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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
Continue reading "For the Hoopleheads"
Posted by Patent Hawk at 4:28 PM | The Patent System | Comments (3)
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."
Continue reading "Injunction & Reexamination"
Posted by Patent Hawk at 2:10 AM | Injunction
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.
Continue reading "The KSR Trend"
Posted by Patent Hawk at 1:26 AM | Litigation
July 30, 2007
Appeal Boarding
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.
Continue reading "Appeal Boarding"
Posted by Patent Hawk at 4:16 PM | The Patent Office | Comments (1)
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.
Continue reading "KSR Strikes IBM"
Posted by Patent Hawk at 4:14 PM | Prosecution | Comments (1)
Patent Deform
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."
Continue reading "Patent Deform"
Posted by Patent Hawk at 1:37 AM | The Patent System
July 27, 2007
Patent-Free Research
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."
Continue reading "Patent-Free Research"
Posted by Patent Hawk at 9:21 PM | Case Law | Comments (3)
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.
Continue reading "Scratch & Sniff"
Posted by Patent Hawk at 9:23 PM | 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.
Continue reading "Laboring over Patent Reform"
Posted by Patent Hawk at 8:12 AM | The Patent System
Patents Ahoy
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.
Continue reading "Patents Ahoy"
Posted by Patent Hawk at 1:00 AM | Litigation | Comments (1)
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.
Continue reading "USPTO Rule Changes"
Posted by Patent Hawk at 12:18 PM | The Patent Office
July 24, 2007
Process Capability
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.
Continue reading "Process Capability"
Posted by Patent Hawk at 10:02 PM | Claim Construction
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.
Continue reading "Dealing with KSR"
Posted by Patent Hawk at 12:39 PM | Prosecution
July 23, 2007
Heart Attack
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.
Continue reading "Heart Attack"
Posted by Patent Hawk at 9:11 PM | Claim Construction
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.
Continue reading "Silk Purse from a Sow's Ear"
Posted by Patent Hawk at 2:44 PM | The Patent System
Foreign Glee
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."
Posted by Patent Hawk at 2:09 PM | The Patent System
July 22, 2007
Controversy Controversy
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)
Continue reading "Controversy Controversy"
Posted by Patent Hawk at 10:42 PM | Declaratory Judgment
July 20, 2007
Is the House getting it right on patent reform?
Buchalter Nemer attorney
Richard Ormond
surveys the House version of the Patent Reform Act of 2007, in an article
published today in
ComputerWorld, reprinted here with permission.
Continue reading "Is the House getting it right on patent reform?"
Posted by Patent Hawk at 7:24 PM | The Patent System | Comments (1)
Bad Timing
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)
Posted by Patent Hawk at 12:43 PM | Litigation
July 19, 2007
Chipper
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.
Posted by Patent Hawk at 3:05 PM | Patents In Business
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.
Continue reading "Chilling Invention at the PTO"
Posted by Patent Hawk at 10:45 PM | Prosecution | Comments (1)
Momentum
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."
Posted by Patent Hawk at 2:26 PM | The Patent System
July 17, 2007
Cut Out
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.
Posted by Patent Hawk at 4:51 PM | Patents In Business
July 16, 2007
Controller(s)
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.
Continue reading "Controller(s)"
Posted by Patent Hawk at 9:34 PM | Claim Construction
Riding Herd
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)
Continue reading "Riding Herd"
Posted by Patent Hawk at 5:07 PM | Litigation
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".
Continue reading "In Over His Head"
Posted by Patent Hawk at 12:09 AM | The Patent System | Comments (4)
July 13, 2007
Sphinctering Venue
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.
Continue reading "Sphinctering Venue"
Posted by Patent Hawk at 7:42 PM | The Patent System
Apocalypse Now
In
today's Washington Times, Republican Rep.
Dana Rohrabacher fires both barrels:
[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.
Posted by Patent Hawk at 7:25 PM | The Patent System
July 12, 2007
Patent Nonsense
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?
Continue reading "Patent Nonsense"
Posted by Patent Hawk at 12:03 PM | The Patent System
Teardrop
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)
Posted by Patent Hawk at 1:29 AM | Damages
July 11, 2007
Earshot
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.
Posted by Patent Hawk at 12:04 PM | Prior Art
July 10, 2007
Mission Accomplished
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.
Continue reading "Mission Accomplished"
Posted by Patent Hawk at 11:36 AM | The Patent Office
July 9, 2007
Obviousness Vampire
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.
Continue reading "Obviousness Vampire"
Posted by Patent Hawk at 7:35 PM | Prior Art
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.
Continue reading "This Week in Patents"
Posted by Patent Hawk at 3:24 PM | Litigation | Comments (3)
July 5, 2007
Foreseeability
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)
Continue reading "Foreseeability"
Posted by Patent Hawk at 2:37 PM | Claim Construction
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).]
Continue reading "Lame General Purpose"
Posted by Patent Hawk at 2:48 PM | Claim Construction
Heading
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.
Posted by Patent Hawk at 1:50 PM | Claim Construction
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?"
Continue reading "Strong, balanced patents are an American innovation"
Posted by Patent Hawk at 2:25 AM | The Patent System
July 3, 2007
Another Tack
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.
Continue reading "Another Tack"
Posted by Patent Hawk at 12:16 PM | The Patent Office
July 2, 2007
Introspection
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]
Continue reading "Introspection"
Posted by Patent Hawk at 5:55 PM | Litigation
July 1, 2007
Hanging Tough
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.
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