May 30, 2007
Uncle Sam Wants You... To Examine Patent Claims
Most poignantly, in an aside, Hogge slaps the Supreme Court for not giving patents the presumption of validity that they have by law (§282):
[M]any people who read KSR will wonder why the Supreme Court applied the "preponderance of evidence" standard instead of the correct "clear and convincing" standard required for invalidity analysis. ("If a person or ordinary skill can implement a predictable variation, §103 likely bars its patentability." Id. at 1740.)
May 29, 2007
Motionless Keyboard (MKC) sued Microsoft, Nokia and Saitek Industries for infringing "motionless" keyboard patents 5,178,477 and CIP 5,332,322. The district court figured out non-infringement based upon a proper claim construction, but missed on public use invalidity, and misunderstood terminal disclaimers. The appeals court set it straight (CAFC 05-1497).
May 27, 2007
Judge Claudia Wilken of the U.S. District Court for Northern California is developing a taste for independent expert witnesses to help sort out patent cases with complex technology. It makes the losing side sore, tempting appeal, but does seem to sweep tidy.
May 26, 2007
Gone to Seed
After illicitly squirreling away seeds, farmer Homan McFarling relentlessly fought Monsanto over the licensing terms he agreed to. In the third appeal of the case, the damages are assessed (CAFC 05-1570).
In reviewing damages awards in patent cases, we give broad deference to the conclusions reached by the finder of fact. [A] jury’s damages award “must be upheld unless the amount is grossly excessive or monstrous, clearly not supported by the evidence or based only on speculation or guesswork.”
May 25, 2007
Upside Down Down Under
In a unanimous decision Wednesday, recognizing the value of patent protection for incremental invention, the Australian High Court ruled in Lockwood v Doric that "a "scintilla of invention" remains sufficient in Australian law to support the validity of a patent." "'Obvious' means 'very plain'." Most notably, unlike the arrogantly parochial U.S. Supreme Court, relying upon its own cogitations and no other, the Australian High Court draws from understanding and precedent worldwide.
May 23, 2007
Clown Time is Over
On May 3rd, Chief Judge Paul Michel at the Court of Appeals for the Federal Circuit (CAFC) wrote Senators Leahy & Hatch on two issues in the Patent Reform Act of 2007, specifically, interlocutory appeals, and apportioning damages; bad ideas, pens Michel.
May 22, 2007
Dead in the Dust
EchoStar shot Forgent's video recorder patent dead. In 2005, Forgent sued 15 companies for infringing 6,285,746, which claims a multitasking video machine, allowing playback while recording. Nine settled, with Forgent raking in $20 million. EchoStar had the nerve to admit infringement, and played straight invalidation poker. The Eastern District of Texas jury liked Echostar's cards.
Non- En Banc Cacophany
Pfizer appealed the CAFC obviousness invalidation of 4,879,303 (see The Salt of Obviousness), asking for an en banc review. A majority rolled it as no dice (CAFC 06-1261o), but there was a brouhaha of dissent, focused on the court overstepping its bounds, both in disregarding trial courts and in finding obvious that which was not, further withstanding the momentous repercussions.
"True creativity is characterized by a succession of acts, each dependent on the one before and suggesting the one after." - Edwin Land, Polaroid Founder
May 21, 2007
Steven Byrne asserted RE34,815, claiming a particular landscaping edge trimmer using a string cutter, against Black & Decker, which countered with a summary judgment motion of non-infringement after discovery; granted. Byrne appealed the claim construction (CAFC 06-1523).
May 18, 2007
McKesson Information Solutions sued Bridge Medical for infringing 4,857,716. The patent was trashed by inequitable conduct; a district court ruling upheld at the appeals level (CAFC 06-1517) in a split decision. Has the appeals court, in the dissent of Judge Newman, returned "to the "plague" of encouraging unwarranted charges of inequitable conduct, spawning the opportunistic litigation that here succeeded despite consistently contrary precedent"?
May 17, 2007
Between the Lines
John Sullivan, General Counsel of the U.S. Department of Commerce (DOC), has penned a note of support for its child, the patent office, and sent it off to those good folks on the Hill considering patent reform.
The USPTO's accelerated examination program has inherent drawbacks. Experience has shown it to be execrable, requiring excruciating planning.
May 16, 2007
Another Bite at the Apple
Microsoft wants another chance to escape the $1.5 billion punishment for infringing Alcatel-Lucent's streaming media patents, asking for a new trial in light of the SCOTUS rulings in Microsoft v. AT&T, and especially KSR v. Teleflex. The claims are obvious "under the KSR Standard," Microsoft toots. Hell, everything's obvious under the KSR Standard.
