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August 31, 2007
Semi-Officially Toast
The
Patent Reform Act of 2007 is all but defunct. Yesterday, leading House
Republicans
wrote Nancy Pelosi, House Majority Leader, and solicitously requested to
knock it off. It's all over but the lobbying.
Continue reading "Semi-Officially Toast"
Posted by Patent Hawk at 2:00 PM | The Patent System
An End to Denial
The
Eolas patent infringement win over Microsoft, for infringing
5,838,906, garnered
a $520 million damage award, and became a cause célebre for those howling that the patent system had run amok. In alchemic
transformation, amok turned into bucks.
Continue reading "An End to Denial"
Posted by Patent Hawk at 1:31 PM | Litigation
August 29, 2007
Rebuffed
Egyptian
Goddess (EGI) sued Swisa for infringing design patent
467,389, covering an ornamental nail buffer. The district court found
Swisa's product lacking the point of novelty in summary judgment. Egyptian
Goddess futilely appealed as a CAFC panel constructs a controversial
new test for design patent novelty.
Posted by Patent Hawk at 9:46 PM | Design Patents
Snakebit
The
USPTO has become venomously anti-patent. John Sullivan and Findlay Russell
discovered a rattlesnake antivenom. The patent office appeals board turned a
deaf ear to declarations of novelty. On appeal in court, the CAFC struck back.
Posted by Patent Hawk at 11:02 AM | Prosecution
August 28, 2007
Email Interpretation
On
Monday, Polaris IP pulled its lever on the patent slot machine, suing AOL,
Google, Yahoo!, A9, Borders, Amazon, and others in the Eastern District of Texas
for infringing
6,411,947, which claims automated email message classification using a
combination of a case base knowledge engine and rule base.
Continue reading "Email Interpretation"
Posted by Patent Hawk at 10:20 PM | Litigation | Comments (2)
Patent Remedy
Ronald
Cass rails in the
Wall Street Journal against
Thailand's patent grab, as if the military junta there gives a coconut.
Despite efforts of health activists to portray the world community as accepting - even endorsing - Thailand's conduct, there is growing appreciation that trampling patents to allow a middle-income nation to cut its spending on drugs seriously threatens the world's system of protections for innovation.
Posted by Patent Hawk at 4:25 PM | International
August 27, 2007
Engineering Failure
In
a letter to Sen. Harry Reid, Senate Majority Leader:
IEEE-USA, which represents the interests of more than 215,000 engineers, scientists and allied professionals in the U.S., opposes the Patent Reform Act of 2007 (S. 1145). We believe that much of the legislation is a disincentive to inventiveness, and stifles new businesses and job growth by threatening the financial rewards available to innovators in U.S. industry. Passage of the current patent reform bill language would only serve to relax the very laws designed to protect American innovators and prevent infringement of their ideas.
Continue reading "Engineering Failure"
Posted by Patent Hawk at 3:34 PM | The Patent System | Comments (1)
Derail?
The bipartisan
money-grubbing-from-IT-corporate-lobbyists legislation commonly known as the Patent
Reform Act of 2007 is "hitting resistance," according to the
Wall Street Journal, "because of concerns the U.S. might be exposed to
greater foreign competition." It seems that some members of Congress have been
reading The Patent Prospector, and
more ought to.
Posted by Patent Hawk at 12:00 AM | The Patent System | Comments (2)
August 26, 2007
Pulling Teeth
Ormco asserted
four orthodontic software and appliance patents in the same family against Align Technology
(5,447,432;
5,683,243;
6,244,861 and
6,616,444). Align counterclaimed with
6,554,611 and
6,398,548. All asserted claims by both parties were found
unenforceable. Ormco and Align appealed.
Continue reading "Pulling Teeth"
Posted by Patent Hawk at 8:47 PM | Claim Construction
August 25, 2007
Clear As Mud
Courtenay
Brinckerhoff of Foley & Lardner:
"The USPTO believes that the new rules [limiting examination] will improve the
patent examination process and relieve the overwhelming backlog of pending
patent applications, but may have underestimated the substantive impact the
rules will have on patent Applicants. While the USPTO promotes the rules as
promoting “certainty and clarity” in the examination process, the rules
themselves and the effects of their interrelationships are clear as mud."
