September 27, 2007
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."
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."
September 26, 2007
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.
September 25, 2007
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."
September 24, 2007
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.
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.
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%.
September 23, 2007
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.
September 21, 2007
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.
September 20, 2007
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.
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.
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.
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.
September 17, 2007
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.
September 16, 2007
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.
September 14, 2007
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.
September 13, 2007
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).
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.”"
September 12, 2007
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.
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.
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.
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.
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.
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.
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."
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."
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.
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.
Searching BPAI Decisions
September 6, 2007
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.
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.
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.
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.
September 5, 2007
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.
September 4, 2007
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."
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.
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.
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.