June 28, 2007
Star Scientific sued tobacco giant R.J. Reynolds in May 2001 for infringing its tobacco curing patents. R.J. Reynolds fought back, winning invalidity by indefiniteness in January for 6,202,649 and 6,425,401, and now egregious inequitable conduct for 6,805,134. Law firms participated in a cover-up.
In April of last year Netflix sued Blockbuster for infringing its patents for user wish lists and "no late fees" features, leading to a bruising battle. In a surprise announcement, the two settled earlier this week, terms undisclosed; so hush-hush that the judge in the case washed his hands of it all, even if the settlement agreement falls apart.
June 27, 2007
The Saunders Group sued Comfortrac, Care Rehab and Orthopaedic Products for infringing 6,899,690, claiming a lightweight cervical traction device. The district court granted summary judgment of noninfringement on a narrow claim construction. With a lot to consider in a tightly reasoned case, the appeals court found the district court claim construction needing therapy. (CAFC 06-1576)
William Young patented a surgery procedure for removing cat claws. In suing Lumenis for infringing, the district court ruled in summary judgment the asserted patent indefinite under 35 U.S.C. § 112, ¶ 2, over the claim term "near," and unenforceable for inequitable conduct, in part because Young was tardy giving the patent office a litigation deposition during reexamination, though timely enough for the examiner to consider its import. Young successfully appealed. (CAFC 06-1455)
June 26, 2007
Hal Wegner reports: The notorious proposed PTO rules that have generated truly unprecedented negative responses from the patent community remain in limbo but with a substantial chance that the new rules will be implemented. Despite serious discussions with personal interviews with OMB by at least five different groups, there has been no indication given that the OMB will block the PTO's rulemaking efforts.
Considering the injunction facing Vonage from infringing Verizon patents, an injunction that could effectively force Vonage out of business, in oral arguments today before a CAFC three-judge panel, Judge Timothy Dyk wondered aloud about a middle ground.
June 25, 2007
MicroStrategy sued Business Objects for infringing three patents related to decision support software. In an affirmation of what Hal Wegner called "an unforgiving trend of finding against a patent owner’s sloppy use of the English language," summary judgment of noninfringement and invalidity were upheld (CAFC 06-1320).
Curt Rose, associate general counsel for Hewlett-Packard, in support of the much ballyhooed Peon-to-Patent pilot program, blathered, "We don't want to get patents issued that aren't valid." One has to wonder why HP, IBM, Intel, and other huge computer technology companies are so penny-wise and pound-foolish to use amateurs for patentability searches when they ought to, and can easily afford to, employ professional prior art searchers.
Rembrandt Technologies sued 15 media companies for infringing patents related to HDTV and high-speed Internet standards. Defendants include Fox, ABC, CBS, NBC, Time Warner, Adelphia, and Comcast. To the dismay of Rembrandt, the Judicial Panel on Multidistrict Litigation consolidated the cases into a single suit (ruling). The cases had been spread from New York (2) to Delaware (6) to the Eastern District of Texas (7).
June 23, 2007
Two groups representing diverse interests met with officials from the Office of Management and Budget (OMB) at the White House on June 14 & 15 to thwart the patent office's proposed rule changes to limit continuations and change examination procedures. USPTO thoughtlessness and misconduct at the highest level of management appear egregious.
On Friday, the ITC denied Qualcomm's request to stay its ban on importing Qualcomm cell phone chips. Qualcomm's only hopes are an unlikely emergency stay from the appeals court (CAFC) while waiting a presidential veto of the ban.
June 22, 2007
Money Talks - On the Cell Phone
The June 7 ITC ban on Qualcomm chips, stemming from rival Broadcom's patent infringement assertion, has drawn fire from CTIA, a wireless industry trade group. CTIA wrote a letter to President Bush Wednesday, requesting a veto of the ITC action, citing the economic damage such a ban would have.
June 21, 2007
Michael Bender's involvement in an invention promotion scheme got him excluded from USPTO prosecution. He fought his exclusion all the way to the appeals court (CAFC 06-1243). If only Bender had been so diligent on behalf of the people he represented.
Rushed & Wrong
Kevin Kearns at the Washington Times tells us what he really thinks about the proposed Patent Reform Act of 2007: "patent nonsense [that] has suddenly become a rush project in the Senate and House committees of jurisdiction."
June 20, 2007
Smelling blood in the water, sharks circle the wounded whale known as the Patent Reform Act of 2007, S. 1145 and H.R. 1908. Over 200 organizations write Judiciary committee chairmen and leading committee members of both houses to exclaim the need to erase major proposed changes to current patent law.
June 19, 2007
Up the Sleeve
In a heavy-handed non-precedential ruling, the appeals court finds potential for obviousness where the district court found none (CAFC 07-1044). The Supreme Court's KSR mandate that obviousness is a matter of law, and thus within the province of summary judgment by a district court, gets the CAFC de novo treatment, the appeals court discovering issues of fact. Chief Judge Michel, ready patent killer, practices his chops.
June 18, 2007
Biomedino appealed an indefiniteness ruling for claims of its asserted 6,602,502 against Waters Technologies. '502 went to detecting psychoactive drugs in the blood. While the courts differed on the applicable paragraph, Biomedino's patent trip turned out to be a bummer.
For all the pontificating he is doing, hyperactive CAFC Chief Judge Michel might want to consider blogging.
June 16, 2007
A Blow Against the Empire
The USPTO pseudo-secret rules package to limit continuations goes forward, but not without resistance. These rules were self-interestedly concocted by short-sighted patent agency management. An attempt to stop the rules from going into effect is being made by going over the heads of patent agency management.