Continue reading "Clear As Mud"
Posted by Patent Hawk at 11:24 AM | Prosecution
August 24, 2007
Inventorship by Jury
Frank
Shum is an optical engineer. In the late 1990s, Shum worked with Jean-Marc
Verdiell. The relationship soured. Shum alleged that Verdiell
fraudulently misappropriated technology developed by Shum. When Intel
acquired Verdiell's company, and its patents, for $409 million in stock, Shum
sued.
Continue reading "Inventorship by Jury"
Posted by Patent Hawk at 9:39 PM | Case Law
Bifurcate the Patent System?
Patent
Hawk and I both believe in the value of the patent system for the United States.
More specifically, I don't think it absurd to suggest that the phenomenal
industrial growth we've seen in the United States since the 19th century has
been due in part to the incentives created by the patent system. Where Patent
Hawk and I may disagree, however, is on the question of whether uniformly
stronger patents are good for our economy. In particular, I believe that the
recent Supreme Court cases and PTO rulemaking cutting back at the scope of
patent protection may be beneficial for some high-growth markets in our economy.
Continue reading "Bifurcate the Patent System?"
Posted by Michael Martin at 10:08 AM | The Patent System | Comments (5)
August 23, 2007
No Problemo
Mark
Lemley, professor at Stanford Law School, "widely recognized as a preeminent
scholar of intellectual property law," toots of the new rules for examination
limits: "The idea that this would be any sort of significant restriction on
patent owners is ludicrous to me. It will affect 10 applications a year, maybe
50, out of 450,000."
Continue reading "No Problemo"
Posted by Patent Hawk at 12:57 PM | Prosecution | Comments (12)
As Nutty As Squirrel Poo
Having
attended the
USPTO webinar on the new rules limiting examination, said limits applying
both to the number of continuations/divisionals/RCEs for a patent family, and
claims examined within each patent family, the interplay intricacy aimed at
confounding prosecutors and thereby hobbling invention by said rules leads
inexorably to a singular conclusion: my head hurts.
Posted by Patent Hawk at 12:02 PM | The Patent Office
Tilt
Instantly
taking umbrage at the USPTO's new Byzantine rules for limiting examination,
uppity Greece-born inventor
Dr. Triantafyllos Tafas filed suit in the home court of the PTO, the Eastern
District of Virginia, against the agency and its head honcho, Jon Dudas.
According to Tafas, the new rules violate the Constitution, the Patent Act of
1952, and, in the run-up to promulgation, the rule-making procedures of the
Administrative Procedure Act (APA).
Posted by Patent Hawk at 11:37 AM | The Patent Office
August 22, 2007
Waiving Under Willfulness
Seagate
appeals an order to disclose what would ordinarily be privileged attorney-client
communications between it and trial counsel. The springboard for waiving the
privilege by the district court is a finding of willful patent infringement. The
issue before the appeals court is proper scope of discovery when relying upon
advice of counsel, and the advice sours. But the CAFC goes far beyond that: in a
unanimous en banc reversal of its own precedent of waiving privilege, the
appeals court gratuitously furthers the recent judicial trend in eviscerating
patent enforcement, redefining willful infringement without provocation, an
issue orthogonal to that which it put before itself.
Continue reading "Waiving Under Willfulness"
Posted by Patent Hawk at 1:48 PM | Case Law
Reduction to Priority
The Patent Board of Appeals and Interferences (BPAI) refused to acknowledge
an Australian patent for priority date, even though the PCT filing was correct.
The error by the BPAI was misplaced focus on conception, not reduction
to practice.
Continue reading "Reduction to Priority"
Posted by Patent Hawk at 12:13 PM | Prosecution
Broadest Reasonable Interpretation
Trans
Texas futilely appealed BPAI reexamination rulings finding investment management
business method patents
5,832,461 and
6,052,673 obvious under
35 U.S.C. § 103(a).
Continue reading "Broadest Reasonable Interpretation"
Posted by Patent Hawk at 11:52 AM | Prosecution
August 21, 2007
Promoting the Progress of Science
United
States Constitution, Article 1, Section 8, on "Powers of Congress": "To promote
the Progress of Science and useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to their respective Writings and
Discoveries"
Today, the Federal Register announces a significant step in the opposite direction: limiting inventors the exclusive right to their discoveries. At least the USPTO feels it is conveniencing itself. After all, what could be more important than a government agency making life easy for itself by limiting its services (fully paid services, no less)?!
