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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.

Continue reading "Obzilla"

Posted by Patent Hawk at 2:16 PM | Prior Art | Comments (2)

April 28, 2007

Continuation Limits

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.

Posted by Patent Hawk at 8:23 PM | Prosecution

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.

Continue reading "The Patentability Bar & Recourse"

Posted by Patent Hawk at 8:13 PM | The Patent System

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).

Continue reading "Sausage in the Making"

Posted by Patent Hawk at 12:08 PM | The Patent System

Truckin' Estopped

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.

Continue reading "Truckin' Estopped"

Posted by Patent Hawk at 11:48 AM | Claim Construction

April 25, 2007

Junk Patents

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.

Continue reading "Junk Patents"

Posted by Patent Hawk at 8:06 PM | Prosecution

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.

Continue reading "Vonage Off Hook"

Posted by Patent Hawk at 2:34 PM | Patents In Business

April 23, 2007

Bloated Anticipation

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."

Continue reading "Bloated Anticipation"

Posted by Patent Hawk at 8:48 PM | Prior Art | Comments (2)

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.

Continue reading "Patent Reform Act of 2007"

Posted by Patent Hawk at 8:45 PM | The Patent System | Comments (1)

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.

Posted by Patent Hawk at 12:23 PM | Patents In Business

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.

Continue reading "Hot Air, No Gas"

Posted by Patent Hawk at 11:47 AM | Prior Art

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.

Continue reading "You Get What You Pay For"

Posted by Patent Hawk at 3:47 PM | Patents In Business

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)).

Continue reading "Claim Construction Roller Coaster"

Posted by Patent Hawk at 1:39 PM | Claim Construction

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?

Continue reading "Patent Reform Principles"

Posted by Patent Hawk at 1:28 AM | The Patent System

April 15, 2007

Patent Harmonization

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.

Continue reading "Patent Harmonization"

Posted by Patent Hawk at 12:32 AM | 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.

Continue reading "Sinking Patent Sun"

Posted by Patent Hawk at 11:41 PM | International

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.

Continue reading "Humerus Claim Construction Nailed"

Posted by Patent Hawk at 2:37 PM | Claim Construction

Vonage Roils

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.

Continue reading "Vonage Roils"

Posted by Patent Hawk at 12:32 PM | Patents In Business

Continuation Funk

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."

Continue reading "Continuation Funk"

Posted by Patent Hawk at 12:03 PM | Prosecution

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.

Continue reading "Sweetness & Light"

Posted by Patent Hawk at 2:48 PM | Patents In Business

April 10, 2007

India Begs

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.

Continue reading "India Begs"

Posted by Patent Hawk at 5:09 PM | International

April 9, 2007

DVD Standard

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.

Continue reading "DVD Standard"

Posted by Patent Hawk at 5:06 PM | Patents In Business

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.

Posted by Patent Hawk at 8:52 PM | Litigation

April 6, 2007

Vest Turkey

"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.

Continue reading "Vest Turkey"

Posted by Patent Hawk at 8:37 PM | Claim Construction

Hung Up

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.

Continue reading "Hung Up"

Posted by Patent Hawk at 11:55 AM | Litigation

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."

Continue reading "Nokia Dials It In"

Posted by Patent Hawk at 12:27 AM | Patents In Business | Comments (1)

April 5, 2007


Reebok has sued Nike in the Eastern District of Texas for infringing 7,168,190, claiming a collapsible shoe. Nike launched the allegedly infringing line of shoes, called "Free," in 2004.

Continue reading "Kickboxing"

Posted by Patent Hawk at 4:34 PM | Litigation

April 4, 2007

Blowback Dynamics

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.

Continue reading "Blowback Dynamics"

Posted by Patent Hawk at 12:09 AM | Patents In Business

April 3, 2007

Bad Solution

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]

Continue reading "Bad Solution"

Posted by Patent Hawk at 11:53 AM | Claim Construction

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).

Continue reading "Uncertainty is Not Obvious"

Posted by Patent Hawk at 12:00 AM | Prior Art