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September 27, 2007
Fiction Writers
Reeking
of nasty anti-patent bias, evidence of high-level incompetence at the USPTO
trickles in. Today, the appeals court caught the patent appeals board (BPAI)
equating "flexible" with "rigid."
Continue reading "Fiction Writers"
Posted by Patent Hawk at 1:03 PM | Prosecution | Comments (4)
Comprised of Counterfeit
5,283,422,
owned by CIAS, claims a counterfeit detection system, intended for slot machines
and the like. '422 was asserted against Alliance Gaming. Alliance successfully
got a summary judgment of non-infringement which the appeals court affirmed,
even though the district court's claim construction was a bit off.
The little claim construction gem here is the CAFC chatting about the fabled claim term family: "comprising," and its down-at-the-heel cousin: "consists of."
Continue reading "Comprised of Counterfeit"
Posted by Patent Hawk at 12:26 PM | Claim Construction | Comments (4)
September 26, 2007
Ears Ringing
Vonage,
the best of the VoIP providers, had its bell rung twice for patent infringement
in the past couple of days. Yesterday, a jury found Vonage infringed Sprint
patents; a $70 million tab in the offing. Vonage will, of course, appeal. But,
with history as a guide, that offers little succor, as Vonage lost its appeal
for two of three Verizon patents it infringed, and the third still looms. Being
the best by snitching others' IP is running the company into the ground.
Continue reading "Ears Ringing"
Posted by Patent Hawk at 12:15 PM | Claim Construction | Comments (1)
September 25, 2007
Gutter Mouth
Eran
makes and markets rain gutter covers, covered by
5,557,891. Fired employees set up shop as competitors, named GP Industries.
Eran sent a scary letter to its customers and distributors that GPI's product
would be infringing '891. GPI responded with a declaratory judgment motion to
kill '891 and stop the alleged tortious business interference. Eran responded
with a patent infringement and trade secret theft suit. GPI then successfully
sought a preliminary injunction against Eran further bad-mouthing them. The
appeals court barked "not so fast."
Continue reading "Gutter Mouth"
Posted by Patent Hawk at 4:45 PM | Injunction | Comments (1)
September 24, 2007
No Seizure
Warner
Lambert holds
6,054,482, covering the active ingredient of
Neurontin, which treats epilepsy. Warner
sued generic drug makers to toss their versions off the market. The district
court granted summary judgment of noninfringement. The appeals court said there
were "genuine issues of material fact," so summary judgment was premature. A
little claim construction tiff that Warner had was settled by reading the claim
as anyone with a lick of sense would have. The CAFC decision (06-1572)
is long and boring; that could be why the district court wanted to see the
backside of the damned thing, but it got remanded for more mucking around. The
ruling was inscrutably precedential; the case is stale, having dragged on for
years, and everything about the decision was moldy.
Posted by Patent Hawk at 7:21 PM | Litigation
Without Means
Means claims have been problematic for years;
many prosecutors avoid the means-plus-function claim form altogether, as means claims are
tightly bound to the specification. Courts have often limited doctrine of equivalents application for means claims,
even though DOE is statutorily bona fide. But
sometimes there's an even more fundamental problem. Maurice Mitchell found out
what that was.
Continue reading "Without Means"
Posted by Patent Hawk at 2:39 PM | § 112
ReExam Reverb
KSR
has created a favorable forum: inter partes
reexamination requests, i.e., someone other than the patent holder butting in, were
once shunned for the risk of bullet-proofing a patent, but now are soaring as a low-cost bet to smother patents in the
cradle, before they walk into the courtroom. The recent kill rate is 88%.
Continue reading "ReExam Reverb"
Posted by Patent Hawk at 1:22 AM | Prosecution
September 23, 2007
Blood Money
The American Red Cross (ARC) counterpunched against
Johnson &
Johnson's trademark infringement suit Friday, filing
a motion that J&J's
complaint was legally defective. The ARC crossed J&J by licensing the famous Red
Cross emblem to other health product makers. The ARC seems determined not let
historical facts, nor long-standing comity, act as proscription in its drive for
licensing lucre.
Posted by Patent Hawk at 1:47 AM | Litigation
September 21, 2007
Infringing Parties
Paymentech
sought declaratory judgment of non-infringement after BMC demanded licensing of
5,718,298 &
5,870,456; patents claiming processing debit transactions without using a
personal ID number (PIN). BMC's problem, besides being dumb enough to provoke a
DJ action, was that Paymentech by itself did not infringe the process claims; it
took firms downstream, unrelated to Paymentech, to complete the claimed
invention. The district court granted summary judgment of non-infringement. In a
thoughtful no-brainer, the appeals court affirmed, marking guidelines for
infringement when multiple parties are involved, and a cautionary note for
claims drafting.