Posted by Patent Hawk at 10:59 AM | Prosecution
August 20, 2007
Net Gain
David
Vandagriff of Helius figures that the
major players in the push for "patent reform" realize a net gain if patent
enforcement is gutted: "None of the major backers of the current patent reform
legislation have any real stake in improving the patent system. Microsoft, Intel
and Cisco don't owe any of their success to the patent system. Each of these
companies grew large without relying on patents to do so. While they may
currently have patent portfolios, these companies have created and maintained
those portfolios for defensive purposes."
Posted by Patent Hawk at 4:25 PM | The Patent System | Comments (1)
New PTO Rules Webcast
The
U.S. Patent and Trademark Office (USPTO) will hold a special webcast on
Thursday, August 23, 2007, at 1:00 p.m. Eastern/10:00 a.m. Pacific on new claims
and continuations rules that will allow the agency to continue to make the
patent examination process more effective and efficient by encouraging
applicants to use greater clarity and precision in describing the scope of their
inventions. The new rules will be published in the Federal Register August 21,
available at www.uspto.gov after 12:00 PM on August 21, 2007 and will be
effective on November 1, 2007.
Continue reading "New PTO Rules Webcast"
Posted by Patent Hawk at 2:46 PM | Prosecution | Comments (2)
To Be Continued
"
I wanted to share the good news with you that the final rules on claims and
continuations are expected to be published in the Federal
Register tomorrow (Tuesday, August 21, 2007). These rules are part
of USPTO's overarching goal to improve patent quality and the effectiveness of
the patent examination process." - John Doll
Continue reading "To Be Continued"
Posted by Patent Hawk at 11:34 AM | Prosecution | Comments (3)
August 19, 2007
Patent bill jeopardizes life sciences innovation
Sidney
Taurel of Eli Lilly writes in the
Indianapolis Star: "The Patent Reform Act of 2007 would greatly limit the
damages many inventors could receive when their patents are violated, and create
a new administrative process for attacking patents via the U.S. Patent and
Trademark Office - without court protection."
Continue reading "Patent bill jeopardizes life sciences innovation"
Posted by Patent Hawk at 11:26 PM | The Patent System | Comments (2)
August 17, 2007
Worldwide Patent Picture
The
World Intellectual Property Organization (WIPO) has released its 2007 edition of
worldwide patent activity, with built-in pendency: the report covers 2005 and
earlier. The upshot - "Trends in patent activity are a reflection of the
transition currently occurring in worldwide industrial activity. Very high
growth rates in the use of the patent system can be observed in North East Asian
countries, particularly the Republic of Korea and China."
Continue reading "Worldwide Patent Picture"
Posted by Patent Hawk at 9:23 PM | The Patent System
Discovery
Every
Penny Counts (EPC) is suing Bank of America (BOA) in Florida for infringing
6,112,191, which claims automated account transfer of "excess funds" with a
retail transaction. EPC wanted hundreds of thousands of documents as part of
discovery. BOA agreed to roll them out gradually, but then stalled. Judge Sheri
Polster Chappell told BOA to bust a move, giving it until the end of the year to
get it done. BOA ought to pay attention; and their attorneys, even closer
attention; take Qualcomm as a very bad example.
Posted by Patent Hawk at 4:31 PM | Litigation
Entrepreneurship
The Seattle PI newspaper ran an article by Susan Schreter on what it takes for software companies to obtain venture capital funding, with no mention of patents. A reader asked about the omission. The turnaround: "Angel investors and venture funds are unapologetic in their quest to back entrepreneurs who have a "sustainable and unfair advantage" in the marketplace." With USPTO examination rigor post-KSR, it's even harder to get a software patent, which makes one even more valuable, as a granted patent is much less likely to be found obvious than before, and thus more likely to be enforceable.
Posted by Patent Hawk at 4:12 PM | Patents In Business | Comments (2)
August 16, 2007
e-Office Action
The
patent office is running a pilot program of sending electronic office actions,
using Private PAIR, with notification by email, replacing the paper version. The
USPTO is letting a limited number of new participants into the program beginning
August 31. This initiative looks a winner in terms of convenience for all
involved, and is likely to be an option for all prosecutors in the not too
distant future, when the pilot successfully concludes.
