July 31, 2007
For the Hoopleheads
The number of patent cases and the size of damages and settlements in the United States in just the past few years have been staggering. Without desperately needed reform, our patent system will continue to be a burden on our courts and our nation's top employers — putting at risk innovative technologies, our nation's economic growth and good-paying jobs.
Even the U.S. Supreme Court has recognized these problems. The justices themselves widely criticized the current system. Chief Justice John Roberts called it "worse than meaningless."
With so much at stake, Congress should stand on the side of innovation and working families and pass the Patent Reform Act.
- Mr. Ted Clark, senior Vice President at Hewlett-Packard, in the Houston Chronicle
Injunction & Reexamination
Hal Wegner reports: "More than fourteen months after the Supreme Court decision in eBay Inc. v. MercExchange, the eBay case continues in Norfolk. Just this past Friday, the court denied a permanent injunction while offering interesting observations on the interplay between patent reexamination and litigation."
The KSR Trend
KSR is taking a mounting toll on patents and patent applications. To soon for hard statistics, but the trend is palpable. The Wall Street Journal today notes the killing fields that courts are becoming in patent litigations. The patent office has become an obviousness connoisseur, savoring the many ways of snuffing applications like wind-blown candles, based on KSR-provided attack angles.
July 30, 2007
The USPTO today published an extensive revision of the rules governing ex parte patent appeals, where an applicant's patent has been invalidated by the new, "leave no patent alive" obviousness regime imposed by the Supreme Court's KSR decision. Given that the majority of potential pre-KSR high-value patents may be no longer be enforceable, the patent office is expecting a crush from those trying to hold on to what they no longer have got.
July 28, 2007
KSR Strikes IBM
IBM appealed one of its patent applications for displaying cached web pages (2003/0101234). The appeals board (BPAI) decision, handed down yesterday, is illustrative of the power of hindsight in combining prior art references, and blithely filling uncovered gaps, as allowed by KSR.
Some patent infotainment in today's Wall Street Journal letter page, as David Vandagriff of Helius gets his licks in on Bruce Sewell, Intel patent clown, for being such a corporate slut. On the same page, James McKeown writes like he has a head on his shoulders, until he suggests "eliminating the District Court in the Eastern District of Texas, which has made a booming cottage industry out of encouraging patent infringement litigation."
July 27, 2007
The waves unleashed by recent Supreme Court decisions have swelled a sea change of judicial attitude that continue to erode patent protection, furthered today by appeals court carelessness. Integra Lifesciences sued Merck, Scripps, and researcher Dr. David Cheresh for infringing five patents. The defendants invoked 35 U.S.C. §271(e)(1), which exempts genetic experiments for new drug research from patent infringement. At issue was the breadth of the exemption. Back to the CAFC after a SCOTUS decision broadening the exemption, the CAFC inadvertently includes research tools, a ruling which could, according to the dissent, "shift all control of research and the patented tools that facilitate research to the insular pharmaceutical industry."
July 26, 2007
Scratch & Sniff
Premier International sued Apple in 2005 for infringing 6,763,345 and 6,243,725 with the Apple iPod and iTunes. The patents claim building playlists. Apple is looking to build its own playlist for hearing the off-key hit of inequitable conduct.
Laboring over Patent Reform
The AFL-CIO, taking the manufacturing industries view, writes a letter to the Hill on the Patent Reform Act of 2007, hitting the high points of what's wrong with the bill.
Transocean has a four-patent portfolio that constitutes a working rig. Having drilled GlobalSanteFe (GSF) for infringement a few years back, Transocean now aims its bit at Maersk Contractors.
July 25, 2007
USPTO Rule Changes
The patent office is proceeding towards the details of implementing its rule changes for limiting continuations and number of claims examined. An internal (intra-agency) email follows.
July 24, 2007
Cybersettle sued the National Arbitration Forum (NAF) for infringing its online dispute resolution patent: 6,330,551. District court claim construction & summary judgment cross-motions put the infringement hurt on NAF. The appeals court had a different take on the claims: the difference between what's possible and what's done.
Dealing with KSR
The talk at the recent annual convention of the National Association of Patent Practitioners (NAPP) was about arguing past prosecution obviousness rejections in light of KSR.
