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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.

The CAFC generously granted claim slop to plaintiff Honeywell in Honeywell v. Universal Avionics, to dissenting dismay.

A new chapter was written in the nineteen-year saga of defining prosecution estoppel when applying the doctrine of equivalents in Festo XIII; in this episode, Festo bites dust again as a 2-1 majority figures the accused product was a "foreseeable" variation that should have been explicitly claimed if it was to be covered. A harsh dissent, well reasoned, accused the majority of every possible lapse in jurisprudence.

Pro se plaintiff Donald Hutchins proved the adage that anyone representing themselves in a court of law has a fool for a client by tilting at a windmill of claim enlargement while facing a brick wall of prosecution estoppel. Hutchins had to disclaim during prosecution what he sought to recover during enforcement by doctrine of equivalents. Hutchins thus delineated the difference between a junk patent (not) and junk patent enforcement (most certainly).

OMB continued to be assailed with wailing about the pending rules by the USPTO to limit the number of claims under examination, and limit continuations. Allegedly, besides being Cheney-like in its secretiveness, PTO management didn't study the problem, didn't consider cost/benefit, and didn't mull any alternatives; in its utter lack of professional process, just deciding what it wanted to do, agency management abrogated executive order 12,866 and the Administrative Procedure Act, among other sins of omission. OMB has do something by Monday, July 9, to stop the USPTO. OMB is expected to sit on its thumbs.

The ITC ban on Qualcomm phone chips looms. Qualcomm has been trying to squirm out of it, so far without result. Broadcom offered a licensing deal that Qualcomm balked at. The lack of information about the terms of the deal make its equity difficult to assess. On Tuesday, Broadcom rebutted Qualcomm's plea before the ITC for reconsideration. Qualcomm is as likely as not to have to face the music and dance to a deal with Broadcom to elude an injunction.

The ITC is going to slip into gloves: Georgia-based Tillotson alleging breaches of the 1930 Tarriff Act against a slew of glove importers, including makers from Australia, Indonesia, and China. Allegedly, 22 billion gloves, valued at a quarter-billion dollars, are involved.

Monday, Reebok suddenly dropped its patent suit against Nike. Nike's counterclaim suit continues, but expect a settlement down the road.

Also on Monday, Opti targeted AMD, Atmel, Broadcom, Renesas Technology, Silicon Storage, SMSC, STMicroelectronics, and VIA Tehcnologies for patents claiming peripheral I/O interfacing; another fandango in the Eastern District of Texas. Opti has previously wrangled a settlement from Nvidia for the patents in suit.

A patent spat between plaintiff SanDisk and Memorex took a nasty turn, with SanDisk accusing Memorex of legal Alzheimer's by not producing anything by way of discovery documents. Memorex responded that it didn't have much to show.

DataTreasury's enforcement campaign of its patented check imaging technology rolls on, while defendants Bank of America and Wachovia made a wild stab at arguing indefiniteness. DataTreasury has targeted 56 companies and banks in the case. NCR has already settled with DataTreasury.

O2Micro and Sony settled a long-simmering patent dispute over back-light inverters for LCDs; terms undisclosed. O2Micro still has Microsemi and Rohm on the griddle for infringement. O2Micro has previously scored $2 million from Taiwan Sumida Electronics for inverter controller patents used in laptops.

Batteries.com settled with 3M over lithium ion batteries, stopping sales of infringing products, and reselling only licensed 3M batteries. Financial terms remained confidential.

German patent licensing company Papst Licensing GmbH filed suit against Olympus for patented high-speed interfacing for removable media used in digital cameras. Papst previously raked $6.7 million off its former partner, Minebea, settling a decade-long dispute.

Microsoft sought summary judgment to toss claims from a suit brought by Visto, for email and data synchronization patents. Microsoft thinks it has ace prior art for one patent, and casts an impermissible claim enlargement attack against another patent, as well as tacking on a non-infringement argument. Visto is also targeting Research in Motion (RIM), and has already won an award against Seven Networks for willful infringement. RIM, you may recall, had $612.5 million lifted from its wallet by NTP last year in a patent battle over RIM's Blackberry devices.

Korea-based LG Electronics (LGE) pounded Quanta Computers with another patent suit over DVD drive technology. LG previously field against Quanta and others for its personal computer patents, but lost at district court due to patent exhaustion, only to revive upon appeal

After a dizzying mixture of rulings in a patent battle between plaintiff Semiconductor Energy Laboratory and Chi Mei Optoelectronics, a California court granted a joint motion to pitch the case. The other defendants, Westinghouse Digital Electronics, CTX Technology, and International Display Technology, were also off the hook.

Friskit and RealNetworks tried to disqualify each other's counsel in a streaming media patent dustup. Friskit tried to boot Howrey because it had discussed representing Friskit in the case, while RealNetworks tried to disqualify Foley & Lardner from representing Friskit because Rob Glaser, CEO of RealNetworks, said he had engaged Foley in a pending matter unrelated to the Friskit fracas. In both instances, presiding Northern California judge Schwarzer ruled 'get over it; on with the show.'

Posted by Patent Hawk at July 7, 2007 3:24 PM | Litigation


Dear Gary,
Datatreasury versus the 56 banks, what will the banks be able to do if the Datatreasury patents are reinstated . Will they have to settle or what is their next move?


Posted by: Fred Baum at July 7, 2007 10:26 PM

Without the KSR wildcard, one would think that DataTreasury had a license to print money; that defendants would settle in time. With the KSR wildcard, all bets are off that the patents won't be found obvious via omnificent hindsight.

Posted by: Patent Hawk at July 9, 2007 9:46 PM

Patent Office Validates a DataTreasury Image Exchange Patent.
This sure makes DataTreasury's patents look more valid.


Posted by: Peter Gundermann at July 15, 2007 2:21 AM