May 15, 2007
Urging A Rethink
A group of 111, the Innovation Alliance, oriented towards biotechnology companies, but representing a variety of viewpoints, voices concern to Congress that significant portions of the Patent Reform Act of 2007 are wrong-headed.
May 14, 2007
The Dynamics of Obviousness
The Supreme Court ruling in KSR v. Teleflex unleashed wide-ranging dynamics: diminishing the value of patent portfolios, helping and hurting start-up companies, and promoting generic drugs.
Patent Board of Arrogance and Interferences
The USPTO Patent Board of Appeals and Interferences (BPAI) displayed its arrogance in an interference between two contestants for a patent relating to "methods of cutting veneer from logs of wood," namely, between Thomas Miller and Robert Brand. Not even bothering with developing a written record, BPAI just used its own judgment. Not the way business should be done, the appeals court said (CAFC 06-1419).
Microsoft's Dull Patent Bludgeon
Roger Parloff, Fortune senior editor, has written a fascinating article in CNN Money.com about the patent roadkill of Redmond fumbling about, trying to squeeze blood from the rock of Linux.
May 11, 2007
In battling Proctor & Gamble for a patent for dishwashing detergent tablets, Düsseldorf-based Henkel appealed an anachronism of U.S. patent law - an interference, an area of patent law so obscure that even the Patent Board of Appeals and Interfernces (BPAI) can't get it right. This little soap opera only stops when the U.S. adopts the more rational first-to-file regime - if you want a patent, file for one; whoever files first has priority.
Belying its own legislative heritage, the bipartisan Patent Reform Act of 2007 grossly complicates patent infringement compensation, moving from the current reasonable royalty to an outrageous conjecture for a damages award "applied only to that economic value properly attributable to the patent’s specific contribution over the prior art." This economist throws his head back in laughter at this little obscenity of insensibility, reminiscing about the scalding apportionment suffered over 60 years ago.
May 10, 2007
Patent litigation can make or break a company. VOIP vendor Vonage ate Verizon's lunch until Verizon pounded back with a patent lawsuit, putting Vonage's very existence on the line. On the other side of the coin, Burst.com snagged $62 million in a settlement from Microsoft in 2005 for its patented streaming media technology, and just garnered a favorable Markman ruling against Apple, setting the stage for a payoff. The arcane ins and outs of courtroom patent battles require a knowledgeable insider of the game to read the tea leaves early and accurately. Hedge fund managers, always looking for an edge to lead what will become the pack, are now hiring patent litigators as scouts, reporting back skirmish results that could tip the balance, and move stock prices.
Continuation Rules Update
Hal Wegner reports from the Boston AIPLA meeting details of the pending USPTO continuation rules: limits to the number of continuations and RCEs.
May 9, 2007
Ordinary Skill in the Art
In 1941, the Supreme Court required a "flash of genius" for a patent to stand. Congress lowered that high standard in 1952 to non-obviousness to one with "ordinary skill in the art." Now again, more than interpretation, the Supreme Court exceeded the law in its KSR v. Teleflex decision. In its own flash of unpatentable creative insight, SCOTUS redefines the statutory "person having ordinary skill in the art" into someone omnificent and possessing comprehensive technical expertise.
Common Sense Turns Wily
The echo of SCOTUS KSR, the domino effect of invalidation by obviousness, has begun. For example, translating a mechanical toy to an electronic version with additional features is old hat. In Leapfrog v. Fisher-Price & Mattel, the CAFC upholds a district court ruling of obviousness that's a real stretch. An electronic child learning toy is obvious by combination of a mechanical version disclosed in a prior art patent, a product with a "slightly different mode of operation," and, to get the screen reader, well, there were screens around; no particular prior art need be cited. "Substantial evidence of commercial success, praise, and long-felt need" yield no counterweight "given the strength of the prima facie obviousness showing."
May 8, 2007
Amazon & IBM Waltz
IBM and Amazon.com inked a comprehensive settlement and cross-licensing of their respective patents, ending years of dispute. Amazon pays for the privilege.
May 7, 2007
Keeping the Software Down
In spite of the Supreme Court broadly opining in 1980 that "anything under the sun made by man is patentable," the SCOTUS ruling in Microsoft v. AT&T on April 30 was designed, from a patent standpoint, to maintain relegation of software as a second-class technology.
May 3, 2007
USPTO KSR Memo
Margaret Focarino, USPTO Deputy Commissioner for Patent Operations, issued a memo of the salient points of the Supreme Court's KSR v. Teleflex ruling. As guidance for examination, the hazy Graham four-factor test predominates, while the CAFC's more structured TSM test is demoted to "a helpful insight." Examiners are advised to state their reasoning for an obviousness rejection.