July 23, 2007
Toprol-XL® is a drug used to treat heart-related malfunctions. Astra owns two patents for its active ingredient, metoprolol succinate; patents which Astra asserted against generic drug makers seeking FDA approval; patents with a peculiar pedigree. The district court found Astra's metoprolol patents invalid owing to double patenting, and inequitable conduct, owing to the peculiar pedigree. Astra appealed the invalidity finding of one asserted patent, leaving the other dead without appeal.
Silk Purse from a Sow's Ear
The Patent Reform Act of 2007 is hopefully too wretched and controversial to become law, but it has laid out a trough for the swine known collectively as the Congress of the United States. As one onlooker observed, "The controversy certainly is a good income stream for the politicians." Invitations are flowing to interested parties to attend breakfasts and receptions at $1,000 on up, for the chance to hobnob for a moment with an esteemed Senator or Congressperson, mouthing patent-reform-this or patent-reform-that to a pair of deaf ears attached to a fattening piggy bank.
Manufacturers in foreign countries, particularly export engines China and India, are savoring the prospect of the Patent Reform Act of 2007 becoming law, particularly provision for cheap post-grant assault, as it entangles patent holders with invalidity challenges at no risk and at lower cost than litigation. The Economic Times gives Indian drug companies a heads-up that "patent reform is beneficial to Indian companies, as they are usually not patent holders, and are often excluded from the US market by the threat from weak patents."
July 22, 2007
Benitec Australia sued competitor Nucleonics for infringing 6,573,099, related to RNA-based disease therapy using gene silencing. Nucleonics moved to dismiss, as there was no present possibility of infringement: "Simply stated, Benitec has shot before there is even a target." The district court denied the motion. Then the landscape shifted, with discovery that '099 might be invalid because of unnamed inventors. Benitec sought dismissal of the case, with Nucleonics wanting it to go forward on declaratory judgment counterclaim, aiming to lay '099 down to the big sleep. The district court dismissed the case, and Nucleonics appealed. (CAFC 06-1122)
July 20, 2007
Is the House getting it right on patent reform?
Broadcom kept the pressure on Qualcomm with the looming ITC injunction of Qualcomm chips for infringing Broadcom patents. Qualcomm and it customers: phone makers and service providers, tried to block the ITC ban by appealing to the CAFC. The ITC and Broadcom countered that CAFC intervention was untimely given that the 60-day presidential review period, by which the President may veto the injunction, is still underway. The CAFC concurred. (CAFC 07-1392)
July 19, 2007
Broadcom has Qualcomm under pressure over an ITC ban on importing Qualcomm wireless device chips. Qualcomm customers, including Verizon Wireless, had vigorously lobbied to avert the import ban. Now we learn of an unexpected settlement between Verizon and Broadcom, with Verizon paying the $6 per unit royalty that Qualcomm turned down. The deal appears a coup for Broadcom, but it may provide an opening for Qualcomm.
July 18, 2007
Chilling Invention at the PTO
A trilogy of recent precedential decisions by the USPTO Board of Appeals and Interferences (BPAI) demonstrates the extent to the which the Supreme Court KSR obviousness decision raised the bar to patentability, providing patent examiners ready harpoons to puncture claimed inventions with aplomb.
Moving towards passage, the full House Judiciary Committee unanimously tossed the Patent Reform Act of 2007 to the House floor earlier today, while the Senate debates the legislation today, with upshot tomorrow.
A number of computer technology companies, ongoing targets for infringement suits, coalesced into lobbying groups, including the Coalition for Patent Fairness and Business Software Alliance; hankering to elude patent enforcement, they are delighted with the bill's progress. "Today's successful mark-up demonstrates Congress’ seriousness in dealing with the overwhelming need for balanced and comprehensive reform," tooted Jonathan Yarowsky, counsel to the Coalition for Patent Fairness.
Other companies that rely upon patents for their business model, including cell phone innovation gnome Qualcomm, and major pharmaceutical & biotechnology companies, are askance. Kevin Kearns, president of the U.S. Business and Industry Council, ostensibly on behalf of the manufacturing sector and small companies, tore into the haste of passing the Act, calling it "a rush project... that could cripple American innovation."