Continue reading "Infringing Parties"
Posted by Patent Hawk at 7:32 PM | Litigation
September 20, 2007
Mental Process
Claiming
in his patent application legal arbitration, Stephen
Comiskey appealed his patent board rejection from
35 U.S.C. § 103(a). The appeals court didn't care about
obviousness, finding of its own volition Comisky stepping out of bounds on
statutory subject matter: mental processes are not patentable, but "a claim that
involves both a mental process and one of the other categories of statutory
subject matter (i.e., a machine, manufacture, or composition) may be patentable
under
§ 101." In a case-law flip-flop return from the grave: the
"technological arts" test.
Continue reading "Mental Process"
Posted by Patent Hawk at 11:58 PM | § 101
Ephemeral Signals
Petrus
Nuijten appealed to the CAFC patent office rejection of his encoded signal
claims. The disclosed technology went to reducing distortion from introducing a
"watermark" into signals. Nuijten had claims granted for the encoding process, a
device that performs such process, and storage for holding resultant signals.
The signals themselves were found unpatentable subject matter, outside the scope
of 35 U.S.C. § 101, by the patent appeals board. The CAFC affirmed, via
long-winded analysis. The appeals court decision followed the precedent of the
1853 Supreme Court Morse code ruling without acknowledging it.
A logically compelling dissent found the signals an article of manufacture, and thus statutory. Ephemeral existence, which the majority found germane, was an irrelevancy to the dissenter - the claimed signals last as long as they need to.
Continue reading "Ephemeral Signals"
Posted by Patent Hawk at 10:22 PM | § 101
September 19, 2007
Skirting Privilege to Evade Sanctions
Heller
Ehrman lawyers, who face sanctions for allegedly
concealing
documents during discovery in Qualcomm patent assertion against Broadcom,
asked the court Monday to let them present privileged attorney-client documents
in their defense. Another firm facing the same prospect,
Day Casebeer Madrid & Batchelder, was
vicarious, but did not participate in the motion. The conflict runs deep.
Continue reading "Skirting Privilege to Evade Sanctions"
Posted by Patent Hawk at 11:07 PM | Litigation
Unappreciated
OrthoAarm
held patent
6,257,883, claiming a bracket for orthodontic braces. OrthoArm sued
distributor American Orthodontics for infringement; they settled for a 4%
royalty. American got manufacturer Adenta to chip in half of the royalty
payment. Adenta then got it into its head that the patent was no good, and
advised American and OrthoArm it was going to stop paying royalties. American
replied by letter that would be naughty; that American would "pursue its
available legal remedies to protect its rights." So Adenta filed for declaratory
judgment in the Eastern District of Wisconsin, that '833 was invalid and
unenforceable.
Continue reading "Unappreciated"
Posted by Patent Hawk at 10:54 AM | Prior Art | Comments (2)
September 17, 2007
Calling Card
An
Eastern Texas jury slapped AT&T with a tab of $156 million for willfully
infringing calling card patents owned by TGIP (Thank Goodness IP?). That tab
could be tripled by the court. As it is, the award ranks as one of the largest
by a jury in the district.
Continue reading "Calling Card"
Posted by Patent Hawk at 11:53 PM | Damages
September 16, 2007
Ordinary Observer
Arminak and Calmar sell trigger sprayers to makers of liquid household
products. Arminak sought declaratory judgment from two of Calmar's design
patents for sprayer shrouds:
381,581 &
377,602. The district court found non-infringement in summary
judgment. On an affirming appeal, the CAFC lays down case law on assessing design patent
infringement, finding an "ordinary observer" to have a keen eye; akin to SCOTUS KSR in having "ordinary" be extraordinary.
Overturning 136-year precedent, the virulent anti-patent KSR disease spreads to
design patents.
Continue reading "Ordinary Observer"
Posted by Patent Hawk at 8:00 PM | Design Patents | Comments (2)
September 14, 2007
Examination Failure
Accelerated examinations, where an applicant provides
rigorous self-examination of a patent application, is largely replicated in the
Examination Support Document (ESD) that allows exceeding the "5/25"
examination claims limits being imposed by the USPTO. The experiment of
accelerated examinations is proving an abysmal failure for those involved. Hal Wegner mouths off about USPTO management "shortcomings" and abrogation of
law by fiat.
Continue reading "Examination Failure"
Posted by Patent Hawk at 9:47 PM | Prosecution
September 13, 2007
Tits-Up?
