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April 30, 2007
Obzilla
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.
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.
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
Reprieve
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.
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
Kickboxing
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.
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).
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