eat this up.
Continue reading "Self Serving"
Posted by Patent Hawk at 12:37 AM | The Patent System
March 27, 2007
Declaratory Judgment Threat
In
its Sandisk ruling yesterday, the appeals court lowered the bar for
seeking declaratory judgment (DJ) in patent cases, rebuking its own
precedent in light of the Supreme Court's recent
MedImmune v. Genentech ruling. While not defining "the outer boundaries of
declaratory judgment jurisdiction," having had infringement asserted is now reason enough
to seek declaratory judgment; a company need not "bet the farm," waiting for
a lawsuit, while pursuing its business. Fear or internal knowledge of
infringement is not enough; the patentee must take some "some affirmative act."
Could a simple invitation to license trigger a DJ reaction? - It certainly seems
so.
Continue reading "Declaratory Judgment Threat"
Posted by Patent Hawk at 11:55 AM | Declaratory Judgment
March 26, 2007
Winning the War
While
we are winning the war in Iraq by gentle persuasion that touches the hearts and
mind of the whole world, other governmental efforts are also reaping the fruits of
benevolence. Today, USPTO director Jon Dudas launches his five-year agency-wide
Strategic Plan, with the goal of becoming "employer of choice." Row, row, row
your boat to the PTO.
Continue reading "Winning the War"
Posted by Patent Hawk at 10:44 AM | The Patent Office
March 24, 2007
The Salt of Obviousness
Apotex's successful appeal against Pfizer
(CAFC 06-1261) points
at the near chaotic state of anticipation in case law, ad hoc consideration of
what constitutes an obvious innovation, as opposed to a patentable invention. In
the case of Pfizer's
Norvasc
compound, invalidity challenges had been rejected by three different district
courts before the CAFC pulled an upset, declaring the mixture obvious. The court
elucidates where presumptions lie with regard to obviousness, what constitutes
"reasonable expectation of success" has to do with what would have been
expected, that the threshold of "undue experimentation" is beyond routine
testing, that "obvious to try" isn't good enough, and that predictability has
nothing to do with it (huh?). "[P]atentability is not imparted where ‘the prior art
would have suggested to one of ordinary skill in the art that this process
should be carried out and would have a reasonable likelihood of success.’"
Creating a formula to promote litigation, to the appeals court, obviousness is
like pornography: you only know it when you see it. And, like good pornography,
you better look it over carefully.
Continue reading "The Salt of Obviousness"
Posted by Patent Hawk at 10:00 PM | Prior Art
March 23, 2007
Vonage Whacked
Verizon
pressed for an injunction against Vonage, after a jury found three patents
infringed of five asserted. East Virginia district court Judge Claude Hilton indicating he would
consider signing a permanent injunction on the affected technologies was like a toilet
flush on Vonage stock, which dropped 26% today, to $3.
Continue reading "Vonage Whacked"
Posted by Patent Hawk at 2:17 PM | Patents In Business
March 22, 2007
Pressure Drop
Liebel asserted four patents against Medrad. In the second appeal of the
litigation, the appeals court (CAFC
06-1156) concurs with a
district court ruling that Liebel had not enabled broadened claims in two of the
four patents, thus invalidating the patents under
35 U.S.C. § 112, ¶ 1.
Liebel had broadened its claims to ensnare Medrad, and so tripped itself up over
its own greed. The full scope of claims must be enabled. As the CAFC tooted:
"The motto, “beware of what one asks for,” might be applicable here." Concurring
again with the district court, the other two asserted patents were found invalid
by prior art; cited prior art; in summary judgment, with no factual dispute.
Continue reading "Pressure Drop"
Posted by Patent Hawk at 10:29 PM | § 112
Microsoft & Fuji Xerox
Microsoft
announced yesterday evening that it had eloped with Fuji Xerox, inking a broad
patent cross-licensing agreement. From it, Fuji Xerox obtains peace of mind for
its software, some of which includes a Linux base. Microsoft gets to stick Fuji
Xerox technology into Office as it pleases. Terms of the deal were not
disclosed.
Continue reading "Microsoft & Fuji Xerox"
Posted by Patent Hawk at 11:18 AM | Patents In Business
March 20, 2007
Doctrine of Equivalents Screwed
According
to Festo,
prosecution estoppel forecloses enforcement under the doctrine of equivalents
(DOE) owing to surrendered claim scope during prosecution to gain allowance. In
litigation, the rub becomes how closely associated the narrowing of a claim is
to the rejection, and whether the equivalent in the accused product was
foreseeable at the time of prosecution. In Cross Medical v Medtronic (CAFC
05-1415), the majority
find Festo in full flower, while a well-reasoned concurrence rails at the very
principle of tangentiality.