Victoria's
Secret has filed a
summary judgment motion to pinch
7,152,606, claiming a nipple cover. The motion accuses the USPTO of abusing
its discretion in reviving the application that led to the patent after it was
left abandoned for five years. It's shocking to even consider that the patent
office would spark any controversy, particularly face an accusation of flaunting
its authority. The only thing Miss Victoria wants the patent pushing up is
daisies (but not those pictured).
Posted by Patent Hawk at 6:22 PM | Litigation | Comments (1)
Locked Out
ACCO
Brands sued ABA Locks and Belkin for infringing patents claiming locks stopping
computers from getting legs. Without legs, no traction, ACCO discovered. The
lesson from the CAFC: "In order to prevail on an inducement claim, the patentee
must establish “first that there has been direct infringement, and second that
the alleged infringer knowingly induced infringement and possessed specific
intent to encourage another’s infringement.”"
Posted by Patent Hawk at 12:00 AM | Litigation
September 12, 2007
Self-Examination
The
USPTO has released its
Examination Support Document (ESD) Guidelines, prerequisite under the new
examination regime for any applicant daring to "present more than five
independent claims or more than twenty-five total claims in an application."
It's shocking to think anyone would need so many claims; they must be inventing
something.
Continue reading "Self-Examination"
Posted by Patent Hawk at 10:38 PM | Prosecution | Comments (2)
Death Certificate Reissue
The
CAFC took the unusual step of
reissuing its
July 11
non-precedential obviousness wallop as a
precedential decision, so it could be used to maintain the KSR
fiction that the statutory "ordinary skill in the art" has an inventor's level
of skill and education, as well as being omnificent.
Continue reading "Death Certificate Reissue"
Posted by Patent Hawk at 11:30 AM | Case Law
Hardball
Seems
as if Rep. Howard Berman pulled out all the stops to get H.R. 1908 passed.
Berman reportedly nudged the opposition with gentle persuasion: "This is very
important, and you have other stuff in front of me." Democracy at work. Read the
full report from Lawrence Ebert at IPBiz.
Posted by Patent Hawk at 8:34 AM | The Patent System
September 11, 2007
Twisted in the Wind
Raymond Jenski, prosecuting an HP patent application (09/938,465) by inventor
John Milton, had a phone interview with USPTO examiner Jean Corrielus over an
outstanding final office action. The examiner told Jenski that he would issue a new
office action, rendering moot any reply Jenski might make. So Jenski waited. But
no new action was issued. As a result, in due time, the patent office deemed the
patent abandoned, and refused to revive the application.
Continue reading "Twisted in the Wind"
Posted by Patent Hawk at 10:47 PM | Prosecution
Obvious Viper
Aventis
sued Lupin for infringing
5,061,722 after Lupin filed an FDA drug application (ANDA).
'722 goes to a blood medication, Altace. District court summary judgment found
infringement under the doctrine of equivalents, and a pre-KSR bench trial rendered the
patent "not invalid," as the appeals court backhandedly put it. Which is to say,
on appeal, the CAFC took the double negative out, finding the patent "would have
been obvious." KSR strikes again.
Continue reading "Obvious Viper"
Posted by Patent Hawk at 2:31 PM | Prior Art | Comments (5)
Imclone Settles
With
trial looming, ImClone Systems settled its patent woes with Repligen and MIT,
forking out $65 million to keep selling its Erbitux cancer treatment. Repligen
badly needed the boost.
Continue reading "Imclone Settles"
Posted by Patent Hawk at 1:07 AM | Litigation
September 8, 2007
Watch the Gobblers
With
the House having dumped its patent load, aka passed H.R. 1908, eyes roll to the
Senate, to watch how S. 1145 fares, the Senate counterpart.
Hal Wegner
prognosticates in emphatic italics: "It is absolutely certain that H.R.
1908 as passed by the House will never be finally enacted into law
without significant amendments. Passage of a differently worded bill in the
Senate as S. 1145 or some future or amended bill would then lead to a Conference
or other means for creation of a common bill."
Continue reading "Watch the Gobblers"
Posted by Patent Hawk at 5:44 PM | The Patent System
September 7, 2007
Through A Goose
The
House approved H.R. 1908, 220-175. Rep. Howard Berman, D-California, a lead
sponsor, honked: "The moment is ripe to move the patent system forward to meet
the challenges of the 21st century. Serious flaws have to be fixed for our
system to remain robust now and long into the future."
Continue reading "Through A Goose"
Posted by Patent Hawk at 2:26 PM | The Patent System | Comments (2)
On the Floor
H.R.
1908 is scheduled to be wheeled on the floor for all to view and comment; one
hour of debate allotted. Here is a fresh
legislative bulletin listing last-minute tweaks.
