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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.

Continue reading "Snuffed"

Posted by Patent Hawk at 8:48 PM | Inequitable Conduct | Comments (4)

Dark Passage

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.

Continue reading "Dark Passage"

Posted by Patent Hawk at 1:00 AM | Litigation

June 27, 2007

Claim Traction

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)

Continue reading "Claim Traction"

Posted by Patent Hawk at 10:08 PM | Claim Construction

Cat's Claw

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)

Continue reading "Cat's Claw"

Posted by Patent Hawk at 1:07 PM | Claim Construction

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.

Continue reading "USPTO Rules"

Posted by Patent Hawk at 6:22 PM | Prosecution

Middle Ground

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.

Continue reading "Middle Ground"

Posted by Patent Hawk at 12:18 PM | Litigation

June 25, 2007

Strategic Misdecision

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).

Continue reading "Strategic Misdecision"

Posted by Patent Hawk at 4:57 PM | § 112

Patent Coolies

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.

Continue reading "Patent Coolies"

Posted by Patent Hawk at 12:43 AM | Prior Art

Tuned In

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).

Continue reading "Tuned In"

Posted by Patent Hawk at 12:00 AM | Litigation

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.

Continue reading "Accountability"

Posted by Patent Hawk at 9:01 PM | The Patent Office | Comments (1)

Qualcomm Denied

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.

Continue reading "Qualcomm Denied"

Posted by Patent Hawk at 12:24 AM | Patents In Business

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.

Continue reading "Money Talks - On the Cell Phone"

Posted by Patent Hawk at 1:22 AM | Patents In Business

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.

Continue reading "Shunned"

Posted by Patent Hawk at 12:24 PM | The Patent Office | Comments (1)

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."

Continue reading "Rushed & Wrong"

Posted by Patent Hawk at 11:42 AM | The Patent System

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.

Continue reading "Drowning"

Posted by Patent Hawk at 5:44 AM | The Patent System | Comments (6)

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.

Continue reading "Up the Sleeve"

Posted by Patent Hawk at 12:15 AM | Prior Art

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.

Continue reading "Tripping"

Posted by Patent Hawk at 11:30 AM | § 112

Pen Pal

For all the pontificating he is doing, hyperactive CAFC Chief Judge Michel might want to consider blogging.

Continue reading "Pen Pal"

Posted by Patent Hawk at 12:07 AM | The Patent System

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.

Continue reading "A Blow Against the Empire"

Posted by Patent Hawk at 12:38 PM | The Patent Office

June 15, 2007

Problem Solved

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.

Continue reading "Problem Solved"

Posted by Patent Hawk at 10:17 AM | Prosecution | Comments (4)

Chemical Obviousness

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."

Continue reading "Chemical Obviousness"

Posted by Patent Hawk at 12:18 AM | Prior Art

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.

Continue reading "Dissonance"

Posted by Patent Hawk at 10:53 AM | The Patent Office

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.

Continue reading "Undertaking"

Posted by Patent Hawk at 4:15 PM | Damages

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.

Continue reading "CAFC Chief Judge Plays Patent Examiner"

Posted by Patent Hawk at 3:40 PM | Prosecution

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.

Continue reading "Standing"

Posted by Patent Hawk at 11:52 PM | Litigation

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.

Continue reading "Undead"

Posted by Patent Hawk at 5:25 PM | The Patent System

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.

Continue reading "A Bug's Life"

Posted by Patent Hawk at 2:43 PM | Patents In Business

June 10, 2007

Under Secretary

Hal Wegner writes of the qualifications of recent USPTO management, elevation of title belying comparative depth of experience.

Continue reading "Under Secretary"

Posted by Patent Hawk at 10:45 AM | The Patent Office

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.

Continue reading "WSJ on Patents"

Posted by Patent Hawk at 12:06 AM | The Patent System

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.

Continue reading "ITC Hangs Up Qualcomm"

Posted by Patent Hawk at 1:31 AM | Injunction

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.

Continue reading "Patents at Work"

Posted by Patent Hawk at 11:38 PM | Patents In Business

Turkey Vulture

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.

Continue reading "Turkey Vulture"

Posted by Patent Hawk at 1:10 PM | The Patent Office

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.

Continue reading "Not Its Time"

Posted by Patent Hawk at 8:22 PM | The Patent System

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."

Continue reading "Do Some Work For Us"

Posted by Patent Hawk at 10:51 AM | The Patent Office | Comments (2)

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."

Continue reading "Concealment"

Posted by Patent Hawk at 4:10 PM | Litigation

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.

Continue reading "Another Bite with a Fresh Rabbit"

Posted by Patent Hawk at 1:19 PM | The Patent Office

Sweet Dreams

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.

Continue reading "Sweet Dreams"

Posted by Patent Hawk at 12:26 PM | Patents In Business