Continue reading "e-Office Action"
Posted by Patent Hawk at 6:21 PM | Prosecution
August 14, 2007
Slow on the Draw
"The
value of effort is timeliness." - Lao Tzu
Microsoft got sued for patent infringement for the upteenth time; this time, by Computer Acceleration Corporation (CAC), a unit of Acacia. The horse CAC rode was 5,933,630, carrying cargo that reduces program launch time. Microsoft aimed to hog-tie the rider, and shoot the horse, but was a tad tardy.
Continue reading "Slow on the Draw"
Posted by Patent Hawk at 11:57 PM | Litigation | Comments (1)
August 13, 2007
Disgraced
In
the wake of public humiliation for sordid corporate behavior during patent
litigation in a court decision
early last week,
and yet another last Friday, Qualcomm general counsel Lou Lupin resigned today.
The aggressiveness that characterized Qualcomm on the legal front, which Lupin
signified, may now be tempered.
Posted by Patent Hawk at 7:17 PM | Patents In Business | Comments (2)
Out of the Loop
Patent
attorney
Michael Teschner (pictured below) had a patent he had a hand in prosecuting
go down to inequitable conduct, on failure to disclose prior art. Teschner fruitlessly appealed to step in and clear his name.
Continue reading "Out of the Loop"
Posted by Patent Hawk at 10:54 AM | Inequitable Conduct
August 12, 2007
Beavering Vonage
In
reporting
its second-quarter earnings Thursday, Vonage let slip that it was well on its
way to non-infringing workarounds to the
Verizon
patents it was found infringing. Subscriber growth has sputtered.
Continue reading "Beavering Vonage"
Posted by Patent Hawk at 2:12 PM | Patents In Business
Sloppy Vonage
Predating
the
Verizon-Vonage spat that has garnered much ink, Sprint sued Vonage in
October 2005 over seven patents related to interfacing a old-style PSTN telephone network with the Internet variety (VOIP). Vonage filed a sloppy
summary judgment motion, which
Kansas district court Judge Lungstrum pitched. Trial starts in September.
Continue reading "Sloppy Vonage"
Posted by Patent Hawk at 2:09 PM | Litigation | Comments (1)
August 10, 2007
Markushed
Eugene
Markush (shown) appealed his rejected chemical claims. In a landmark 1924
decision, the Commissioner of Patents approved the type of claim that would take
the Markush namesake.
Markush claims recite groups of workable alternatives. As such, relative to other claim types, Markush claims are intrinsically complex. Markush claims easily mushroom into a plethora of possible permutations. Hence, Markush claims present a considerable examination challenge: namely, searching prior art for the possible alternatives. To attempt to rein in the inherently unruly, the USPTO is proposing new rules governing Markush claims.
Posted by Patent Hawk at 5:25 PM | Prosecution
This Lawsuit's For You
Unless
you're a Pabst Blue Ribbon lowlife, you've
doubtlessly marveled over the new Budweiser
beer bottles, with shiny printing on both sides of the label. It's enough to
make you guzzle. Why, that label is so chillin' that it's patented; alas, not by
Bud brewer Anheuser-Busch. On
Thursday, a Quebec company uncorked a cool complaint in East Michigan for
infringing
6,852,191.
Continue reading "This Lawsuit's For You"
Posted by Patent Hawk at 12:00 AM | Litigation
August 9, 2007
Red Cross
Johnson
& Johnson (J&J) is suing the American Red Cross (ARC) for trademark
infringement, contending that the Red Cross has broken the law by licensing the
emblem to other businesses, which are using the symbol on their products. [Yes,
this is a patent weblog, but this story is too interesting to be left
untold to Patent Prospector
readers.]
Posted by Patent Hawk at 2:44 PM | | Comments (3)
Complex Data
The
USPTO announces a "Complex Work Units (CWUs) Pilot Program" scheduled to begin
towards the end of the year. The agency seeks volunteer participants to provide
input and feedback. The goal
of the project is to better figure out how to regularize complex figure and
table data, such as used to illustrate chemical structures, mathematical
formulae, and protein crystals.