Posted by Patent Hawk at 11:29 AM | The Patent System
Prosecution Estoppel Bolted Down
Harvey
Gillespie got a couple of patents for mine roof bolts:
5,230,589 and
5,259,703, which Dywidag Systems got nailed infringing. Dywidag asserted
that prosecution estoppel narrowed claim construction, but the argument didn't
hold in district court. The appeals court hit the roof.
Continue reading "Prosecution Estoppel Bolted Down"
Posted by Patent Hawk at 1:32 AM | Claim Construction
Searching BPAI Decisions
USTPO
Board of Patent
Appeals and Interferences (BPAI) final decisions are now
text searchable.
Posted by Patent Hawk at 12:38 AM | The Patent Office
September 6, 2007
Chiming In
In
a
statement of administration policy, the White House calls the apportionment
of damages portion of H.R. 1908 "unwarranted and risks reducing the rewards from
innovation." Otherwise, niggling concerns aside, it's pretty much along for the
ride.
Posted by Patent Hawk at 3:30 PM | The Patent System
Totaled
ATI
sued a bevy of car makers for infringing
5,231,253, which claimed a velocity sensor for detecting side impacts. The
defendants drove a frontal assault: that the claims were invalid for failing
to meet the written description requirement of
35 U.S.C. § 112, ¶ 1, and lack of
enablement. The patent crashed.
Posted by Patent Hawk at 3:13 PM | § 112
Angst
The
House vote on H.R. 1908, the Patent Reform Act of 2007, is scheduled for Friday,
but rumors are flying that the Democratic leadership will pull the bill because of
voiced opposition by organized labor. Trepidation is palpable.
Posted by Patent Hawk at 11:29 AM | The Patent System
Explain Thyself
Jon
Dudas, USPTO head honcho, will serve a heaping of justification for, and
explanation of, the new examination rules, and doubtlessly be griddled for it,
in a panel
web conference sponsored by Foley & Lardner: Wednesday, September 12, 9:30 am ET.
Spatulas are limited, so register ASAP.
Continue reading "Explain Thyself"
Posted by Patent Hawk at 12:19 AM | The Patent Office
September 5, 2007
Calibration
4,743,902,
owned by Mitutoyo, claiming a
device for electronically measuring an object's movement, has been a hex to
Central Purchasing. Central settled with Mitutoyo in 1994 over a 1992 assertion
of '902, agreeing not to further infringe. Central lost a declaratory motion in
1995 that sought to invalidate the patent. In a suit filed in 2003, Central got
collared for infringing again. Of course, Central appealed. Mitutoyo also
appealed, as its pitch for willful infringement got tossed by the trial court.
Continue reading "Calibration"
Posted by Patent Hawk at 11:46 PM | Litigation
September 4, 2007
Markush This
Hal Wegner
tears into the
USPTO's proposed wanking of Markush claims. "Above all, the proposed
rulemaking unduly complicates and frustrates biotechnology and pharmaceutical
applicants from obtaining fair coverage for their pioneer innovations."
Continue reading "Markush This"
Posted by Patent Hawk at 10:41 PM | The Patent Office
The Breeze
The
Washington Post summarizes the polarity between serially infringing computer
companies and patented-up big pharma towards the Patent Reform Act of 2007. The
House is expected to take up the patent cudgel
this Friday,
while the Senate lolls. The Congressional Budget Office thinks the cost impact
on the government of the Act would be "negligible,"
and that's as far as they care to peruse.
Meanwhile, James Malackowski, CEO of patent broker
Ocean Tomo, reminds what's at stake.
Posted by Patent Hawk at 9:46 PM | The Patent System | Comments (1)
September 3, 2007
A Vista for Visto
Visto
sued Microsoft for infringing three data synchronization patents:
6,085,192;
6,708,221 and
7,039,679. Microsoft counterclaimed with three of its own data sync patents:
5,946,691;
6,125,369 and
6,560,655.
Claim construction generally went Visto's way.
Continue reading "A Vista for Visto"
Posted by Patent Hawk at 8:13 PM | Claim Construction
September 2, 2007
In the Know
If there is any single interest group sincerely interested in a quality
patent regime for its own sake, as point of professional pride, it is patent
examiners. POPA, the examiners' professional organization, is firmly against the
Patent Deform Act of 2007.
What is most significant is that no one in Congress thought to ask POPA, as the statutory sausage had been stuffed by bribes from geek boys in the computer biz who just want to get on with da bidness of intellectual property theft, and paying no mind, or tab, for doing so.
Continue reading "In the Know"
Posted by Patent Hawk at 12:12 AM | The Patent System | Comments (7)
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