July 17, 2007
Self-taught, life-long diamond maven Joseph Mardkha got the idea to cut diamonds like colored gemstones. "While diamonds are typically cut to maximize their brilliance and sparkle, gemstones such as rubies and emeralds are cut to emphasize their depth and clarity." Mardkha had his brother-in-law, Yoram Finkelstein, cut diamonds based on the concepts he had. Mardkha went on to get patents (7,146,827 & D467,833) and make a small fortune. Finkelstein wanted his cut.
July 16, 2007
William Gerold consulted for AutoMed, then Microfil, designing automated drug dispensers. AutoMed went after Gerold and Microfil for infringing its patents (6,449,927 & 6,742,671). Summary judgment of non-infringement was appealed over claim construction (CAFC 06-1620). The appeals court, in yet another 2-1 decision, ignores the claim language itself, attendant specification indefiniteness, and lack of enablement, to arbitrarily determine facts of technology as a matter of law; thus differing from the straightforward district court construction and appeals court dissent, which read the claims as they were drafted.
Eastern District of Texas Judge T. John Ward has made it clear to Toshiba that it was a mistake to mess with Texas patent court. On the defense from Juniper Networks for infringing 5,418,924, claiming a memory controller with programmable timing, Toshiba got caught committing "discovery abuse": lying about source code it had, and in contempt for disobeying a court order to produce it. Ward imposed harsh sanctions. (Eastern District of Texas case 2:05-cv-00479-TJW-CE)
July 15, 2007
In Over His Head
"Today, over all, patents don’t work." Today's New York Times patent dribble is by word jockey Michael Fitzgerald, who knows nothing about patents, but helps pay the mortgage by penning an article reporting research by other guys who know nothing about patents. The fly in the ointment of the article is confusing statistics with reality: there is no "over all" to patents "working".
July 13, 2007
The Patent Prospector was forwarded a perspective on restricting venue for patent litigation in yesterday's markup of the Senate version of the Patent Destruction Bill of 2007.
[T]here are powerful forces, especially in the electronics industry, that would dramatically change, if not destroy, the patent system that has served us so well for over 200 years. [Proposed in the legislation is] a new review process, allowing for challenges to patents that have already been granted. The leverage this would give to large companies with an array of lawyers is evident. Small inventors will be harassed and bogged down until they eventually surrender to deep-pocketed opponents.
[T]he legislation being foisted upon us... has nothing to do with fixing the system. It has everything to do with weakening the rights of the small inventor, using problems at the Patent Office as a screen to mask this power play.
Why is this happening? The electronics industry does not want to pay royalties. That's really the bottom line.
July 12, 2007
Bruce Sewell, senior VP and general counsel of Intel, assumes the missionary position in the Wall Street Journal: "The number of questionable, loosely defined patents is rising." Try that on anyone knowing the examination rigor now applied at the USPTO, and see the response: "what planet did you drop in from?" Is Sewell a shill, knowingly peddling patent propaganda, or just ignorant?
Visudyne is a light-activated drug treatment for a particular form of age-related vision loss, specifically, "wet" macular degeneration. Visudyne's development began with a serendipitous discovery, and ended in acrimony between the those involved in development of the treatment that came to fruition over a decade after initiation. A blockbuster with cumulative sales over $2.3 billion from product launch in 2000 through March 2007, there was plenty of money to go around. Tuesday, Judge William Young of Massachusetts district court adopted a patient jury's verdict in sorting out a very complex story to set a reasonable royalty, and, as a kicker, scolding the litigants for their pettiness. (MA 10783-WGY)
July 11, 2007
Daiichi Sankyo collared Apotex for infringing 5,401,741, claiming ear infection treatment. Apotex appealed (CAFC 06-1564), claiming invalidity by obviousness. In a CAFC business-as-usual non-precedential decision, '741 takes it in the ear, finding "the ordinary skill in the art" to be, well, the inventors.
July 10, 2007
The Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) concluded review of proposed USTPO rules related to examination procedures, blithely approving them as "consistent with change." OMB views the rule changes as economically insignificant. No one else does.
July 9, 2007
Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress. - KSR
All other users having taken licenses, PharmaStem sued the remainder six companies for infringing two patents related to treatment for compromised blood and immune systems. In yet another 2-1 split decision, a CAFC majority finds obviousness where none had been found before (CAFC 05-1490) -
The inventors merely used routine research methods to prove what was already believed to be the case. Scientific confirmation of what was already believed to be true may be a valuable contribution, but it does not give rise to a patentable invention.