Continue reading "Doctrine of Equivalents Screwed"
Posted by Patent Hawk at 7:23 PM | Claim Construction
Open Outcry
Cantor sued Brokertec over
6,560,580, which claimed trading fixed
income securities, replacing the prior art of "open outcry" trading.
When Cantor asserted '580, it dredged a past it could not erase: Cantor had
initially failed to disclose earlier work, then put forth a disingenuously
deceptive declaration to cover that up. About intent to deceive: "The
affirmative act of submitting an affidavit must be construed as being intended
to be relied upon."
Continue reading "Open Outcry"
Posted by Patent Hawk at 10:50 AM | Inequitable Conduct
March 19, 2007
Copyright Infringement Safe From Patent Infringement
6,614,729 claimed a digital live event recording system, designed to
"virtually eliminate the problem of illegal bootlegs." Evil bastards! So the
Electronic Freedom Foundation (EFF) shot it down.
Continue reading "Copyright Infringement Safe From Patent Infringement"
Posted by Patent Hawk at 12:01 AM | Prior Art
March 18, 2007
Whipping Post
The
patent flogging of Vonage continues, this time by patent holding company Web
Telephony, which asserted two patents against a slew of VOIP players and
wannabes, including Vonage nemesis Verizon, as well as AT&T, Earthlink and
SunRocket.
Continue reading "Whipping Post"
Posted by Patent Hawk at 12:29 AM | Litigation
Chalk One More
Microsoft
won a small victory Wednesday in fending off Alcatel-Lucent's patent onslaught,
when the San Diego district court judge refereeing the conflict pitched
4,763,356, claiming touch-screen form entry, in summary judgment as not
infringed.
Continue reading "Chalk One More"
Posted by Patent Hawk at 12:07 AM | Litigation
March 16, 2007
Recent Settlements
The
vast majority of patent cases settle, often when facing trial, or after a
preliminary ruling, such as Markman (claim construction). With trial scheduled
for Monday, Broadcom and Qualcomm have settled another of their multifarious
cases against one another. Software security maven McAfee settled with Acacia
over a patent on Internet hyperlinks on CDs and DVDs. And the Orlando Utilities
Commission settled with Emergis Technologies for a patented online payment
system.
Continue reading "Recent Settlements"
Posted by Patent Hawk at 11:33 AM | Litigation
March 15, 2007
Patent Speed
In
a press
release celebrating its prosecution con job, the USPTO wants your patent
application on virtual methamphetamine. Just like the self-destructive nature of
chemical speed on the human body, accelerated examination may feel like a rush
towards patent grant, while leaving the patent holder with open-ended liability.
Continue reading "Patent Speed"
Posted by Patent Hawk at 7:22 PM | Prosecution
Microsoft 2007
This
is not patent related, but I feel an obligation to my readers to warn them away
from Microsoft Vista® and Office 2007. I've been using them for almost two
months, and rue the day I transferred to the new computer.
Continue reading "Microsoft 2007"
Posted by Patent Hawk at 2:03 PM |
March 14, 2007
Green Alert
Aiming to get security screening equipment free, the U.S. Airport Police
State, officially known as the Transportation Security Administration (TSA), has
aimlessly wandered into a patent infringement suit, among other charges, between two
competitors, over ads on "divestiture bins" and "composure tables."
Continue reading "Green Alert"
Posted by Patent Hawk at 11:35 PM | Litigation
March 13, 2007
Ready for Patenting?
Ultra
Flex sued PolyPro for infringing
6,186,934 and
6,428,208, going to plastic display bags with “chip hooks” for hanging the
bags on retail display racks. Infringement was undisputed, but PolyPro won
summary judgment via one-year on-sale bar (35
U.S.C. §102(b)). The appeals court (CAFC
06-1497) ruled that
summary judgment was premature, owing to factual dispute as to whether Ultra
Flex's invention had been reduced to practice, and thus "ready for patenting,"
when Ultra Flex started selling the product.
Continue reading "Ready for Patenting?"
Posted by Patent Hawk at 4:42 PM | Prior Art
March 12, 2007
Nucleotide Limits
To
encourage technological development, in November 1996, the USPTO provided a
partial waiver of restriction requirements for claimed nucleotide sequences. In
an about face today, looking to cut pendancy, the agency
rescinds the waiver, effective immediately.