Continue reading "Complex Data"
Posted by Patent Hawk at 11:13 AM | The Patent Office | Comments (1)
August 8, 2007
On Behalf
The
appeals court settles a three-way squall for inventorship, inadvertently
highlighting the senseless Byzantine complexity of the first-to-invent scheme
that only the United States clings to, the entire rest of the world long
ago having seen the folly of, and gone to the simple first-to-file system. In
this episode, we learn that you can swear your
invention date back to something you didn't invent, but not if it wasn't done
for you.
Posted by Patent Hawk at 12:24 PM | Prosecution | Comments (1)
August 7, 2007
Stiffed
Bad day for Qualcomm.
First, President Bush turned a deaf ear to Qualcomm's plea to overturn an ITC injunction against importing chips infringing Broadcom patents. Now Qualcomm is heading back to the appeals court for a stay, to let it plead some more.
Second, in a separate battlefront, Qualcomm had asserted two video compression patents (5,452,104 & 5,576,767) against Broadcom that covered the H.264 standard, set by the Joint Video Team (JVT). By adopting the standard, Broadcom infringed, Qualcomm snorted; a jury found otherwise. In Southern California Judge Rudi Brewster ruled Monday that Qualcomm engaged in "aggravated litigation abuse" by concealing over 130,000 documents during discovery. Qualcomm lawyers "participated in an organized program of litigation misconduct and concealment throughout" the case, as well as "widespread and undeniable misconduct of Qualcomm." The judge granted attorneys fees to Broadcom. Fooling the standards committee (JVT) in the first place cost Qualcomm its right to enforce the patents, Brewster ruled.
Posted by Patent Hawk at 12:14 PM | Litigation
Unplugged
In
a detailed
43-page decision, Judge
Rudi Brewster in San Diego district court pitched the $1.5 billion damage award
to Alcatel-Lucent from Microsoft for two MP3 audio patents,
5,341,457 and
RE39,080. Judge Brewster
overruled the jury verdict, finding non-infringement in one patent, and a
question of ownership on the other. "The jury's verdict was against the clear
weight of the evidence," Brewster wrote.
Posted by Patent Hawk at 1:41 AM | Litigation
August 5, 2007
USTPO Obviousness Guidelines
Hal
Wegner thinks he snagged an unofficial copy of the summary of the PTO examiner guidelines
for determining obviousness. It may not be the train, but it sure looks to be
where the tracks are being laid. Here it is.
Continue reading "USTPO Obviousness Guidelines"
Posted by Patent Hawk at 10:32 PM | Prosecution | Comments (2)
August 4, 2007
This Pendulum Swing
Once
upon a time, erstwhile inventive companies grew fat, smug, and arrogant. Though
a few created revenue streams from patents, all were constantly pestered with
infringement assertions. Mega-corporations banded together, finding common cause
in pouring money into poisoning the patent well - trying to gut patent
enforcement, make the so-called "sport of kings" an even higher-stakes "spoils
of the mighty."
Continue reading "This Pendulum Swing"
Posted by Patent Hawk at 6:17 PM | The Patent System | Comments (4)
Drama?
Guardian Media unleashed a rash of declaratory judgment suits related to its
patents for parental content control for TV programs; from Sony, Mitsubishi,
JVC, Matsushita, and Thomson. After consolidation, Guardian got the district
court to dismiss for lack of controversy. The appeals court disagreed, finding
all the ingredients for an adjudicatable dispute.
Posted by Patent Hawk at 4:36 PM | Declaratory Judgment
August 1, 2007
Fully Charged
Good
patents carry a charge.
3M sued Sony and
others just this past March for infringing its lithium-ion battery cartridge
patents. 3M shot both barrels: district court and ITC; asking for damages, an
injunction, and attorneys' fees. Sony just settled.
Continue reading "Fully Charged"
Posted by Patent Hawk at 11:15 PM | Patents In Business
Whichever Way It Folds and Holds
Icon
Health & Fitness appealed to the CAFC a BPAI reexamination ruling invalidating
5,676,624, which claimed a folding treadmill that used a gas stabilizing
spring to hold itself in place. No surprises were sprung.
Any need or problem known in the field of endeavor at the time of invention and addressed by the patent can provide a reason for combining the elements in the manner claimed. - KSR
prior art search + 
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