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May 30, 2007
Uncle Sam Wants You... To Examine Patent Claims
In
IP Law 360,
Mark Hogge at
Greenberg Traurig pans public patent prior art
panning: "Processing and issuing patents is a business enterprise for the
government."
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.)
Continue reading "Uncle Sam Wants You... To Examine Patent Claims"
Posted by Patent Hawk at 12:15 AM | Prior Art | Comments (0)
May 29, 2007
KSR Playing
Hal
Wegner turns his keen mind to the SCOTUS KSR decision in the large, its
potential impact at the USPTO, and factors for prosecutors to consider. Herein, excerpts from
a crucial paper.
Continue reading "KSR Playing"
Posted by Patent Hawk at 3:40 PM | Prior Art | Comments (0)
Motionless Litigation
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).
Continue reading "Motionless Litigation"
Posted by Patent Hawk at 3:10 PM | Prior Art | Comments (0)
May 27, 2007
Streamline Expert
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.
Continue reading "Streamline Expert"
Posted by Patent Hawk at 9:39 PM | Litigation | Comments (0)
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.”
Continue reading "Gone to Seed"
Posted by Patent Hawk at 12:57 AM | Damages | Comments (0)
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.
Continue reading "Upside Down Down Under"
Posted by Patent Hawk at 12:32 AM | International | Comments (1)
May 23, 2007
Clown Time is Over
Grossly
overreaching by asserting
5,721,832 against Overstock, silly Furnace Brook had the temerity to appeal
its
district court summary dismissal. (CAFC
2007-1064)
Continue reading "Clown Time is Over"
Posted by Patent Hawk at 8:19 PM | Claim Construction | Comments (0)
Damaging Portions
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.
Continue reading "Damaging Portions"
Posted by Patent Hawk at 12:54 PM | The Patent System | Comments (0)
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.
Posted by Patent Hawk at 10:15 PM | Litigation | Comments (0)
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.
Continue reading "Non- En Banc Cacophany"
Posted by Patent Hawk at 1:31 PM | Prior Art | Comments (0)
Incremental Invention
"True
creativity is characterized by a succession of acts, each dependent on the one
before and suggesting the one after." - Edwin Land, Polaroid Founder
Continue reading "Incremental Invention"
Posted by Patent Hawk at 12:33 PM | Prior Art | Comments (0)
May 21, 2007
Claim Whacker
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).
Continue reading "Claim Whacker"
Posted by Patent Hawk at 10:01 PM | Claim Construction | Comments (0)
May 18, 2007
The Plague
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"?
Posted by Patent Hawk at 2:38 PM | Inequitable Conduct | Comments (0)
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.
Continue reading "Between the Lines"
Posted by Patent Hawk at 12:22 PM | The Patent System | Comments (0)
Self-Destructive Examination
The
USPTO's accelerated examination program has
inherent drawbacks. Experience has shown it to be execrable, requiring
excruciating planning.
Continue reading "Self-Destructive Examination"
Posted by Patent Hawk at 12:00 AM | Prosecution | Comments (1)
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.
Continue reading "Another Bite at the Apple"
Posted by Patent Hawk at 12:26 AM | Litigation | Comments (0)
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.
Continue reading "Urging A Rethink"
Posted by Patent Hawk at 5:00 PM | The Patent System | Comments (0)
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.
Continue reading "The Dynamics of Obviousness"
Posted by Patent Hawk at 10:30 PM | The Patent System | Comments (0)
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).
Continue reading "Patent Board of Arrogance and Interferences"
Posted by Patent Hawk at 5:37 PM | Prosecution | Comments (0)
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.
Continue reading "Microsoft's Dull Patent Bludgeon"
Posted by Patent Hawk at 12:39 AM | Patents In Business | Comments (0)
May 11, 2007
Soap Opera
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.
Posted by Patent Hawk at 11:50 AM | Prosecution | Comments (0)
Damaging Damages
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.
Continue reading "Damaging Damages"
Posted by Patent Hawk at 12:01 AM | Damages | Comments (0)
May 10, 2007
Litigation Intelligence
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.
Continue reading "Litigation Intelligence"
Posted by Patent Hawk at 5:32 PM | Patents In Business | Comments (0)
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.
Continue reading "Continuation Rules Update"
Posted by Patent Hawk at 10:58 AM | Prosecution | Comments (0)
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.
Continue reading "Ordinary Skill in the Art"
Posted by Patent Hawk at 2:50 PM | Prior Art | Comments (1)
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."
Continue reading "Common Sense Turns Wily"
Posted by Patent Hawk at 11:00 AM | Prior Art | Comments (0)
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.
Continue reading "Amazon & IBM Waltz"
Posted by Patent Hawk at 10:45 AM | Patents In Business | Comments (0)
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.
Continue reading "Keeping the Software Down"
Posted by Patent Hawk at 8:31 PM | Case Law | Comments (0)
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.
Continue reading "USPTO KSR Memo"
Posted by Patent Hawk at 5:55 PM | Prosecution | Comments (0)
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