Continue reading "Nucleotide Limits"
Posted by Patent Hawk at 8:12 PM | Prosecution
March 9, 2007
Charge
Consumer
products whiz 3M has sallied forth in Minnesota district court and the ITC over
its lithium-ion battery patents (6,964,828
&
7,078,128). The targets are computer laptop makers: Sony, Lenovo Group (who
bought the IBM PC line), CDW, Batteries COM, Hitachi, Matsushita Industrial
Electronic, Panasonic, Total Micro Technologies, and a host of subsidiary
siblings. Hint to defendants: save yourself grief & take a license.
Posted by Patent Hawk at 3:52 PM | Litigation
March 8, 2007
Hang Up
Losing
business because of lousy service, Goliath Verizon nailed David Vonage for
infringing three patents. The immediate damage to Vonage: $58 million, 70% less
than the $197m sought, and an ongoing 5.5% royalty if Vonage doesn't figure a
workaround. The infringement was found not willful. Verizon is seeking a
permanent injunction. This is but the first patent attack which Vonage must
weather, or wither.
Posted by Patent Hawk at 4:10 PM | Damages
Earth Escapes
Google
Earth escaped an infringement assertion by Skyline Software Systems over
6,496,189, which claims zooming through three-dimensional terrain. Earth herself had no comment.
Continue reading "Earth Escapes"
Posted by Patent Hawk at 10:46 AM | Litigation
March 6, 2007
LegalForce IP
LegalForce
IP launches, in beta, its patent classifieds: patents for sale, and
networking for hungry patent practitioners (none yet onsite). Using "patent
engineers" in India, LegalForce IP also aims to provide a variety of cut-rate
patent services, including prosecution, prior art search, valuation, auctioning,
clearing opinions, licensing & litigation support.
Continue reading "LegalForce IP"
Posted by Patent Hawk at 10:35 PM | Patents In Business
Bloodless
Roche
sued Apex Biotechnology and Hypoguard, then Home Diagnostics, over its diabetes
test devices, patented under
5,366,609 &
RE 36,268. Apex and Hypoguard filed summary judgment motions, mooted by
subsequent settlement under confidential terms. Last Friday, Home Diagnostics
won a summary judgment of non-infringement.
Posted by Patent Hawk at 10:19 PM | Litigation
March 5, 2007
Strained Silicon
Amberwave
asserted
5,158,907 against Intel in July 2005 in
the Eastern District of Texas, later adding
7,074,655. Intel rebutted, and various lawsuits arose in a running battle.
Intel continually cried wolf with non-infringement, while Amberwave was a wolf
snarling willful infringement. Now the posturing is history. Amberwave scored a
settlement from hard-nosed Intel, who laid down like a lamb, getting a 10-year
license to Amberwave's patent portfolio in return for undisclosed big green.
Continue reading "Strained Silicon"
Posted by Patent Hawk at 7:34 PM | Litigation
March 4, 2007
Game Over
In a stunning concession, Sony agreed to pay Immersion $150 million to settle
a five-year litigation battle. Sony puts behind it a string of courtroom defeats.
Posted by Patent Hawk at 11:34 PM | Litigation
Speechless
A
week after getting handed a $1.52 billion tab for infringing MP3 digital music
patents, Microsoft, in a district court ruling Thursday, dodged a different
Alcatel-Lucent patent bullet over speech recognition.
Posted by Patent Hawk at 7:07 PM | Litigation
March 2, 2007
Containment
Franklin
Electric sued OPW for infringing
5,085,257, which claims a sump cover. Summary judgment of noninfringement
was based upon a narrow claim construction of "facilitate positioning." The
appeals court (CAFC
06-1442) took a different view, not reading too much into the figures, and
noting that "[A]n attribute of the preferred embodiment cannot be read into the
claim as a limitation."
Continue reading "Containment"
Posted by Patent Hawk at 12:26 PM | Claim Construction
Continuation Limits Undead
A
couple of days ago, Hal Wegner reported USPTO
Under Secretary Jon Dudas putting nails in the coffin of earlier proposed
continuation restrictions. Now it appears continuation restrictions are undead.
Continue reading "Continuation Limits Undead"
Posted by Patent Hawk at 10:48 AM | Prosecution
March 1, 2007
Patent Enforcement Trends
PricewaterhouseCoopers
released its 2007 survey of patent enforcement. It found less business method
action, more alternative dispute resolutions, and, owing to rising costs, the
first decline in litigation filings in 16 years.
Continue reading "Patent Enforcement Trends"
Posted by Patent Hawk at 12:23 PM | Litigation | Comments (1)
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