April 30, 2007
In its landmark decision of KSR v. Teleflex, reversing the appeals court, the Supreme Court has broadened the interpretive scope of 35 U.S.C. § 103(a), the obviousness clause. Patentable subject matter is thus constricted. In the large, in light of the ruling, a known combination of elements are only patentable if their combined functionality yields the unexpected. What was once impermissible hindsight is now permissible.
April 28, 2007
Let me not reinvent the wheel here: Dennis Crouch at Patently-O reports on Hal Wegner getting the lowdown that the USPTO has laid the track to limit continuations, sensibility & legality be damned. Read on in Patently-O.
The Patentability Bar & Recourse
Hal Wegner figures the problem with junk patents is not that they are occasionally granted, which is inevitable, or that the bar of patentability is too low (it isn't), but that the adjudication of patents is an expensive crap shoot. The crap shoot owes to the lack of a dedicated patent court. Barring judicial reform, Hal contemplates post-grant review as a reasonable stop-gap.
April 27, 2007
Sausage in the Making
Hal Wegner reports on yesterday's patent reform hearing: Before an overflow hearing room on an internationally available web broadcast, Chairman Howard Berman of the House Judiciary Subcommittee relevant to patents hosted a most informative and candid hearing yesterday afternoon joined by roughly ten of his committee colleagues, including Rep. Dan Issa, undoubtedly the most patent-interested member of Congress in some time (and like Abraham Lincoln an inventor-user of the patent system).
PODS ran over Porta Stor for infringing 6,071,062, claiming moving storage containers onto and from trucks. On appeal (CAFC 06-1504), the district court's claim construction was reversed, prosecution estoppel made road kill of the doctrine of equivalents, and so went the infringement ruling.
April 25, 2007
The nadir of the USPTO allowing lousy patents was over a decade ago. Now, political climate changed, the continual stench of patent reform in the air, as often as not, agency rejections border on the absurd in stringency without efficacy. Conversations with other prosecutors confirm the observation that examination without spurious noise has become the exception.
April 24, 2007
Vonage Off Hook
A few hours after hearing oral arguments, the appeals court (CAFC) granted Vonage reprieve from an injunction for infringing Verizon patents.
April 23, 2007
Case law broadening of prior art anticipation is bloating, and badly needs gas pills in the form of statutory guidance. But Congress, drafting patent reform in secret thrall to select corporate interests, is all deaf ears.
In a radical new precedent, prior art can anticipate a process even though unrecognized at the time. In a bitter 2-1 split decision, the appeals court (CAFC 04-1562) affirms a district court ruling of "inherent anticipation."
April 19, 2007
Patent Reform Act of 2007
A unified, bipartisan Patent Reform Act of 2007 emerged from both the House & Senate yesterday. Much of it is an improvement, but a bit of it is an abortion of sensibility.
Microsoft & Samsung Romance Dance
Microsoft & Samsung Electronics waltzed themselves to a broad cross-licensing agreement. Details of the dance steps were not disclosed, but involves televisions, computers, digital video recorders and other digital media recorders. Predictably, both sides were cooing over the wooing.
Hot Air, No Gas
Advanced Technology Materials (ATMI) sued Praxair for infringing 6,343,476 & 6,101,816, going to gas & fluid storage containers. The New York district court judge summarily pitched the case owing to obvious invalidity (§103). ATMI appealed (CAFC 06-1540) to find out what an expert witness was worth.
April 18, 2007
You Get What You Pay For
The Software Freedom Law Center asserts that every Microsoft Windows® user pays $21 in patent tax, based on rough calculations of patent infringement damages, settlements, and legal fees Microsoft paid, whereas Linux users pay $0. So, Windows users, you're paying for the best software Microsoft could make, regardless of who invented the technology, whereas Linux users don't have to pay anything, because Linux doesn't have any patented innovation in it, at least hypothetically; to wit, Linux users pay $0 until Linux is sued for infringing patents, which it most certainly does. In other words, Linux users are patent tax evaders. Software freedom indeed.
Claim Construction Roller Coaster
Intamin sued Magnetar for infringing 6,062,350, claiming a roller coaster brake system. The district court found, in summary judgment, non-infringement, based upon claim construction; appealed (CAFC 05-1546). Also at issue was the threshold of investigation required to trigger an infringement complaint (Rule 11(b)).
April 17, 2007
Patent Reform Principles
Numerous vested interests vie to skew statutory patent reform, many aimed at advancing parochial self-interest, all the while advertising the guise of equity. But, if equity and practicality were the goals, what principles should guide patent reform to realize the Constitutional mandate, and what are the implications of those guiding principles?
April 15, 2007
In IP Law 360, patent prosecutor Scott Harris of Fish & Richardson hammers against the U.S. harmonizing its patent laws with other countries, especially against enhancing the certainty of patent enforcement and minimizing litigation cost.
United States patent law has a goal of protecting the inventor and the invention - no matter how much that protection will complicate the patent system.