June 15, 2007
KSR turned traditional patent application drafting into suicide. Backgrounds logically provided a historical context for one or more problems to be solved, the inventive solution being the basis for the claims. Post-KSR, problem-solving storytelling now provides a roadmap to apply hindsight in invalidating a patent as obvious.
Hal Wegner has analyzed the current status of case law regarding chemical compound obviousness, and holds that "KSR and Pfizer v. Apotex manifest fundamental misunderstandings of chemical practice case law."
June 14, 2007
Seven years as a pro se prosecutor, and what stands out most, now more so than years before: examiners tend to be sloppy, particularly mapping prior art to claim locutions (let's not call them limitations). Why? The crush of time. Patent agency management seems to liken patent examination to sorting the mail - quality just has to do with shoving it out the door. Examiners know that patent quality is a function of having time to do a good job. What we have here is a failure to communicate.
June 13, 2007
A couple of nails showed up near the coffin of the Patent Reform Act of 2007, placed by CAFC Chief Judge Paul Michel, who is turning into quite the patent mover and shaker (last month's letter). Michel's keyboard begs to type the adjective "stupid" in describing the proposed revision to § 284 on damages, something Michel himself parlays with but a tad more reserve.
CAFC Chief Judge Plays Patent Examiner
Hal Wegner reports: In In re Comiskey, Fed. Cir. App. No. 2006-1286 (Michel, C.J., Dyk, Prost, JJ.), the overworked court is now looking for additional work beyond its statutory mandate, pondering whether to affirm the PTO in an ex parte appeal on the basis of a ground of rejection that is not before the court, viz., a patent-eligibility determination under 35 USC § 101.
June 12, 2007
Atmel sued AuthenTec for infringing 6,289,114, claiming a fingerprint reader. AuthenTec filed a summary judgment motion, that Atmel was not the owner of the patent, hence did not having standing to sue. The district court in Northern California (4:06-cv-02138-CW), following CAFC precedent, set standing: an exclusive licensee has a right to sue if joined by the patent owner.
June 11, 2007
A majority of the Republicans on the Senate Judiciary Committee - Coburn, Grassley, Kyle, Sessions and Brownback, wrote Senate Judiciary Chairman Leahy and ranking committee Republican Arlen Specter, observing that last week's hearings rendered obvious that the Patent Reform Act of 2007 is badly done.
A Bug's Life
Dr. Craig Venter, a pioneer in the effort to sequence the human genome, worked for years on the daunting task of artificially constructing microbes from selected genetic material. Venter has now filed for patent protection in the U.S. and with WIPO (World Intellectual Property Organization). Naturally, groups opposed to genetic engineering are mortified.
June 10, 2007
Hal Wegner writes of the qualifications of recent USPTO management, elevation of title belying comparative depth of experience.
WSJ on Patents
Pro-get-on-with-the-business organ The Wall Street Journal made bird noises about patents Saturday: hooting at the ITC injunction against Qualcomm, and squawking about patent battles.
June 8, 2007
ITC Hangs Up Qualcomm
Conflicted in administering harsh medicine, the U.S. International Trade Commission (ITC) hesitated for weeks, then, in a 4-2 decision yesterday, banned the import of new models of cell phones and PDAs using Qualcomm chips that infringed Broadcom patents.
June 7, 2007
Patents at Work
Microsoft and South Korea-based LG Electronics signed a broad cross-licensing agreement. The agreement allows LG to use Microsoft patented technology in its Linux-based embedded devices. The deal was announced late Wednesday.
The USPTO proudly announces it Peer Review Pilot program, beginning June 15, letting a limited number of applicants volunteer their computer technology patent applications for target practice by the prior art packing public.
June 6, 2007
Not Its Time
Single-mindedness was not on the agenda. Legislation in the making, and only the sausage maker beams and winks knowingly as too many patent chefs stir the gumbo. The thankful result of today's Senate hearing is watching the Patent Reform Act of 2007 appear the statutory tub of lard that it is.
Do Some Work For Us
Patent office director Jon Dudas testified before the Senate this morning, complaining about patent examiners having to examine patents - it was just too much work. "There ought to be a shared responsibility for patent quality among the patent office, the applicants and the public."
June 4, 2007
Wireless patent maven Qualcomm started a patent war with Broadcom in July 2005. The ongoing confrontation, involving a wide-ranging slew of patent assertions from both sides, has been a multi-faceted complexity on multiple fronts.
One patent family stands out: 5,452,104 and 5,576,767, claiming a video codec that Qualcomm figures is part of the H.264 video compression standard. Qualcomm tried to nail Broadcom for adhering to the H.264 standard.
Broadcom accused Qualcomm of participating in the standard setting as part of the Joint Video Team (JVT), and in the process violating JVT's policy requiring participants to disclose related patents. Qualcomm repeatedly denied during trial that it had any relationship with JVT during the standard-setting process, and fought to exclude any evidence related to "a list of subscribers to a JVT ad hoc working group." Qualcomm categorically denied any participation: "There are no e-mails."
Another Bite with a Fresh Rabbit
Giving large corporations every opportunity to treat the patent system as their own private reserve, the USPTO will give Microsoft another chance to invalidate the Eolas web browser plug-in patent, which Microsoft was found to have expensively infringed with its ActiveX technology. This episode, provoking an interference, Microsoft pulls a rabbit out its hat that claims that it, Big Genius, invented the technology, not the puny patentee.
After becoming pals with Novell last year, to encourage others to buddy up, Microsoft bigwigs recently boasted that 235 of its patents were infringed by open-source products. Now Linux software distributor Xandros has inked a five-year pact with Big Softie, providing "patent covenants" to Xandros customers, so they don't have to worry about being sat on by Mr. 235. This is Microsoft's way of making friends.