- while the dissent finds the hindsight demon unleashed by KSR a vampire, sucking the lifeblood from a deserved patent.
The court's approach reflects misperception of the scientific process as well as the patent purpose. Scientific methodology usually starts with a hypothesis based on what is already known; the record shows that several scientists mentioned the idea of rebuilding destroyed blood cells. However, none achieved this long-sought goal, and the record shows the extreme skepticism concerning even the possibility of this achievement. Nonetheless, my colleagues deny the value of this long-sought result. Instead, my colleagues simply reweigh selectively extracted evidence, ignore the actual peer response and acclaim at the time these inventions were made, reject the testimony and admissions of the defendants, and use present knowledge of the inventors' success to find that it was obvious all along.
July 7, 2007
This Week in Patents
A roundup of this week's top patent news: battles won and lost, as well as settlements and ghosts given up. The top stories involved a pair of 2-1 CAFC rulings, and waiting with bated breath whether OMB will stop the USPTO from capricious rule making.
July 5, 2007
The Festo case, stumbling through the courts for almost twenty years, has already written a bible on prosecution estoppel under the doctrine of equivalents. The case has been before the Supreme Court twice, CAFC en banc twice, and now makes its third appearance before the CAFC.
Today a new chapter is written, on whether an equivalent is foreseeable, and thus subject to surrender from prosecution estoppel. In a nutshell, what was within the prior art was foreseeable, but the ruling puts devils in the details, and sets the stage for a third Supreme Court appeal.
It may come as no surprise that the CAFC ruling went 2-1, with a dissent that scolds the majority for ignoring precedent, self-contradiction, fostering hindsight reasoning, and being downright illogical. (CAFC 05-1492)
July 4, 2007
Lame General Purpose
In asserting 5,913,685, going to computer-assisted CPR, inventor and pro se legal one-man band Donald Hutchins stupidly tried to stretch the claimed "general purpose computer system" to be encompassed within a microprocessor; stupid because of prosecution estoppel that went to the heart of claim construction: Hutchins had put the term in to overcome prior art using dedicated microprocessors. Neither the district or appeals courts bought Hutchins' jive. (CAFC 06-1539) [Depiction of Hutchins (238) after the verdict, consoled (242) by his cartoon wife (236).]
4,914,436, owned by Honeywell, claims a system for warning pilots of flight conditions. Asserted against Universal Avionics, the district court judge adopted Honeywell's claim construction, and the trial that followed went the same heading. Universal appealed; in a 2-1 affirming decision, the CAFC befuddles, encouraging participants to treat patent litigation as a crap shoot. (CAFC 06-1046)
The dissent is more compelling than the majority opinion.
It is the responsibility of those who seek the benefits of the patent system to draft claims that are clear and understandable. When courts fail to enforce that responsibility in a meaningful way they inevitably contribute an additional element of indeterminacy to the system.
Strong, balanced patents are an American innovation
"Abusive patent litigation and low patent quality are stifling innovation. One questionable patent can restrict innovation and competition. Why innovate or take the entrepreneurial risk of making products if it just increases the risk of costly litigation?"
July 3, 2007
After the U.S. patent office turned a deaf ear to relentless criticism of its proposed rule changes, OMB became the last resort to stop the PTO from limiting continuations and lessening examination quality. OIRA, the regulatory branch, has been the focus to date. As a last resort of the last resort, the budget branch is now assailed to have some sense.
July 2, 2007
The U.S. International Trade Commission (ITC) meditated, awakening anew, bathed in the shimmer of KSR, deciding to review an administrative judge's decision that two dozen companies infringed Seiko Epson ink cartridge patents. The kinder, gentler ITC was in with the Zen of reflection on claim construction, infringement, and invalidity by obviousness, where the light-headedness of KSR hindsight makes so much obvious that otherwise wouldn't be. Oh yes, the ITC has a new mantra: "If the Commission contemplates some form of remedy, it must consider the effects of that remedy upon the public interest." [ITC notice]
July 1, 2007
An ITC injunction looms before Qualcomm, yet it won't nod to a Broadcom offer of $6 per cell phone licensing fee for an all-inclusive license to Broadcom patents, or, reportedly, to a royalty-free "exhaustive" cross-license.