April 14, 2007
Sinking Patent Sun
Japan may lead the world in junk patents, according to a recent study of patent enforcement in Japan. Patent assertions in 2006 held up only 11% of the time; 89% died in trial, and 80% of appeals were upheld.
April 12, 2007
Humerus Claim Construction Nailed
Acumed successfully sued Stryker for infringing 5,472,444, claiming a nail to fix a badly broken arm. The district court hurt Stryker with willful infringement and a permanent injunction. Stryker appealed the claim construction (CAFC 06-1260) in hopes of a break.
In the wake of getting whumped by Verizon for patent infringement, Vonage CEO Michael Snyder has walked the plank on the sinking ship. Vonage founder Jeffrey Citron puts back on his old captain's cap. Vonage plans to pare itself down to fighting weight in the aftermath.
A ruckus erupts from a report by patent attorney Charles Van Horn that the USPTO plans to go ahead in imposing limits on the number of continuations, as well as the number of claims examined per patent. Speculation is that the rules will be published toward the end of summer, with, essentially, 30 days notice for prosecutors to file continuations out the wazoo. After hearing the rumor, Patent Hawk, tracked to the corner bar, slamming whiskey shots like a jackhammer, was heard to slur, "This kind of talk stinks up the joint."
April 11, 2007
Sweetness & Light
Sucralose, essentially chlorinated cane sugar, has one-eighth the calories of sugar by weight, but is 600 times sweeter. Splenda is the trade name for this wildly popular sugar substitute. Maker and patent holder Tate & Lyle, having successfully sued for patent infringement before, are caning three Chinese manufacturers before the ITC, along with 18 importers.
April 10, 2007
The Health Minister of India, Anbumani Ramados, is begging Novartis to drop its challenge to India's patent laws. Facing mounting pressure from interest groups, and some internal criticism from shareholders, Novartis has changed tack slightly in recent weeks, but has yet to yank its lawsuit. The begging is a velvet glove over the mailed fist of compulsory licensing.
April 9, 2007
DVD technology is, needless to say, standardized, and aspects of the technology patented. Toshiba and eight other companies created the DVD6C Licensing group as a ready means for DVD player or recorder companies to obtain the necessary licenses. So far, over 220 companies have signed on. Toshiba has rounded up 17 companies, mostly Hong Kong and China based, that allegedly use the official DVD logo, but do not have paid-up licenses; the venues: Northern California district court & the ITC.
April 8, 2007
The appeals court granted Vonage a stay late Friday afternoon from a district court injunction against accepting new customers. Verizon has until the end of this week to respond, then the appeals court will decide whether to let Vonage continue to peddle itself.
April 6, 2007
"Stadium Seat Turkey Vest" got Cabela in trouble. With a product name like that, you'd expect no less. Anyway, Bass Pro sued Cabela for infringing 5,620,227, claiming a combination of wearable vest with a portable seat. They settled. Two years later, Cabela launched "EZ Chair Combo." Bass Pro was not amused.
District court Judge Claude Hilton slapped a odd order on Vonage today, stopping it from signing up new customers. Vonage had been found to have infringed three Verizon patents. Verizon gave the judge the idea. Besides the headache, this gives Vonage one more thing to appeal.
Nokia Dials It In
Nokia and Qualcomm are tussling over patents. On Thursday, Nokia squeaked that it would pay Qualcomm $20 million for a quarterly license for Qualcomm patents related to CDMA wireless technology. In reply, Qualcomm snorted: "They have no right to do that."
April 5, 2007
April 4, 2007
The appeals court SanDisk ruling regarding declaratory judgment has a least one commenter consternated. David Fox of Fulbright & Jaworski whines in IP Law 360: "SanDisk is likely to have a very strong adverse impact on small technology companies and universities that may not have the means to defend their patents in declaratory judgment actions. The decision will likely result in the inability of of such patentees to license patents, especially to large companies. This could have a profoundly negative effect on the development of technology in the United States." If there's a kernel of truth in Fox's Chicken Little declaration, it's good news disguised as bad news.
April 3, 2007
Central Admixture Pharmacy Services (CAPS) sued Advanced Cardiac Solutions (ACS) for infringing 4,988,515, claiming a nourishing solution used during heart surgery. The heart of the matter was CAPS' Certificate of Correction, changing a claim term, and thereby broadening the scope of the claims. [CAFC 06-1307]
April 1, 2007
Uncertainty is Not Obvious
Indeed, it often requires as acute a perception of the relations between cause and effect, and as much of the peculiar intuitive genius which is a characteristic of great inventors, to grasp the idea that a device used in one art may be made available in another, as would be necessary to create the device de novo. And this is not the less true if, after the thing has been done, it appears to the ordinary mind so simple as to excite wonder that it was not thought of before. The apparent simplicity of a new device often leads an inexperienced person to think that it would have occurred to any one familiar with the subject; but the decisive answer is that, with dozens and perhaps hundreds of others laboring in the same field, it had never occurred to any one before. The practiced eye of an ordinary mechanic may be safely trusted to see what ought to be apparent to every one. - C & A Potts & Co. v. Creager, 155 U.S. 597, 607-08 (1895).